Defining What a Postnuptial Agreement Is
While postnups can frequently be thought of as what they are – a type of property protection like a prenup – they are different from prenups in that they are entered into after marriage. As a result, each spouse has a vested interest in the other, which is why courts consider whether an agreement is fair (and whether, for instance, it was entered into when one spouse was failing to disclose relevant information) rather than looking into the factors considered with prenups, such as the competency of the parties at the time of the agreement.
A postnuptial agreement must be reviewed by both spouses, and both spouses must have the capacity to enter into the agreement. Like a prenup , a postnup must also be entered into voluntarily, and with full disclosure of relevant facts. The agreement becomes effective once signed by both parties, and will not void automatically upon divorce or separation.
Postnuptial agreements are a tool that can help a person protect certain property during a marriage. They provide certainty while still allowing a person to retain some control over what will happen to their assets in the event of divorce. At the same time, unlike a consummate agreement, a postnup can be cancelled if the parties reconcile.
Each spouse should have an attorney present when entering a postnup, and understand that the agreement can affect alimony, child support, and property division in a divorce.
The Components That Determine a Postnuptial Agreement’s Cost
Others factors may include:
Geographic location. An attorney in a rural area may charge substantially less than one in a metropolitan area.
Hourly rates. An attorney’s hourly rate may vary widely within a firm or from one firm to another. Postnuptial agreements requiring more time will obviously cost more.
Retainers. Payment is always required, and often a fairly large retainer for a postnuptial agreement. Some attorneys may ask for payment on a monthly basis. Even if the full amount is not needed, attorneys are permitted to retain the excess paid by their client.
The Cost of Hiring an Attorney to Write a Postnuptial Agreement
Attorneys generally charge for their services in one of two ways. Most family lawyers charge on an hourly basis. When it comes to drafting postnuptial agreements, they could charge anywhere between $200 and $1,000 per hour. In Florida, $400 per hour is very common. As such, if an attorney bills you for 5 hours to prepare and finalize a relatively straightforward postnuptial agreement, you could easily be out a cool $2,000.
Another common fee arrangement is a flat fee, where the lawyer charges a fixed amount for his or her services. A flat fee is more typical when a divorce is involved. Many lawyers charge a flat fee to represent you in a divorce that does not involve any complex issues. But a postnuptial agreement is not a divorce. It is not unusual for a postnuptial agreement to be complicated. As such, many lawyers are reluctant to charge a flat fee.
You may be wondering if a more experienced lawyer would charge more than a less experienced lawyer. Not necessarily. In fact, in our experience, we have seen a major difference in a less experienced ministry that had significantly lower hourly rates and charged a flat fee to draft marital agreements.
You may also be wondering if a big law firm with several highly experienced lawyers on staff would charge more than a single attorney law firm. In our experience, the opposite is true. A premier family law firm in Orlando charged $280 to $320 an hour for a junior associate. Brownstone Robinson, like many other top-tier law firms in Orlando, charges $250.00 an hour for a senior family law attorney.
But don’t assume that the least expensive option will be the best option. Some regular readers of my blog ask me to represent them in their family law cases at minimal expense. I decline many of these requests. Why? Because I could not provide my clients with high-quality representation at a low fee. I believe the same principle applies when it comes to drafting a postnuptial agreement.
If you can afford it, seek out the best lawyer for your case. Even if he or she carries a higher price tag, it may be worth it. The resulting product will be far superior. Plus, an iron-clad postnuptial agreement is a lot less expensive than a divorce.
The Additional Fees that May Apply to a Postnuptial Agreement
Court filings: If your postnuptial agreement will be filed with the Court, you may be required to either (a) file it within a certain time-frame after signing (often 30 days), or (b) file it before a particular event, such as a child moving out of the home. Check with your attorney for specific requirements and understand that the filing cost varies per state .
Notarization: Depending on the specific requirements of your state, notarization may be a necessity. Also keep in mind that many online third-party services will not notarize your agreement, whereas licensed attorneys and notary publics offer notarization at no added cost.
Revision: As with any legal contract, changes may need to be made as life circumstances change. Additional fees are likely to apply for alterations to the agreement.
