Prenuptial Agreements in Florida
Marriage goes beyond an intimate agreement between two people. It is also a legal contract. Even though Florida is not a community property state, certain assets could be subject to division between you and your spouse if things don’t work out and you decide to divorce.
While the idea of a prenuptial agreement elicits cringes from many thanks to negative connotations that have developed, these are useful documents to protect your financial future and even agree on a division of assets with your spouse in the event of a worst-case scenario. Because they can be complex and even contested down the road, this is something you should always enter into with the assistance of an experienced Florida family law attorney.
What is a Prenuptial Agreement?
A prenuptial agreement is also referred to as a premarital agreement or just a “prenup.” This is a legal document signed by two parties that are planning to get married. The purpose of the document is to predetermine the rights and responsibilities of both parties in the event of a divorce or death while the parties remain married. The document can cover one or both of these scenarios.
Postnuptial agreements are similar to prenuptial agreements, but they are signed after the marriage takes place. While the reasons for entering into these agreements might be similar, there are slightly different rules for creating and signing them, so it’s important to speak with an attorney to avoid mistakes.
Why You or Your Spouse Might Want a Prenuptial Agreement
The reasons for wanting and agreeing to a premarital agreement can vary depending on the circumstances of the parties entering into the contract. Prenups and postnups are powerful documents when done properly, and can govern much more than people realize.
For example, a couple in their fifties who each have separate assets and grown children from prior marriages may not want to risk mixing those assets in a marriage. This is particularly true if their net worth is vastly different. If they divorce or one dies, the one with the higher net worth might want to ensure that their children receive assets instead of a new spouse.
Sometimes a prenup can state that neither party will receive alimony, no matter how long the marriage lasts. Or a prenup can preclude a spouse from getting property or assets that they might otherwise be entitled to if there were no agreement.
A prenup can even state that, if one spouse is unfaithful during the marriage, they will have to pay the other one a certain amount of money to help them transition to single life. There can also be provisions for what jurisdiction will handle the divorce proceedings.
As long as it is within the law, a prenup can also outline many roles and responsibilities within a marriage. For example, it can detail how a couple will raise their children, who will pay for what expenses, and even where the couple will live.
The Requirements of a Florida Prenuptial Agreement
For a prenuptial agreement to be valid and effective, it must meet the requirements of Florida’s Uniform Premarital Agreement Act (UPAA). There are several requirements for a valid prenup in Florida.
- The agreement must be in writing. All prenuptial agreements in Florida must be in writing and notarized by a certified notary public.
- Both parties must sign voluntarily. Both parties must sign a prenup, and there can be no duress involved. Prenups that are signed within days or hours of the wedding or under the influence of alcohol or drugs are sure candidates to be thrown out under grounds of duress.
- The agreement must be reasonable. Even when signed voluntarily, the terms of the agreement must be reasonable. By their nature, these agreements are typically biased towards one party or another, but they can’t be “unconscionable” or have terms that violate the law.
- The agreement must be validated by marriage. While a prenup might be drafted and signed well before a wedding date, it doesn’t become valid until the date the couple marries.
What a Prenuptial Agreement Cannot Cover
Florida prenuptial agreements cannot violate any law or public policy. If they do, they are considered invalid. Above all else, a prenup cannot require that a spouse waive child support or even set an amount for child support. These are figures that are set by state guidelines, and children don’t have the capacity to waive their rights to financial support.
Even though a spouse can waive their right to alimony in a prenup, the courts might not honor this agreement if one or more of the following are found to be true:
- The spouse who waived their right to alimony becomes a dependent of the state;
- The spouse who waived their right to alimony did so under duress or fraud;
- The spouse who waived their right to alimony receives a standard of living that is far below that which they had in the marriage.
If a prenuptial agreement is not valid or fair, there is a good chance that it can be attacked in court and nullified.
Attacking the Validity of a Prenuptial Agreement
If there is a divorce, it is not uncommon for one or both spouses to attack the validity of a prenuptial agreement. If there was duress or a failure to fully disclose assets when the agreement was signed, it could be thrown out.
Another way to invalidate a prenup is if the parties fail to adhere to its terms. For example, the prenup states that finances are to be kept separate and the spouses open joint accounts or buy property together. This could make the prenup unenforceable.
Discuss Your Prenuptial Agreement with a Qualified Pensacola Family Law Attorney
According to Florida law, both parties to a prenuptial agreement must be represented by their own attorneys for the final agreement to be considered valid. If you need to draft or review a prenuptial agreement in Escambia, Bay or Okaloosa County that will protect your personal and financial interests, contact Spencer Law, P.A. to discuss the matter with an experienced and knowledgeable family law attorney. Call our office today at 850.912.8080 to schedule your initial consultation or send us a message through our online contact form.