• Brian Gilroy

Prenuptial Agreement Florida

Updated: Dec 30, 2020

Getting married is a life-changing event, and one that both people hope is going to last forever. However, divorce does happen more frequently than everyone likes, which makes it necessary to have a prenuptial agreement in Florida. Almost 50 percent of all first-time marriages end with divorce. Plus, divorce rates are often higher for any subsequent marriages.


Regardless of the situation, having a Florida prenuptial agreement is beneficial to both prospective spouses. A premarital agreement may be called a prenup, and it's a contract that the couple signs before they get married. The contract may determine how assets and debts are distributed, which spouse is entitled to alimony, and various other issues if a divorce is imminent.


Prenuptial agreements may help the couple modify various provisions of the Florida divorce law to fit their particular circumstances. Well-executed Florida prenuptial agreements allow each spouse to set their terms for the divorce instead of having a judge determine how the assets are distributed and what spousal support (if any) is awarded.


This is different than a postnuptial agreement, which gets executed anytime after the wedding. This agreement in Florida can accomplish the same goal as the prenuptial agreement. Both of the documents may help the parties set the terms for the divorce so that a judge doesn't determine alimony and asset division.



Equitable Distribution in Divorce


Florida uses the equitable distribution for divorce proceedings if there's no prenuptial agreement. This just means that the marital property has to be fairly distributed. The judge typically divides all marital property in half, but there may be unique circumstances. Marital property includes any debt or asset acquired at any time during the marriage. Equitable distribution is standard and applies unless there is another agreement, which is enforceable by the court. Even if there's a legal Florida prenuptial agreement, it could be deemed unenforceable, which means it goes back to equitable distribution.


Advantages of Prenuptial Agreements in Florida


There are various advantages each spouse can enjoy from a prenuptial agreement in Florida. For example, the contract allows the parties to focus on the terms of their divorce, whether it be collaborative, pro se, or traditional to avoid costly litigation. While it's common to believe that only wealthy couples need one, prenuptial agreements are recommended for every couple. With an effective agreement, each person saves money and stress in the event of a divorce. Regardless of how many or how few assets they have, a prenuptial agreement is extremely helpful.


Prenuptial Agreement in Florida


A prenuptial agreement in Florida may cover various issues. These can include the division of debts, alimony, and assets when the marriage is over. The rights and obligations of each spouse are upheld. Additionally, this agreement can include complex requirements that aren't part of the typical contract. Therefore, it's best to consult with an experienced lawyer when writing and signing. This means that prospective spouses agree to the prenup agreement. Most divorce law firms offer free consultations for things like this.


Though the prenuptial agreement covers many things, it cannot determine child custody rights. In Florida Law, child custody focuses on the interest of the child and not the parents. Therefore, custody isn't a decision each spouse and parent can make before the active custody case. There are a few other instances where issues aren't eligible to be put in the prenuptial agreement. It's best to talk to a Florida law firm attorney to get legal advice about this.


Uniform Premarital Agreement Act


Florida statutes adopted this act to ensure that parties may be able to reach a binding contract on various issues. These can include:

  • Rights and obligations concerning liabilities and financial assets

  • Right to buy, use, sell, dispose of, or transfer property

  • Distribution of property in the event of a divorce

  • Right to alimony

  • Making of a trust or will

  • Disposition of life insurance

Parties may be able to add additional things here, as well. It's best to talk to a St. Petersburg divorce lawyer to get advice about a specific case.



Non-Modifiable Florida Prenup


In most cases, a Florida prenup isn't modifiable. Since the prenuptial agreement can't be modified, it's best to carefully plan it. A good prenup accounts for the financial assets when both parties got married, but it also considers the potential of asset accumulation and future income of one spouse or both.


This could become an issue if one party has a high-income job when the original prenuptial agreement was signed and didn't require alimony. Then, at some point during the marriage, that party became disabled and couldn't work. Their financial situation drastically changes, but they can't get alimony because that right was waived. It's possible to waive in writing anything in the traditional prenup, but the agreement must be held to by both parties.


Enforcing a Florida Prenup


Premarital agreements can be enforceable, even if the terms of the agreement seem unfair. For example, one case upheld the prenup to transfer real estate before there was the market decline. One spouse retained sole ownership of the house and only had to pay the other spouse a large sum of money. Then, the owner of the home was able to get his ex-spouse to pay for property-related expenses. This prenuptial agreement was ultimately drafted before the collapse of the real estate market and didn't anticipate such a drastic drop in the value of the home.


The Florida prenup is a legally enforceable contract. However, sometimes, this agreement can be voided. The court can disregard certain provisions within the agreement while enforcing other parts of the prenuptial agreement. Therefore, it's always best to consult with an attorney. Everyone is bound by the attorney-client relationship once the lawyer has been retained.


Adultery


Misconduct concerning the marriage by one party or both doesn't necessarily invalidate the prenuptial agreement. For example, adultery isn't usually sufficient to void the agreement. Traditionally, the conduct has to be so gross that it's beyond contemplation of the party to still be bound to the terms of the agreement.


Challenging the Florida Prenup


Each spouse has to sign the agreement voluntarily for it to be upheld in a court of law. If it is found to be valid, it's legally enforceable. However, either spouse can challenge or void it based on the law. Prenuptial agreements may be voided entirely, or specific provisions might be voided. Grounds to void the agreement can include fraud, duress, failure of financial disclosure, coercion, or that the agreement was unconscionable.


Each spouse needs to hire a divorce attorney when entering into the prenup. Failure to hire a lawyer isn't sufficient grounds to void the agreement later. It's important to understand the disadvantages and advantages of the agreement before signing. Once the prenuptial is executed, it's non-modifiable and binding, so proceed with care for the future.


Evidence to Void the Prenup


The courts don't have the authority to void a prenup in Florida just because it's seen as unfair to one spouse or another. The agreement can't be voided just because it is a bad deal for a spouse. However, an agreement that's unfair on the face creates a presumption that full disclosure wasn't met.


Typically, the party that seeks to enforce the prenup has the burden of providing that they did provide all the information. If that presumption isn't rebuffed by evidence, the agreement could be limited or voided entirely. This is to protect each spouse.


Each person has the right to protect themselves. That has to be allowed in the prenup. However, most courts believe that each party must hire a lawyer to work out potential issues so that the agreement can protect both people regarding life insurance and more.


Child Support and the Prenup


Every aspect of the dissolution of marriage can't be resolved with a prenup. For example, the courts may void provisions of the agreement that tries to change child support and custody. Unless the parties already had children before the marriage, child support cannot be added to the prenup. The courts focus on enforcing the provisions that are beneficial to the child.


Additionally, it's impossible to create a prenup that attempts to prevent or limit child support should a dissolution of marriage become necessary or preferred.


Consider a Prenup


It is the right of each party to protect themselves. To provide financial support after a divorce is a common thing. Child support may also come into play. However, child support doesn't usually go on the prenup because it's unknown at the time of marriage whether or not the couple is going to have a family.


Everyone must understand what is in the prenup and how to protect themselves in the event of a divorce. Fair and reasonable disclosure is always a requirement for a Florida prenup. Family law firms can help prospective spouses with their prenup.


Those who require assistance with family law issues should call us. The financial aspects of the marriage are essential, and both people should want to protect them. It must be in everyone's best interest, including that of the child(ren).


Anyone with questions or current issues can call BKG Mediation for assistance. We can create a prenup that helps everyone.

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