A prenuptial agreement is a document that outlines what happens to a couple’s individual and jointly held property, assets, debts, and inheritance, should the parties ultimately decide a dissolution of marriage is necessary, or should one of the spouses predecease the other. Florida is an equitable distribution state, so in the event of a divorce assets are divvied according to what the court deems fair, provided there is no prenuptial agreement. The judge would take into consideration things such as the length of the marriage, whether there are children, as well as the couple’s age, health, job skills and other factors.
Why should you have a Prenuptial Agreement?
A prenuptial agreement is very useful if you want certain assets to remain within a familial blood line or if you desire a clear division between your assets/debts and those of your spouse. Although at first glance, proposing a prenuptial agreement to your spouse prior to marriage may appear business-like and transactional in nature, it is ultimately a means to ensure that your hard-earned assets remain yours. Furthermore, executing a prenuptial agreement prepared by an expert family law and estate planning attorney can help to significantly reduce the costs of litigation should a dissolution of marriage ever occur, as many of the issues that create a contentious atmosphere during a dissolution of marriage (excluding child support) will already have been delineated within the prenuptial agreement, to be upheld at the time of dissolution, or even death. Such agreements may even include who shall be held responsible for such litigation costs.
What can be agreed upon?
Florida Statute 61.079 is the primary statute governing the use of prenuptial agreements, and outlines the following issues that may be agreed upon within a prenuptial agreement:
1. The rights and obligations of each of the parties regarding any sole or jointly owned property, whenever, and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. Who gets what property should a separation, marital dissolution, or death occur;
4. Whether alimony is to be established, modified, waived or eliminated;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. Ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including the parties’ personal rights and obligations, not in violation of either the public policy of Florida or a law imposing a criminal penalty.
IMPORTANT TO NOTE: The right to child support or attempting to waive or limit child support cannot be prearranged and will not be upheld if it is included in a prenuptial agreement.
A prenup is valid and effective at the time of marriage, but may be held invalid upon a finding that:
- It was not VOLUNTARILY executed by one of the parties;
- It was a product of fraud, duress, coercion, or overreaching;
- A party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
- A party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
- A party did not have, or reasonably could not have had, adequate knowledge regarding the property or financial obligations of the other party; and
- The marriage is determined to be null and void.
What is a postnuptial agreement?
A postnuptial agreement is a contractual agreement outlining the distribution of each parties’ assets upon death or dissolution of the marriage. Similar to a prenuptial agreement in subject matter; the true distinction between a postnuptial agreement and a prenuptial agreement is that a postnuptial agreement is entered into by the parties after the marriage has taken place.
A postnuptial agreement is valid and effective at the time of execution. The following list of reasons a postnuptial agreement can be invalidated is not comprehensive and all encompassing, but includes as follows:
- The parties were not married at the time the agreement was entered;
- The agreement is not in writing signed by the two parties;
- The agreement was not entered into by the parties voluntarily;
- One party did not have adequate knowledge of the property or financial obligations of the other party;
- The agreement does not contain a consideration;
- The agreement is not signed in the presence of two witnesses and a notary.
Why should you have a postnuptial agreement?
Many times, parties accumulate more assets during their marriage versus when they were single, and never even consider the idea that a prenuptial agreement may be beneficial. A postnuptial agreement will allow for the clear distribution of old and new assets accumulating before, during and after the marriage, as well as old and new debts, including joint debts, without the significant stress of dividing everything by way of court proceedings.
Wills and Estate Planning
Should one of the spouses predecease the other, the terms within a prenuptial or postnuptial agreement regarding rights of a surviving spouse to the following: an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any other such rights; which were properly waived in a prenuptial agreement or postnuptial agreement, may be upheld, so long as the agreement was in writing and was signed by the waiving party in the presence of two subscribing witnesses and a notary.
Creating a plan for your estate
If you have questions regarding prenups, postnups, wills, estate planning and more, please call us at 407.512.4394 to receive assistance with the aforementioned options or estate planning in general. Our experienced family law and estate planning attorneys would be happy to assist you in developing a plan to safeguard your hard-earned assets in the event and ensure that your will is followed should a dissolution of marriage become necessary, or should a spouse predecease the other.