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Much like a prenuptial agreement, a post nuptial agreement is an agreement that is drawn up in order to protect the assets of one of the individuals in the marital union; except a post nuptial agreement occurs after the marriage. This is often necessary when one spouse is about to receive a large inheritance and they wish to protect those assets in the event of a divorce or separation, or when both spouses wish to come to an agreement on certain marital assets in order to avoid a divorce or separation.
Under Florida law, the parties to a post nuptial agreement may make a contract pertaining to:
The rights and obligations of the parties in any of the property of either or both of them whenever and wherever acquired or located; the right to buy, sell, use, transfer, exchange, lease, assign, mortgage, encumber, dispose of, or otherwise manage and control property
The disposition of property upon separation, marital dissolution, death, or the occurrence or non occurrence of any other event;
The establishment, modification, waiver or elimination of alimony;
The making of a will, trust or other arrangement to carry out the provisions of the agreement;
The ownership rights in and disposition of the death benefit from a life insurance policy
The validity of Florida post nuptial agreements are governed by the seminal Florida Supreme Court decision in Casto v. Casto, 508 So.2d 330 (Fla. 1987). According to the Casto decision:
The critical test in determining the validity of a post nuptial agreement is whether there was fraud or overreaching on one side, or, assuming unreasonableness, whether the challenging spouse did not have adequate knowledge of marital property and income of the parties at the time the agreement was reached;
A post nuptial agreement is not enforceable if the party against whom enforcement is sought proves that the agreement was the product of fraud, duress, coercion or overreaching or if the agreement makes an unfair or unreasonable provision for that spouse by demonstrating the parties’ relative situations, including their respective ages, health, education, and financial status.
While the State of Florida recognizes the legality of post nuptial agreements, they are often challenged. In order to avoid expensive problems enforcing your post nuptial agreement in the future, it is essential that you have it drawn up by a skilled and knowledgeable family law attorney. The lawyers at Estefano Law, P.A. will assist you in drafting a post nuptial agreement with terms that work for you and your family.