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How to file a marital settlement agreement in lieu of a post-nuptial agreement in case we divorce in the future?

Cape Coral, FL |

We've been married for 16 years, reside in FL, and have 2 kids (15 and 11). My husband had an affair and we are currently trying to work through it. However, part of the deal for me to give him another chance is for him to sign an agreement giving me permanent alimony and providing me with full custody as well as child support for the kids. He has agreed. I had a consultation with an attorney and she suggested filing a marital settlement agreement instead of a post-nuptial. This way, if he has another affair in the future, the agreement is already filed with the court. How do I file this agreement without having to dissolve the marriage? What form should I file based on the FL family law form site (http://www.flcourts.org/gen_public/family/forms_rules/index.shtml#petsup)?

Attorney Answers 2

Posted

The advice you got from the lawyer was poor. The problem with a marital settlement agreement in your situation is that marital settlement agreements become void in Florida once the divorce is dismissed and the couple goes back to living as husband and wife. Your situation requires a post-nuptial agreement. However, predetermined agreements regarding timeshare ("custody") cannot be placed in a post-nuptial agreement and child support must always be calculated according to the Florida Child Support Guidelines system in effect at the time of the divorce, meaning you can't legally put child support in a post-nup, either. You should use a post-nup, but realize that your provisions regarding timeshare and child support will likely be held invalid. Your alimony provision will likely be upheld, though.

The contents of this answer should be considered friendly advice, not legal advice (I'm a pretty friendly guy), and the answer should not be construed to constitute an attorney-client relationship. If you'd like actual legal advice, call me for a free consultation at 813-635-0222. Also, if you liked this answer as much as my big ego thinks you did, be sure to click the thumbs-up button!

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Posted

I agree fully with Mr. Rose. You cannot just go and file an agreement without a case. And most of any agreement that you come up with or already have is void. This is much more complicated than you realize and there simply is not a "form" for every legal problem. The advice you got was very poor, indeed.

R. Jason de Groot, Esq., 386-337-8239

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