Family law in the state of Florida is constantly evolving and changing. If you get a lawyer who practices more general types of law, he or she may not be up-to-date on the current state of family law. Current case law, as set forth by the courts in the state of Florida, as well as laws that may or may not be passed by our legislature, affects the law regarding pre- and post-nuptial agreements. Currently in Florida, we have a lot of legislative change, and our Supreme Court has very recently made certain decisions that will affect the rights of parties to a pre-nuptial agreement.
A very recent case has found, even though that there was a pre-nuptial agreement in place that stated that the husband was entitled to keep all real estate titles in his name, including those acquired during the course of the marriage, the courts decided that the wife was entitled to a marital share of the real estate that was purchased in the husband’s name. This decision was made, even though there was a prenuptial agreement in place that should have prevented that from happening. It’s always important to seek advice from a lawyer. Not just any lawyer, but one who is proficient, and who has the proper background, training, and knowledge to advise the client on the current state of the law at that time.
In Florida, we have a certification process, which means that some lawyers are certified as specialists in marital and family law. This certification should be a good indicator that the lawyer is up to date, handles family matters, and is proficient in the current state of the law.
Can Someone Navigate A Divorce Case Involving Pre & Post Nuptials Without An Attorney?
In Florida, if someone enters into a pre-nuptial or post-nuptial agreement, and wants that agreement to be upheld or enforced by the court, then that person should be aware that there are two basic requirements for this. The first requirement in order to have a valid prenuptial agreement is each party being represented by a competent lawyer. The second requirement is that each party provided an honest and full description of his or her financial situation to the other party. Since one of the two requirements is that competent legal counsel represents each party at the time of the execution of the agreement, that alone should be enough reason for a person to seek competent legal counsel before entering into a prenuptial agreement.
That’s not to say that you can’t do a prenuptial agreement without lawyers. You certainly have the right to do that. Theoretically, if you enter a prenuptial agreement with your spouse, even without lawyers, and at a later time choose to get divorced, if nobody contests the terms of the pre-nuptial agreement, then you can just decide to agree to divorce pursuant to the terms of the agreement that was drafted without a lawyer. However, if one party is unhappy with the terms of the prenuptial agreement at the time of the divorce, which is frequently the case, then the court may very well not enforce the terms of the agreement unless a separate competent counsel represented each party.
How Can Someone Prepare For A Divorce Involving Pre & Post Marital Agreements?
If a prenuptial or postnuptial agreement exists, and the parties believe that they need a divorce, then prior to filing each party should review that agreement to see if he or she agrees that it’s fair. If both parties agree that it is fair, then each party should hire a lawyer to make sure that the terms of the agreement are enforced. This is usually a relatively simple procedure, but it’s still best to do that with lawyers, to make sure that each party gets what he or she negotiated in the terms of the agreement.
If one party or the other party believes that they are no longer in agreement with the terms of the prenuptial, then prior to filing, that person in particular needs to get advice of a competent and qualified lawyer, to ascertain whether there is a possibility of having the whole or a portion of that agreement set aside. A third possibility is, that even though an agreement exists, that the parties could still negotiate certain changes to that agreement prior to filing for the divorce. All of these different avenues of getting to a divorce are best with the advice of a lawyer, who can guide you through what certainly is an emotional time, where the party going through a divorce may miss something that was awarded to him or her.
These issues can be brought up by or discussed with a lawyer. Prior to filing, get legal advice. It’s also best to get a handle on the current financial situation of the parties, and reviewing banking and salary records of the parties can do that. To the best of your ability, see what currently exists, compare that to what existed at the time you executed the agreement, and of course bring all your questions to qualified lawyer who can help you through this process.
For more information on Hiring An Experienced Divorce Attorney, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (954) 755-0126 today.