Prenuptial / Postnuptial / Cohabitation Agreements

There are many types of agreements that can be drafted to assist couples in determining their rights and obligations to one another in the event the relationship ends in divorce. Most people would agree that it is advisable to have a Will to specify what happens in the event of one’s death; however, the overwhelming majority of people get married without a document that specifies what happens in the event of a divorce.

Of course, most people get married with the idea that they will live together with their spouse for the rest of their lives. And while that is a wonderfully romantic notion, it is also naive. More than 50% of first marriages end in divorce. More than 70% of second marriages end in divorce, and that rate is higher for second marriages with children. For third marriages the rate goes into the 90th percentile.

If this is your first marriage and you are entering the marriage with no assets or liabilities, then you don’t need a pre-nuptial agreement. Pre-nuptial agreements are designed to protect the spouse with money coming into the marriage from the claims of the spouse who has no money coming into the marriage. You may decide based on a high income that you want protection from alimony claims. Whatever your concerns, you should have a consultation with Ms. Brodzki to make sure that you are fully protected.

Some property does not require a Pre-Nuptial Agreement to be protected from the claims of your spouse in a divorce. One common example is inheritance. An inheritance received by one spouse from his or her family is not a marital asset. As long as the monies or property received through inheritance are not co-mingled with other marital monies, and as long as you don’t put your spouse’s name on the deed to the inherited real property, your inheritance will remain your separate, non-marital property. There are other details that may be important to the treatment of your inheritance as non-marital property, so you should consult with Ms. Brodzki so that you can get the best possible information for your particular set of circumstances.

Post-nuptial agreements are similar to Pre-nuptial Agreements, except that they are entered into by the parties after the marriage. There are certain formalities that must be observed to make a post-nuptial agreement valid and enforceable. If you are already married and have concerns about financial protection of your assets, you should consult with Ms. Brodzki.

Cohabitation agreements are similar to both pre-nuptial and post-nuptial agreements, except that the parties entering into the agreement are not married. As long as same-sex couples are denied marriage recognition or equality, cohabitation agreements help protect and define the partners' rights and obligations. These agreements provide a framework for how the couple might divide their assets and liabilities, and share parenting with their children, should the relationship end. The major difference with cohabitation agreements is that they are not part of a family law case. The agreement is binding on the parties, but if one party fails to comply, the Agreement must be enforced in the Circuit Civil Court by filing a civil lawsuit for breach of contract. Different rules govern civil litigation, and there is a separate group of Judges for Circuit Civil cases.

Our office assists clients with the preparation of sperm or egg donation agreements, as well as contracts for surrogacy. We are proud of our association with Lambda Legal, the National Council for Lesbian Rights (NCLR), Equality Florida and the Human Rights Campaign. We are a firm dedicated to serving the needs of all families.

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