Cape Coral Lawyers Helping People Protect Their Assets
People generally enter into marriages with the mindset that they will stay married for the rest of their lives. They often are aware, though, that many marriages end in divorce, and that divorces are frequently contentious, in part due to disagreements over how property and assets should be divided. As such, it is prudent for people who are contemplating getting married or who are already wed to enter into agreements establishing their financial rights and obligations. If you have assets you wish to protect or were approached by your spouse or fiancé regarding a marital agreement, it is prudent to speak to an attorney. At Lusk, Drasites & Tolisano, P.A, our skilled Cape Coral lawyers have ample experience negotiating and drafting prenuptial and postnuptial agreements, and we can help you to protect your interests in a respectful and efficient manner. We regularly aid people with family law matters in Cape Coral and other cities throughout Florida.
Prenuptial and Postnuptial Agreements in Florida
Florida law allows people to delineate certain rights and obligations via prenuptial and postnuptial agreements. Certain factors must be met for marital agreements to be valid, however. Specifically, they must be in writing and signed by both parties.
Prenuptial agreements are essentially contracts that a couple enters into prior to marriage that are effective upon marriage. They can be used to dictate rights with regard to jointly or individually owned property, what property will remain separate and what will be considered marital property, and how any marital property will be divided if a couple divorces. Prenuptial agreements can also establish whether either party is entitled to alimony if the marriage ends. There are limitations to what rights can be defined by prenuptial agreements, though. Specifically, they cannot be used to dictate the terms of child custody for any living or future children or whether either party may receive or be obligated to pay child support.
Postnuptial agreements are similar to prenuptial agreements in that they must also be in writing and must be signed by both parties. They are also subject to the same limitations concerning parental rights. Postnuptial agreements differ from prenuptial agreements in that they are entered into after a couple is already married and are valid upon signing.
Marital Agreements and Estate Rights
Prenuptial and postnuptial agreements are not only used to define property and financial rights and obligations but can also be used to create a will or establish rights to an estate. Marital agreements are often used for this purpose when one or both parties entering into the agreement has children from an earlier relationship. Pursuant to Florida law, prenuptial and postnuptial agreements can be used to waive the right to elective, intestate, or pretermitted shares, exempt or homestead property, or family allowance. If a prenuptial or postnuptial agreement includes terms relating to the right to a spouse’s estate, it must be signed in the presence of two witnesses.
The disclosure required for marital agreements regarding estates differs depending on whether the agreement is entered into before or after marriage. In other words, parties entering into a postnuptial agreement must make a fair disclosure of their estates for the agreement to be valid, but no such disclosure is necessary for prenuptial agreements.
Enforcement of Prenuptial and Postnuptial Agreements
Courts generally enforce prenuptial agreements, but they may be disregarded in certain circumstances. A party seeking to set aside a prenuptial agreement must show that it was the product of coercion, fraud, overreaching, or duress, or was otherwise not entered into voluntarily. A court may also refuse to enforce a prenuptial agreement on the grounds that the party opposing enforcement was not provided with a reasonable disclosure of the other party’s assets and financial obligations and did not waive the right to the disclosure. Prenuptial agreements will not be set aside merely because they are unfavorable to one party, however.
In contrast, the Florida courts have disregarded postnuptial agreements on the basis that they are unfair or unreasonable to the spouse challenging the enforcement of the agreement. The courts will evaluate the health, age, education, and financial status of each spouse to assess whether the agreement adequately supports the challenging spouse, and if it does not, it may be considered unreasonable.
Consult an Experienced Florida Family Law Attorney
Prenuptial and postnuptial agreements are practical tools that can help people protect their assets and avoid protracted litigation in the event that they divorce. If you are interested in entering into a marital agreement or were approached by your future or current spouse about such a contract, it is smart to consult an attorney about your rights. The experienced Cape Coral lawyers of Lusk, Drasites & Tolisano, P.A. are adept at handling the complex issues that often arise with marital agreements, and if you engage our services, we will work diligently to help you seek your desired outcome.
We regularly help people with family law matters in Cape Coral, Fort Myers, and Naples, where our offices are located. You can reach us at (239) 908-4930 or through our online form to set up a consultation.
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