What is a Prenuptial Agreement?

A prenuptial agreement, also known as a “pre-marital agreement” in Florida, refers to a contract between prospective spouses to decide how specific issues such as property division and alimony would be addressed during a divorce.

A premarital agreement ("prenup" for short)  imposes a legal obligation on both parties concerning certain financial aspects that are likely to arise in a divorce.

Requirements for a Legally Enforceable Florida Prenup Agreement

Florida prenuptial agreement statutes require that a prenup should be a written document and both parties must sign it. In addition, both parties should voluntarily agree to sign the prenup and make all the necessary financial disclosures as part of the agreement

A Prenup is More Appropriate for Certain Individuals

While a Florida prenup agreement is well-suited for most prospective spouses, it is more appropriate for individuals who:

  • Have pre-marital assets, which they wish to protect in the event of a divorce
  • Own a business before marriage, which they would prefer to keep separate in case the marriage fails
  • Have children from a previous marriage, and wish to simplify future inheritance issues
  • Wish to pre-determine the issues related to alimony during a divorce

What Issues that can be Covered in a Prenup

According to Florida law, a prenup must not include anything that violates the law or public policy.

Financial rights and obligations of each spouse during and after the marriage are typically covered in a prenup.

Prospective spouses often address the following issues in a pre-marital agreement in Florida:

  • The ability of each spouse to control or manage assets and debts during the marriage
  • How the property will be divided in a divorce
  • Whether alimony will be involved in a divorce, and if so, what will be the amount and duration
  • Division of each spouse's pensions, retirement accounts, and life insurance policies
  • Whether the spouses should prepare a will to execute the terms of the agreement
Child Custody and Child Support Issues are Excluded

A Florida prenup agreement will have no role in determining child custody and support in the event of a divorce.

The courts in Florida will determine child custody according to their assessment of what might be in the child's best interests.

They will also calculate the amount of child support according to the child's needs and the parents' ability to pay.

What Makes a Prenup Legally Enforceable?

Florida adopted the Uniform Prenuptial Agreement Act (UPAA) in 2007. This Act has laid out various rules to enable the courts in Florida to determine whether a prenup is legally enforceable.

What is a Postnuptial Agreement?

A postnuptial agreement is very similar to a prenuptial agreement except that in the case of the latter, the couple is already married. It is a legal document that details how the couple wishes to divide their assets in the event that they divorce in the future. A postnuptial agreement can include how a couple wants to divide their savings and investments, who keeps the home, alimony arrangements, division of debts, and even who keeps the family cat. It can cover most aspects needed to separate the couple's life into the lives of two single individuals. As such, it protects both spouses and can save on costly divorce and litigation expenses since it covers many of the most contentious facets of a divorce.

Requirements for a Valid Postnuptial Agreement

If you are considering developing a postnuptial agreement, it will need to meet certain requirements to be upheld in the Florida courts. These include:

  • Both spouses must freely and willingly enter into the agreement. If either party is coerced into signing the agreement, it is invalid.
  • The agreement must be properly executed. This means it must be in writing. Oral postnuptial agreements are not valid. Additionally, the agreement must be signed by two witnesses. Both spouses must make a complete and truthful financial disclosure. This includes all sources of income, assets, property, and debts. If the couple divorces and a spouse can prove that the other spouse withheld any significant  financial information, then the agreement will likely be set aside by the Court.
  • The agreement must be fair. If one spouse receives the bulk of the assets and leaves the other in a financially precarious situation, the courts may not uphold the agreement.
  • Each spouse must give the other consideration in the agreement. "Consideration" is a legal term that means that each spouse gives the other something in exchange for the agreement. In a prenuptial agreement, the marriage is the consideration. It will be important to follow the advice of an experienced family law attorney to determine the consideration for your postnuptial agreement.

Drafting a postnuptial agreement can be a difficult topic to broach with a spouse. However, it is better to address these issues while you are in love and before emotions are elevated.

Under Florida law, each party to both a prenuptial and a  postnuptial agreement should be represented by their own lawyer. To draft a solid and legally binding prenuptial or postnuptial agreement, call the law office of Attorney William J Leininger at 941-727-5555 or contact us online to schedule your Free Consultation. Mr. Leininger offers appointments on Monday through Saturday, including some evenings. What have you got to lose?

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