Prenuptial vs. Postnuptial Agreements: What You Need to Know

Florida’s laws regarding marriage and property ownership are strict. Under these laws, couples automatically share ownership of assets and debts they acquire during the marriage, which may not be what you want.

That is why prenuptial and postnuptial agreements exist. These contracts are not just valuable for a divorce. Couples who want to structure their relationships or assets differently can use one of these contracts to redefine how their property is handled during their marriage as well. Below, you’ll learn the differences between these two types of agreements, why they’re valuable, and how to make sure they are legally binding. 

What Is a Prenuptial Agreement?

For years, prenuptial agreements were the standard solution for couples who wanted to protect their assets. These agreements are signed before the couple gets married, ensuring they apply to all marital assets they acquire. 

Prenuptial contracts can cover a variety of subjects. They often address issues such as:

  • Whether certain assets will remain separate property
  • Whether other assets will be considered joint property
  • How joint property will be treated during a separation or divorce
  • How estate plans should be handled

In addition, these contracts may cover non-financial topics, including:

  • How the couple will divide their marital responsibilities
  • Expectations for both parties’ work schedules
  • How the couple will address infidelity and the potential consequences thereof
  • Confidentiality requirements for the couple’s private life

Like any other written contract, a prenuptial agreement requires both spouses to agree to the terms and sign the document. If this occurs and the contract is otherwise legally binding, the couple and the legal system can use the agreement to resolve disputes and make decisions throughout their relationship.

What Is a Postnuptial Agreement?

Postnuptial agreements are very similar to prenuptials. As the name implies, they are written and signed after a couple has already married. These contracts are becoming more popular as the social stigma against prenuptial agreements rightfully fades. 

A postnuptial agreement may cover all of the same subjects listed above. As long as it is well-written, it is just as likely to be legally binding should it be presented in court. A postnuptial contract is an excellent alternative for couples who did not sign an agreement before their wedding. 

Why Get a Prenuptial or Postnuptial Agreement?

Many reasons outside of divorce may warrant a marital agreement. Common reasons to request one of these contracts include:

  • You are marrying again. If you have already been married once, your financial and familial situation will likely be more complicated than someone entering a first marriage. You can use a nuptial contract to address how assets and children from your previous marriage will be handled and avoid confusion later. 
  • You have an estate you want to protect. If you expect an inheritance or have family heirlooms you wish to retain, you can include a clause in your contract specifically setting these assets aside as separate property. 
  • You own a business. Whether you run a family business or you’re building a startup, a new marriage may make other stakeholders nervous. Your prenuptial or postnuptial contract can reassure them that the company is in safe hands and won’t suffer if something happens to your relationship.
  • You want to clearly label boundaries and expectations. If you and your partner prefer structure, your contract can define the exact rules and expectations you both will follow. 

Essentially, you can use these agreements to protect children, assets, and businesses and provide more structure to your relationship.

What Makes a Pre- or Postnuptial Agreement Legally Binding?

Prenuptial and postnuptial agreements often lead to spouses waiving some of their legal rights. For example, if the contract states that all intellectual property will remain the separate property of the spouse that created it, the other party is ceding their legal right to it. Any contract that reduces someone’s rights like this is held to high legal standards. 

For either type of contract to hold up in court, it needs to meet the following criteria:

  • It must be in writing and freely signed by both spouses
  • It must be witnessed and notarized
  • It cannot be unreasonable, unjust, or cause either spouse significant undue hardship
  • Both spouses must understand and agree to the terms of the contract

The last criterion is often the most difficult. It’s considered best practice for both spouses to have independent legal counsel regarding the contract to ensure they have a complete understanding of what they are signing. 

Work with Expert Family Law Attorneys at Bergman Family Law

If you believe a prenuptial or postnuptial agreement may be in your best interest, you can reach out to the experts at Bergman Family Law. Our qualified attorneys will guide you through the process of writing a fair, legally binding contract that covers the details that matter more to you. You can begin the process by calling (954) 419-4358 or reaching out online to schedule your initial consultation.