Pros and Cons of Post-Nuptial Agreements

A post-nuptial agreement, or postnup as it is often called, is a legal agreement that is signed after the marriage. It can include the same points as a pre-nuptial agreement, or prenup, which is signed prior to marriage, but often addresses different issues and topics.

If you are contemplating a post-nuptial agreement, you need to consider any potential pros and cons and contact an experienced Florida family law attorney to help ensure your postnup stands up in the courts.

Potential Pros of a Postnup Agreement

Some people think postnuptial agreements are a great idea, especially if it is your second or third marriage, and you have kids from a prior marriage you want to protect during asset distribution.

For some couples that are experiencing a troubled marriage, creating a document that outlines the issues they are struggling with may actually strengthen their marriage, especially with the right legal counsel guiding them through the process.

Post-nuptial agreements can be drafted to clarify or add on to an existing prenup that is already in place. It can provide extra security for some couples and address issues or situations that may not have existed prior to the marriage. Because a postnup is formed after the marriage, simple things like chores or duties at home may be easier to define because you have settled into a routine.

In the case of a postnup due to a previously cheating spouse, it can protect you from future infidelity by addressing your divorce rights and encouraging your spouse to work on the marriage. Even if infidelity is not the reason for drafting the agreement, it can still protect you and simplify a potential divorce. For couples trying to avoid divorce, a postnup may settle one or more simple issues in the marriage that are deemed to be sticking points or a roadblock to a successful marriage.

Potential Cons of a Post-Nuptial Agreement

For some couples, the signing of a post-nuptial agreement can put a damper on the marriage, as it signals that the bond is not forever and, at some point, separation and/or divorce are inevitable. Other times, a postnup is drafted because of infidelity issues, or other issues that have the couple considering legal separation and/or divorce. Because of that, communication and trust in the marriage are already breaking down, so discussing financial matters and agreeing on terms can make things worse.

If you are signing a post-nuptial agreement after infidelity in an attempt to win back your spouse, be cautious about over-delivering, or you might find yourself headed for divorce anyway. As Florida is a no-fault divorce state, you do not need to prove infidelity to file. If both spouses are really ready to work on the marriage after an affair, a post-nuptial agreement might help; however, if the scorned spouse is just waiting for the agreement to be finalized, the whole exercise was worthless and you might be on the losing end in a messy divorce. Either way, be wary if you are hoping this will prevent a cheating spouse. Some experts do not believe post-nuptial agreements drafted to deter infidelity will work in the first place.

Postnups can make a divorce or survivorship claim more complicated. Many times, couples that attempt to create a postnup without legal assistance will find the document does not include all the necessary information or has terms that are not legally enforceable. In a survivorship claim, the postnup may become an issue if it contradicts the terms of an existing will.

Should You Hire a Florida Attorney to Draft Your Post-Nuptial Agreement?

If you and your spouse are considering filing a post-nuptial agreement, you should discuss your options with an experienced Florida attorney to ensure your rights are protected. Please contact West Palm Beach family law attorney William Wallshein for a free consultation.