Do You Need an Attorney to Create a Postnuptial Agreement?

A postnuptial agreement is a legal contract that spouses create after they’re already married. It typically outlines how assets, debts, and other financial matters will be handled if the marriage ends in divorce or death. While many people are familiar with prenuptial agreements, postnups are less common but can often be just as important.

One of the most common questions I hear from clients about postnups is whether or not they need a lawyer to create a postnuptial agreement. The short answer is no, it’s not technically required, but it’s highly recommended. Here’s why.

Can You Legally Create a Postnuptial Agreement Without an Attorney?

Yes, you can. In Florida and most other states, the law does not require that either spouse hire an attorney to create a postnuptial agreement. Couples are allowed to write their own agreement and sign it as long as it meets certain legal standards.

But there’s a big difference between creating a postnup and creating one that will actually hold up in court. Postnuptial agreements are closely scrutinized by judges, especially when one spouse gives up significant rights. If your agreement isn’t clearly written, fair, and properly executed, the court can decide it’s invalid.

In other words: legally, you don’t need an attorney. But practically, going without one can leave you unprotected when it matters most.

What Courts Look for to Enforce a Postnup

Just because you and your spouse sign a postnuptial agreement doesn’t mean a court will enforce it. In Florida, judges evaluate these agreements carefully to make sure they were created fairly and with full understanding from both parties. Here are the key elements courts typically require:

• Full financial disclosure: Both spouses must be honest and complete about their income, assets, debts, and other financial matters.
• Voluntary agreement: The postnup must be signed willingly by both parties, without pressure or threats.
• Fair and reasonable terms: An agreement that heavily favors one spouse might be thrown out, even if both parties signed it.
• No signs of coercion: Courts look for red flags like rushed timelines, hidden information, or lack of legal advice.
• Proper execution: The agreement must be in writing, signed by both parties, and typically notarized to be taken seriously in court.

Why Having an Attorney Is Strongly Recommended

While the law allows couples to write their own postnup, the risk of making a costly mistake is high. Family law attorneys understand how to draft enforceable, clear agreements that stand up in Florida courts.

Here’s what an attorney brings to the table:

• Clear language: Lawyers use precise wording to avoid confusion or loopholes that could later be challenged.
• Protection of rights: A lawyer ensures you’re not unknowingly giving up something important, like alimony or retirement benefits.
• Court-readiness: Attorneys structure agreements with legal standards in mind, making it more likely a judge will enforce it if needed.
• Tailored advice: Every couple’s situation is different. A lawyer can help you build terms specific to your finances, goals, and concerns.

Why Two Attorneys Are Often Better Than One

It might seem strange to involve two attorneys in an agreement between two people who are already married. But in the legal world, this isn’t about creating distance, it’s about protecting fairness. Each spouse has individual rights and interests under Florida law, and one lawyer can’t ethically represent both sides without creating a conflict.

For example, if one spouse is giving up the right to future alimony or a share of retirement benefits, they need to fully understand what they’re agreeing to. If both spouses rely on a single lawyer, it opens the door for one of them to later claim they didn’t get proper legal advice, or worse, that they were pressured or misled.

This doesn’t mean you both need to spend a fortune on legal fees. In many cases, one attorney drafts the agreement, and the other spouse simply hires a lawyer to review it and explain any concerns. That review alone can go a long way in helping a postnup stand up in court.

What Can Go Wrong Without Legal Help

Plenty. Cases with handwritten or templated postnup wording can be rejected entirely because it lacks the key elements Florida courts require. Even agreements that seemed clear at the time can fall apart under legal scrutiny if they weren’t properly constructed.

Some common issues include vague wording, missing financial disclosures, and provisions that a court considers unfair or unconscionable. And once a dispute arises it’s too late to fix those problems.

The truth is, trying to save money by skipping legal help often ends up being far more expensive in the long run.

Yes, I Would Recommend Engaging a Lawyer

I get it, that sound pretty biased. But if your goal is to protect yourself, and ensure the agreement actually works when it’s needed, having legal guidance is close to essential.

Give me a call today to schedule a confidential consultation and make sure your agreement truly protects your future.