Negotiating and Preparing Pre- and Post-Marital Agreements

Negotiating and Preparing Pre- and Post-Marital Agreements

Under Florida asset protection law, what does negotiating and preparing pre- and post-marital agreements entail?

The negotiation and preparation of pre- and post-marital agreements are critical components of asset protection planning, ensuring safeguards for both parties’ interests in the event of divorce or death.

In the context of asset protection law, pre-marital agreements (also known as prenuptial agreements) are contracts entered into before marriage to establish each spouse’s financial rights and obligations during the marriage and after its dissolution. Post-marital agreements (or postnuptial agreements) serve a similar purpose, but a couple executes these agreements after marriage. Both types of agreements can protect assets, outline property division, and address spousal support issues.

One example of negotiating and preparing pre- and post-marital agreements under Florida law is the application of the Uniform Pre-Marital Agreement Act (UPAA), codified in Florida Statutes § 61.079. The UPAA provides guidelines for the enforceability of pre-marital agreements, such as requiring that the agreement is in writing, signed by both parties, and entered voluntarily.

Another example concerns the rules governing post-marital agreements. According to Florida case law, post-marital agreements must be fair, reasonable, and made in good faith. The landmark case of Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962), established the foundation for evaluating the validity of post-marital agreements in Florida. Courts consider factors such as full disclosure of assets, the opportunity to consult with independent legal counsel, and the absence of fraud or duress.

By adhering to these guidelines and properly negotiating and preparing pre- and post-marital agreements, couples in Florida can effectively protect their assets and ensure a smoother legal process in the event of divorce or death.

Need help with a matter relating to negotiating and preparing pre- and post-marital agreements? Schedule your consultation today with a top asset protection attorney.

Which asset protection laws and regulations relate to negotiating and preparing pre- and post-marital agreements in Florida?

As mentioned, Florida’s version of the UPAA is codified in Florida Statutes § 61.079, setting forth specific requirements for enforceable pre-marital agreements. These agreements must be in writing, voluntarily entered into, and signed by both parties.

Additionally, the Florida Family Law Rules of Procedure address matters related to pre- and post-marital agreements, such as Rule 12.285, which governs mandatory disclosure of financial information. Before agreeing, this rule ensures that both parties have adequate knowledge of each other’s assets and liabilities.

The Internal Revenue Code (IRC) may impact pre- and post-marital agreements at the federal level, as these contracts often address tax-related issues. For instance, provisions regarding alimony and property transfers should comply with relevant IRC sections to avoid unintended tax consequences.

What are common issues regarding negotiating and preparing pre- and post-marital agreements that lead to asset protection litigation?

The following issues are among the most common in actions regarding negotiating and preparing pre- and post-marital agreements in asset protection law matters

• Inadequate disclosure: Failing to disclose assets and liabilities fully can lead to litigation. The agreement may be deemed unenforceable if a court finds that one party withheld crucial financial information.
• Duress or undue influence: If a party claims they were coerced or pressured into signing the agreement, it may be challenged in court.
• Unconscionability: Excessively one-sided or unfair agreements may be contested and potentially invalidated.
• Ambiguity: Poorly drafted or unclear provisions in the agreement can lead to disputes and litigation as parties seek clarification or attempt to enforce their interpretation of the terms.
• Invalid provisions: Certain provisions, such as those attempting to limit child support or dictate child custody, are unenforceable by law and may cause the entire agreement to be questioned in court.
• Changes in circumstances: Significant changes in the parties’ financial or personal circumstances may lead to litigation, as one party may seek to modify or set aside the agreement based on these changes.

When a set of facts meets the requirements of asset protection litigation, there are many paths a claimant may take. We are value-based attorneys at Jimerson Birr, which means we look at each action with our clients from the point of view of costs and benefits while reducing liability. Then, based on our client’s objectives, we chart a path forward to seek appropriate remedies.

To determine whether your unique situation may necessitate litigation, please contact our office to set up your initial consultation.

What strategies minimize the risk of litigation over negotiating and preparing pre- and post-marital agreements?

To minimize the risk of litigation over negotiating and preparing pre- and post-marital agreements, a couple should consider the following strategies:

• Retain legal counsel experienced in family and asset protection law: Engaging a knowledgeable attorney with expertise in Florida asset protection and family law ensures that agreements are drafted and negotiated according to relevant statutes and case law.
• Full financial disclosure: Provide a complete and accurate disclosure of all assets, liabilities, and sources of income to avoid disputes arising from inadequate or misleading information.
• Fair and reasonable terms: Draft balanced and equitable agreements, reducing the likelihood of claims of unconscionability, which could render the agreement unenforceable.
• Avoid duress or undue influence: Ensure both parties have sufficient time and opportunity to review and consider the agreement, ideally with independent legal counsel, to prevent claims of coercion or pressure.
• Clear and unambiguous language: Use concise, specific language when drafting agreements to avoid misunderstandings and disputes over the interpretation of terms.
• Address potential changes in circumstances: Include provisions for modifying the agreement in the event of significant life changes, such as the birth of a child or a substantial increase in income or assets.

Frequently Asked Questions

1. Can a pre- or post-marital agreement address child custody and support issues?
   While pre- and post-marital agreements can address many aspects of asset protection and marital rights, they generally cannot dictate child custody or limit child support. Florida courts prioritize the child’s best interests when determining custody and support, and any attempt to pre-determine these matters in a marital agreement is likely to be unenforceable.
2. Can a pre- or post-marital agreement be modified after it is signed?
   Yes, pre- and post-marital agreements are modifiable if both parties agree to the changes. The modification should be in writing, signed by both parties, and ideally reviewed by independent legal counsel to ensure the changes are enforceable and compliant with relevant laws and regulations.
3. What happens if a pre- or post-marital agreement is deemed unenforceable by the court?
   If a court finds a pre- or post-marital agreement unenforceable, the agreement may be partially or entirely invalidated. In such cases, the court will typically apply default state laws governing asset division, alimony, and other relevant matters, which may result in an outcome that differs from the parties’ original intentions when drafting the agreement.

Have more questions about an asset protection-related situation?

Crucially, this overview of negotiating and preparing pre- and post-marital agreements does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique, and the laws can produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively.

Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain a tireless advocate every step of the way. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to set up a consultation.