This is my next post on the topic of obtaining a legal separation in our state. My last article discussed why Florida parents may prefer a divorce over a legal separation. This means that the only way for spouses to obtain the legal protections, which accompany divorce, is to actually end the marriage. This can put many spouses in a quandary as, while they may wish to dissolve the marriage, there are practical reasons (such as insurance benefits or religious beliefs) which prevent them from being able to do so. In this article I will be discussing one potential option which can protect one’s financial interests – the use of a postnuptial agreement. It is important to understand that no two situations are the same and that you should consult with an attorney to fully understand your options. If you or a loved one are in need of assistance then contact my office today to speak with a Melbourne lawyer.
Separating Florida spouses can use a postnuptial agreement to protect their interests
A postnuptial agreement is similar to a “prenup” except for the fact that it is signed after the parties are married and not before. It is a contract between the parties which can state how any marital property or debt will be divided upon a Florida divorce, whether or not there will be spousal support, and it also deals with assets and debts (including wages) acquired during the marriage. Such an agreement, for example, can declare that the earnings of both parties shall be “non-marital” and thus will be considered their sole and separate property. In the event that the parties file for divorce, there will be no disputes over items covered in the postnuptial agreement as long as the parties do not intermix their assets and debts. Such an agreement can help protect parties in the event that they go their separate ways without filing for divorce.
Suppose Joe and Jane wish to separate but do not wish to divorce. If they do not have a postnuptial agreement then assets, debts, or wages acquired, after the separation, will be considered “marital,” even though they are not living together. The Court, therefore, could possibly make both parties responsible for a debt or say that an asset should be evenly split between the parties. If, however, they do have such an agreement then, when one spouse files for divorce, the Court can then hold that all assets and debts acquired after the separation are “separate.” In other words, one would not have to worry about being held responsible for their estranged spouse’s irresponsible spending or, likewise, would not have to worry about their spouse making a claim against any new assets.
A postnuptial agreement does not address child custody & cannot protect Florida spouses until a divorce is filed
There are two key differences between the formal legal separation which exists in other states and a postnuptial agreement. First, while a legal separation is a court order which can contain provisions regarding child custody or support, a postnuptial agreement cannot deal with such matters. This means that the only way for Florida Courts to grant a custody or child support order is for the parents to file for divorce. Second, while a separation puts an order in place that spouses can then rely on, a party cannot invoke the protection of a postnuptial agreement until a divorce action is filed. These differences mean that, while a postnuptial agreement does provide separating spouses with legal protections, one will not receive the level of protection provided in other states. In order to ensure that your rights are protected, it is strongly suggested that you speak with an attorney as soon as possible.
If you are considering separating from your spouse then contact our office today to speak with a Melbourne lawyer. My practice is devoted to the handling of family law matters and my office strives to provide a high level of service. We also serve the cities of Titusville, Cocoa, Palm Bay, Grant, Valkaria, and Rockledge, as well as in the Indian River County areas of Fellsmere, Sebastian, Vero Beach, Indian River Shores, and Orchid.