One of the most common misconceptions that people have about divorces that involve post-nuptial agreements is that they can always resolve their divorce issues without the help of lawyers. Depending on the length of the marriage, the type of pre- or post-marital agreement that the parties have entered into, and their current situation in life, they may very well need lawyers to resolve things. For example, some pre-nuptial or post-nuptial agreements discuss child-related issues. In Florida, child-related issues cannot be resolved by pre- or post-nuptial agreements. Parties generally enter into pre-nuptial agreements before they have children, and children’s issues are decided based upon the best interest of the children at the time.
For example, prior to the marriage of the parties, the parties might agree to a certain custody arrangements that they would have in the event of a divorce. The courts don’t have to agree with their prior arrangements at the time of the divorce, because something that the parties may have agreed to before they even had children may not really be in the best interest of the children at the time of the divorce years later. So right off the bat, any child related issues are not affectively handled by what may or may not be written in the pre- or post-nuptial agreements. Because of this, parties are well-advised to seek counsel of an attorney so they can get advice as to what really is in the best interest of the children at the time of the divorce, and how is that best accomplished.
Other misconceptions are if you have a post- or a pre-nuptial agreement, then everything is settled and things can’t be changed. That’s not necessarily true. There are many reasons that the court may not uphold or enforce the terms of a pre-nuptial agreement. This can include the type of information the parties received at the time they executed the agreement, the situation the parties now have, or what’s fair or what’s not fair. Generally, the court will not overturn a pre-nuptial agreement based on the fairness. However, if the parties were not treated fairly at the time the pre-nuptial agreement was written, the court can look at the agreement at the time of its execution and choose not to enforce those terms.
If there is a divorce that’s pending or is about to happen, parties are still best off at least discussing the issues with an attorney at that time, to see what the likelihood is that the terms of the agreement will or will not be upheld by the court. If one party particularly believes that the agreement is unfair to him or her, it’s always best for them to speak to an attorney to find out if there’s a possibility that they can get the document overturned or not enforced by the court.
What Are Some Things To Keep In Mind When Proceeding In A Divorce Involving Pre & Post Nuptials?
The first thing that the person needs to think about before filing for divorce, is does he or she want the terms of that agreement enforced or does he or she not want the terms of that agreement enforced? If you want the terms of the agreement enforced, the simple rule is to take the agreement to an attorney. Explain to the lawyer that you need a divorce, you already have an agreement, and ask the lawyer’s opinion as to whether or not that agreement is likely to be enforced by the court. Likewise, if you are the party that does not like the terms of the agreement, again seek legal advice to ascertain whether there is a possibility of getting the terms of that agreement overturned or not enforced by the court.
As previously mentioned, child-related issues are likely not to be enforced, no matter what the document says about that. Also, there is a possibility that if you are looking to get the agreement set aside or not enforced by the court, then we need to look at the background of how the terms of agreement were reached. The court can certainly choose not to enforce an agreement, or set it aside, if the agreement was reached by fraud, duress, overreaching, a failure to provide the state of the finances of the parties at the time of the agreement, or if either party did not have adequate legal counsel. It’s always best to chat with an attorney prior to filing, whether you want the agreement enforced or whether you want to get the agreement set aside.
For more information on Misconceptions About Pre & Post Nuptials, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (954) 755-0126 today.