Staying in a Marriage of Convenience using a Postnup
Under Florida law, there is no such thing as a legal separation, in which couples choose to live apart from each other to see where they truly stand in regard to remaining married. Florida is an outlier compared to most other U.S. states that recognize legal separation. Only five other states do not recognize legal separation: Delaware, Georgia, Mississippi, Pennsylvania, and Texas.
Florida‘s social policy on legal separation is designed to curb the appeal of “green card marriages” for immigration purposes.
Under Florida’s law, you are either married, or you have filed on a particular date for divorce. On this date of filing for divorce, your debts and assets are calculated, regardless of whether you moved out or when you moved out. For example, if one spouse moves from the marital home to a different location, the couple are not legally separated, and in the eyes of the law, they are considered married. Even if a decade went by with both of them living separately, they would still be responsible for the divide of debts and assets as they exist on the date of filing for divorce.
Since legal separation is not an option, couples may be forced to divorce in order to deal with the risks of living apart while being considered married under the law. Yet plenty of couples will choose to remain married for reasons other than the health of their marital relationship. They may choose to stay together…
- For the sake of their young children who benefit from the continued stability of two parents living together.
- For the sake of older children. Surprisingly, some couples want to remain married because they are concerned about the reactions of their adult children.
- Because they believe it’s the best way to handle their level and/or distribution of debt. For example, two incomes may be needed for a mortgage and/or car payments.
- Because one chronically ill spouse is dependent on the health insurance benefits associated with the other spouse’s job.
- Because they are both religious, and their religion forbids divorce. The devout are left with few options when they find themselves in marriages that are no longer viable.
- Because one or both spouses don’t want to give up any corporate control where a business is involved.
When a couple knows that – whatever their reasons – marriage is the best strategy for them, they can use a postnuptial agreement to create a filing date on which their debts and assets will be sorted. The postnuptial agreement saves a couple from divorce when the divorce is not the optimal outcome for their lives and children. A postnup acts as a substitute for a legal separation and allows you to move forward with a life outside of your marriage without the need for a divorce. Through the postnuptial agreement, this filing date is created, and if the couple chooses divorce, then the divorce ratifies the postnuptial agreement’s filing date.
Postnuptial agreements are legal contracts that are created during the marriage (i.e., after the wedding vows) and that are executed upon signing. You may be more familiar with prenuptial (“prenup”) agreements that are executed before the marriage. The difference is in the timing of when the contract is executed, but the function of the contract is the same for both prenups and postnups.
Divorce can occur at a more logistically appropriate time when the couple can say that their marriage is “irretrievably broken,” which is the standard for divorce under Florida law. It manages risk for each spouse and for any third parties whom they may have designated to inherit from them.
If you are interested in learning more, consult with an experienced postnuptial attorney at JustPrenups in Florida today.
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