You’ve Heard of a Prenup, But What is a Postnup?
Many people are familiar with prenuptial agreements, as an agreement entered prior to marriage, designed to protect spouses in the event of a divorce. But what exactly is a postnuptial agreement? The short definition of a postnuptial agreement is a written agreement entered into by spouses after a marriage, defining the division of assets, debts and spousal support in the event of death or dissolution. Essentially it functions just like a prenuptial agreement, but is entered into after marriage. A postnuptial agreement can be entered into anywhere from the day after the marriage to many years down the road.
One essential difference between a prenuptial agreement and a postnuptial agreement is that postnuptial agreements are more heavily scrutinized by the courts for fairness, due to the confidential relationship between spouses. In order to enter a valid postnuptial agreement several requirements must be met:
Written Agreement: The agreement must be written and signed by both spouses.
Voluntarily Signed: The agreement must be entered into freely, without fraud, duress, or coercion.
Full and Fair Financial Disclosure: Both spouses must provide a complete disclosure of all assets, liabilities and income to each other.
Fairness: The agreement must not be “unconscionable”. Florida courts can invalidate an agreement if it is deemed unreasonable or unfair to one spouse.
A postnuptial agreement can extremely beneficial in creating stability and comfort in a marriage, particularly if there have been changed financial circumstances. It can set expectations and help spouses feel more at ease by having honest conversations and working through issues that may cause uncertainty and tension. In some instances a post-nuptial agreement may adequately address marital concerns spouses are facing in order to avoid a divorce.
What can and can’t be included in a postnuptial agreement?
A postnup can help spouses protect premarital assets, to prevent them from becoming marital property. It can address existing debt and establish how alimony will be handled in the event of a divorce. Postnuptial agreements can be particularly helpful if one spouse owns a business and has concerns over keeping the business separate property in the event of a divorce. Both prenuptial and postnuptial agreements can address how future assets will be treated, including assets that increase in value during a marriage.
Florida law does not permit non-financial matters to be included in a postnup. These prohibitions include child support, time sharing, and parental responsibility, which will always be determined based on the best interests of the child.
What information will be needed to get started?
The basic information needed in order to begin the process of formulating a prenuptial or post nuptial agreement is as follows:
A list of all assets (including any real estate, savings, checking and retirement accounts)
A list of all debts (mortgages, loans, credit cards, and business debts)
Most recent account statements
Information regarding income and expenses.
The most important consideration, especially with a postnuptial agreement, is each spouse making a full and fair disclosure to the other. You should consult with an attorney to discuss whether a postnuptial agreement will be beneficial in your unique situation and how the process will work from consultation to signing. Contact Cody Law if you’s like to discuss your options and explore the benefits of a postnuptial or prenuptial agreement.
Put it on Their Tab: Awards of Attorneys’ Fees and Costs in a Florida Family Law Case
One big question clients ask, when faced with a family law issue; when can the court award fees and costs in a Florida family law case?
There are several situations where a court may award fees and costs to a party, the first is needs-based and the decision is based on a party’s demonstrated need for their fees and costs to be borne by the other party and the other party’s ability to pay those fees and costs. The reasoning here is that both parties should have equal access to legal representation and a party should not be at a disadvantage due to limited financial resources. Needs-based attorney’s fees may be awarded in cases where one spouse is the primary breadwinner. This type of award can also be granted on a temporary basis. With needs-based attorneys’ fees the courts will consider both party’s income, assets, debts and individual financial obligations.
The second situation where a court can award attorneys’ fees and costs to a party is in contempt and enforcement actions. This is where one party needs to litigate because the other party has failed to comply with a court order, such as non-payment of child support, non-payment of alimony, or not following the court-ordered time-sharing schedule).
The third situation is where there is frivolous or bad-faith litigation. The court may award attorneys’ fees and costs to the other party as a sanction for bringing an action or filing a motion in bad faith (this is governed by Florida Statute 57.105). The court will consider whether a party has unnecessarily prolonged the litigation or been unreasonably uncooperative.
Florida statutes which apply to the award of attorneys’ fees in a family law matter:
Florida Statute 61.16 allows for an award of attorneys’ fees in dissolution of marriage cases, custody cases, alimony cases, and child support cases.
Florida Statute 742.045 allows for an award of attorneys’ fees in paternity actions.
Florida Statute 57.105 provides the basis for recovery of attorneys’ fees when a case is found to be frivolous or lacking legal merit.
Florida Statute 68.093 (Vexatious Litigant Law)
With any award of attorneys’ fees the court must determine is the requested attorneys’ fees are reasonable for the work performed. The court may deny or reduce fees that are deemed excessive.
In order to request an award of attorneys’ fees and costs, a party must file a motion outlining why the award is necessary and submit supporting financial documents. The party requesting fees must also submit an itemized list of all legal fees and costs incurred, detailing the attorney’s hourly rate. The court will determine whether the fees and costs should be awarded at an evidentiary hearing.
Florida Statute 57.105 Motions
Under Florida Statute 57.105, a party must file a motion alleging that the opposing party or their attorney pursued a claim or defense without any factual or legal basis. Under Florida Statute 57.105 there is a specific notice period required, called a Safety Harbor Notice, which must be served upon the other party, detailing why their claim lacks legal or factual support, to allow correction prior to filing the motion. The opposing party shall be given 21 days from the date of being served with the Safety Harbor Notice to withdraw or amend the baseless claim. If the claim is not withdrawn by the 21-day mark then a motion for sanctions can then be filed with the court. The party seeking relief under 57.105 must prove to the court that the opposing side’s position was frivolous (either not supported by the law or the facts). The Motion must be heard by the judge to determine whether sanctions are warranted against the party, the attorney, or both. If granted, the court can award the winning party’s attorney’s fees and costs as well as imposing sanctions. The court will not award fees and costs under Florida Statute 57.105 if it finds an argument was made in good faith to extend or modify existing law, or if an attornet acted in good faith based on client information.
Florida Statute 68.093 (Vexatious Litigant Law)
Florida Statute 68.093 can also apply in Florida family law matters. This Statute, known as the vexatious litigant law is governed by the Florida Family Law Rules of Procedure. The goal of this section is to prevent individuals from persistently abusing the court system by filing frivolous lawsuits. A “vexatious litigant” is defined as someone who has filed five or more civil actions in Florida within the past five years that were decided against them, or that has been previously found to be a vexatious litigant. Under this statute the court can impose certain restrictions, including issuing pre-filing orders, require a security bond for new cases or even prohibit the filing of new actions without court permission.
Under all of these various statutes, the other party in your family law matter could be responsible for your legal fees. You should discuss your unique situation with a Florida family law attorney, to find out the best course of action and whether your legal fees and costs could be ordered to be paid by the other party. Contact Cody Law in St. Augustine Florida if you’d like help navigating a Florida family law issue.