Postnuptial Agreement: What is it and can I get one after I’m married?

After a couple gets married, there can be circumstances that come up which causes them to want to memorialize certain agreements concerning their assets and/or debts in the event of divorce. This is called a postnuptial agreement.

What is a postnuptial agreement?
A postnuptial agreement in Florida is much like a prenuptial or antenuptial agreement in that it is a family law contract between spouses that sets forth terms for the splitting of assets and/or debt, should the marriage end in divorce. In addition, the postnuptial agreement can determine the terms for alimony. The contract can also be used to exclude specific assets and/or debts from being considered marital property.

What can be included?

There are many specific terms a couple may contemplate when entering into a postnuptial agreement. The only item that is forbidden by Florida law is the waiver of child support. A postnuptial agreement may include, but is not limited to, the following:

• Alimony – The parties may agree to the amount and frequency of alimony. For example, the parties may decide that upon divorce, a lump sum will be paid instead of monthly payments. The parties may also agree to waive support.
• Assets – The parties can agree to the division of assets. The parties may split it evenly or decide that each will keep their own earnings. For example, the parties may choose to retain their own 401K accounts but upon the sale of the marital residence, they will divide the proceeds equally.
• Debt – The parties can agree to an equal division of debt accumulated or that each will pay off their own debt accordingly. For example, if one spouse decides to go back to school and takes out a loan, they will not hold the other spouse responsible upon divorce.
• Parenting plan – The parties can include in their postnuptial agreement that they will share responsibility and timesharing 50/50. They can also include a holiday schedule.

Requirements of a prenuptial 

In order to be valid a postnuptial agreement in Florida, the contract must not be the result of fraud, duress, coercion, or overreaching by either party. 

Both parties must provide full disclosure of assets, including a financial affidavit. If it is determined that an agreement was entered into without full disclosure of assets, then the court can void same and find it unenforceable 

Upon completion of drafting the agreement, both parties must have their own attorney review the document before signing. In addition, both parties must sign in front of a notary.

About the Author

Tamara Grossman is an attorney with eight years of courtroom experience in family law and other legal matters. Ms. Grossman has been a partner in a multistate litigation law firm and, most recently, was an attorney at a Boca Raton family law firm.