What are Nuptial Agreements?

All Three Partners at RH&G Legal

Nuptial Agreements are contracts made between parties, either before or after they enter into a marriage, which address asset ownership and distribution in the event of divorce or death. Nuptial Agreements signed before the marriage date are commonly called Prenuptial Agreements, Pre-Marital Agreements or Anti-Nuptial Agreements. Nuptial Agreements signed after the marriage date are commonly referred to as Post-Nuptial Agreements. Florida allows for both types of Nuptial Agreements. Other states, such as Ohio and Nebraska, do not currently allow Postnuptial Agreements.

Some things are the same in all Nuptial Agreements. In order for either type of Nuptial Agreement to be valid, the parties must enter into the agreement voluntarily. Additionally, the financial picture for each individual must be properly disclosed. Lastly, the agreement should be a bargained for exchange between the parties, which must be signed in the presence of witnesses and a notary. It is strongly recommended that each party have separate counsel to represent them in this process. Being able to prove that each party had separate counsel in the process will help the document withstand scrutiny if challenged in court proceedings. In Florida, neither Prenuptial nor Postnuptial Agreements can dictate current or future child support issues.

Prenuptial Agreements are more common and are less expensive to prepare. They usually explain the rights of each spouse to the assets of the other spouse, in the event of a death or divorce. Prenuptial Agreements can cover all assets or just some assets. They can also be used for estate planning purposes. For example, many Prenuptial Agreements are prepared solely to deal with future inheritance or gifting rights of one of the spouses. These versions do not have any control over non-inherited assets owned by either party to the marriage. Prenuptial Agreements can also be prepared merely to establish guidelines for alimony in the event of a divorce. These agreements should be prepared and signed at least one month prior to the wedding date if at all possible – this strengthens the position that the agreement was signed voluntarily by all parties.

Postnuptial Agreements are less common. They are more expensive to prepare because each spouse’s assets must be formally valued in order for the Postnuptial Agreement to be valid. This is different from the Prenuptial Agreement, whereby each party must merely disclose their assets and give an educated estimate as to its value. For Postnuptial Agreements, appraisals for real estate, businesses and hard to value assets is required. A disclosure and exchange of bank statements, brokerage statements and tax returns must also be made. The rule here is different because the already married party is actually giving something up that they already have some right too.

If you are considering a Prenuptial Agreement or Postnuptial Agreement, you should understand that these agreements take significant time and resources to prepare. Other options may be available for such items as homestead property and some retirement accounts. Anyone considering entering into a Nuptial Agreement of any kind should meet with an attorney as early in the process as possible to educate themselves on the process and to consider if other options are available.

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