How to Save When it Comes to the Cost of a Postnuptial Agreement
When considering the cost of a postnuptial agreement, many individuals search for ways to reduce the expenses associated with negotiation and execution of the contract. While this is a useful tactic, it is important to realize that those who try to save on the cost of a postnuptial agreement can end up paying the price later. In short, whatever is lacking in your postnuptial agreement will catch up to your family once legal actions are actually taken regarding separation or divorce in the future. That said, there are several ways to save money on a postnuptial agreement: 1. Use samples for drafts – The cost of creating a postnuptial agreement can be significantly reduced simply by utilizing high-quality and free template agreements. These will provide a quality starting point for drafting a fair and effective postnuptial agreement. 2. Hire an experienced attorney – If you interview different attorneys, make sure to use the lowest quote as a negotiating tool. This means that you should have some degree of flexibility when selecting a law firm, just in case a higher quote comes in from a firm that has more experience, a longer track record, or a larger staff to complete your postnuptial contract accurately and efficiently. If you still come across a large gap between two attorneys, make sure to present your lowest quote as a way to negotiate a reduced rate. 3. Utilize online legal services – Many providers offer fairly inexpensive postnuptial agreements for less than $100. However, it is important to note that these contracts may have issues, since they are not typically created by an attorney. It is generally not recommended to use these contracts unless you have prior experience with this type of legal negotiation and you know how to fill out a contract without oversight by an attorney. 4. Negotiate complicated provisions separately – If you have a complex contract, first discuss negotiating the complicated provisions of your postnuptial agreement separately from the overall contract. This will help you to save money both by splitting up the conversations and reducing the time spent on specific provisions of your agreement.
The Reasons for Spending a Little More on a Postnuptial Agreement
A recent advertisement posted on a flyer in the hallways of our boutique building had me reeling. The ad in simple, white, Times New Roman font read "postnuptial agreements starting at $295." Now, as a family law attorney, you might expect me to think, "wow! what a deal, I should invest in one of these little gems for myself!" But the truth is, when it comes to postnuptial agreements (and premarital agreements) you get what you pay for, and the deals are rarely what they seem.
When entering into a postnuptial agreement, both parties should have independent counsel reviewing and revising the agreement before it is signed. This is important so that each party understands the effect of the terms of the agreement. If one party cannot afford independent counsel, it is worth spending the extra cash for a single hour of legal advice to ensure that all of your concerns are addressed in the contract. While 3 or 4 hours of legal time to negotiate a 20 page contract may seem like overkill, it is an important process that we take very seriously.
One of the most important reasons to hire an attorney to draft a postnuptial agreement is that the drafting lawyer will ensure that all requisite clauses are included for your particular needs and jurisdiction. If the drafting attorney’s only job is to insert the names and signatures onto a form paragraph from the internet, you can be sure that something crucial will be missing. Furthermore, if the postnuptial agreement is not properly crafted, courts will often refuse to enforce the agreement. That means all your money spent on a low-cost postnuptial agreement was wasted when your agreement was not enforced by the court . Although California courts are essentially a community property state, the division scheme of assets often changes once other states become involved. For this reason, postnuptial agreements should be carefully tailored to each party’s situation, which is why hiring a quality attorney to navigate these treacherous waters is so crucial.
I have seen a number of cases in which clients have had their passthrough accounts drained by their former attorneys because no limit was put on the amount of time or money that could be spent, or the fees were set at an hourly rate and not a flat fee. We charge flat fees and work with each client to determine how long the process is likely to take, after which we provide a six month retainer for work on the file. For my postnuptial agreement work, I typically charge $6000 to $8000 to complete the agreement. For this I provide 2 to 4 hours of attorney time, which may include meetings with clients, meetings with opposing attorneys, and responding to other parties (if necessary). We keep time records of all work performed on the file as required by the California State Bar. Timothy is currently working on a client file and has already put in 35 hours of work in relation to the case, including the completion of the postnuptial agreement, drafting stipulations/minor agreements, and review of opposing counsel’s work. The postnuptial agreement alone therefore costs $2400, which my client believes is well worth the completed work product drafted in an edited version of the agreement. More importantly, all of the terms are now tailored to the clients’ needs.