A Brief Guide to Prenuptial Agreements in Florida
It is very common today for couples contemplating getting married in Florida, especially where one or both of the parties have acquired considerable assets before the marriage or anticipate acquiring substantial assets during their marriage (by inheritance or otherwise), to enter into a prenuptial agreement.
Florida Prenuptial Agreement Law
While it is not necessarily very romantic, a prenuptial agreement often strengthens the marriage in that the issue of what might possibly happen in the event of divorce is off the table and no longer of concern to the married couple. Prenuptial agreements generally deal with what would occur in the event of a divorce of the parties and what would occur upon the death of the one of the parties.
Is It Valid?
Both the Florida Statutes and case law are clear that a valid prenuptial agreement will be fully enforced by the Court. It is imperative that a prenuptial agreement be drafted by an attorney who is very familiar with the law in this regard and with all the requirements that will make a prenuptial agreement valid and uncontestable.
How Much Does a Prenup Cost in Florida?
Ideally, a prenuptial agreement will be drafted and reviewed by the parties several months before their anticipated wedding. The closer to the wedding that the prenuptial agreement is signed, the more susceptible it becomes to an attack that it was signed under duress.
Each party to the prenuptial agreement must have his/her separate counsel. It is imperative that both parties receive the advice and counsel of an attorney of their own choosing; the prenuptial agreement should include the names of the attorneys who have given advice to each party. That will preclude a later attack on the prenuptial agreement claiming that a party did not know or fully understand what he/she was signing. Neither party should influence the other in any way as to the attorney that they are selecting and one party should not directly pay for the attorney of the other.
Do You Need A Lawyer to Get a Premarital Agreement?
It is absolutely imperative in creating a valid prenuptial agreement that each party fully discloses to the other all of his/her income and assets. The validity of a prenuptial agreement can be attacked by one of the parties for lack of full and candid financial disclosure. Therefore it is good practice to attach to the prenuptial agreement each party’s recent income tax returns, bank statements, brokerage statements, and a financial asset and liabilities statement/financial affidavit, so that there can be no question in the future that each party received full disclosure from the other of his/her assets, liabilities, and income.
A prenuptial agreement typically identifies all of the premarital (non-marital) assets of the parties and often provides that these non-marital assets, as well as their active and passive appreciation, will not be equitably distributed in the event of a divorce.
A prenuptial agreement typically deals with issues in the event of a divorce such as what amount of alimony, if any, is to be paid by one party to the other in the event there is a divorce within certain prescribed periods; for example, what alimony would be paid if there was a divorce in the first 2 years of the marriage, after 5 years of marriage, after 10 years of marriage, or after 20 years of marriage. The terms of the payment of alimony, both the amount and duration, may be negotiated between the attorneys for the parties if the parties have not come to an agreement in this regard.
A prenuptial agreement can provide agreements on a whole variety of other issues ranging from the religious upbringing of future children, to who is entitled to the tax deduction for the dependent children, but it cannot deal with or limit future child support.
In the event there is a divorce, the parties with a valid prenuptial agreement will avoid the cost, both financial and emotional, of lengthy negotiations and a possible trial, since all the terms of the divorce have been agreed upon before the marriage.
The prenuptial agreement also deals with how each party’s assets will be distributed upon his/her death. A valid prenuptial agreement will supersede the Florida elective share statue that provides that a spouse must minimally receive 30% of the other spouse’s assets, both marital and non-marital, upon the spouse’s death.
It is good practice that the parties reconfirm the terms of the prenuptial agreement in a short document after they have married.
In some cases, upon the parties’ request to do so, the signing of the prenuptial agreement is videotaped by a court reporter so there can be no future doubt that the parties entered into the agreement freely and voluntarily and with full knowledge of the other party’s assets.