Bauer Family Law - Postnuptial Agreement
From Equity in Marriage
Creating a Postnuptial Agreement
Marriage is an emotional and legal union. If you walked down the aisle without a prenuptial agreement,
your partnership became susceptible to your state's marriage laws in the case of death or divorce.
Unfortunately, these laws are vague and, in most states, a judge makes decisions about property
distribution should your marriage end. It's never too late to define and protect your own partnership. The
process of creating a postnuptial agreement, a marriage contract created anytime after the wedding,
can be a positive influence on both the emotional and legal dynamics of your relationship.
We certainly recommend discussing a postnuptial agreement if the financial status of your partnership
changes through an inheritance, career change, etc. We also advise all constituents, regardless of the
current financial status of the partnership, to consider taking the time to discuss their partnership and
create a postnuptial agreement (also referred to as post marriage agreements or simply marriage
agreements). It is never easy to discuss topics like money and divorce, but our experience has shown
that these conversations can actually strengthen your relationship. Breaking communication barriers
about sensitive issues can help make your marriage even stronger and more balanced.
We've compiled the "nut and bolts" of a postnuptial agreement to help you and your spouse become
more familiar with what a postnuptial agreement is, what states they are valid in, and what to include in
What is a postnuptial agreement?
A postnuptial agreement is a contract between spouses. It is similar to a prenuptial agreement except it
is signed during marriage. A postnup is entered into in contemplation of an ongoing, viable marriage.
There are two basic rules that should be followed to safeguard your agreement: full and fair disclosure
and separate and independent counsel.
What you need to consider:
In general, you will want to consider and discuss the following with your spouse:
- Discuss all the assets and debts of your relationship as well as future income opportunities.
- Discuss the current financial status of your relationship including spending habits, roles and
responsibilities and any concerns you have over money matters.
- Be open and honest about your assumptions and expectations of how property would be
handled in the case of death or divorce. Draw up and sign the agreement with the help of two
lawyers. It is critical that you are each represented independently to maintain the contracts legal
- Revisit the contract periodically, especially if your lifestyle or financial status changes drastically.
If you move to a different state, check to make sure the laws or legal precedents don't affect the
status of your contract.
What should be included in a postnup?
- List all assets, liabilities, income, and expectations of gifts and inheritances.
- Describe how post-marital debts will be paid.
- Resolve what happens to your post-marital property in reference to appreciation, gains, income,
rentals, dividends and proceeds of such property- in the event of death or divorce.
- Resolve what happens to your post-marital property in the event of death or divorce.
- Decide who, or if both of you, will own the marital residence and secondary homes in the event
of death or divorce.
- Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from,
whether before or after marriage.
- Clarify what will happen to each type of property, whether jointly or individually owned, such as
real estate, artwork and jewelry.
- Figure out alimony, maintenance, or spousal support, or provide for a waiver or property
settlement instead of support (to the extent allowable by law).
- Detail death benefits, stating what you will provide for in your will.
- Decide on medical, disability, life or long-term-care insurance coverage.
Orlando Divorce Attorneys
Bauer Family Law
5401 South Kirkman Road
Orlando, FL 32819
Phone: (407) 926-0255
Facsimile: (407) 926-0254