What Is A Prenuptial Or A Post-Nuptial Agreement Under Florida Law?

A prenuptial agreement is entered prior to the parties getting married. Generally, a party would want to obtain a prenuptial agreement if they have assets that they want to protect during the course of the marriage. Florida law states that anything acquired during the course of the marriage is subject to 50/50 division, regardless of whose name is on the title. However, if you had a prenuptial agreement, it bypasses the statute to make sure that anything in your own personal name may remain yours in the event that either party files for a divorce.

An issue can arise when parties open joint accounts during the marriage and then they take marital funds and start renovating premarital properties or paying premarital bills with marital funds. At that point, they’ve co-mingled that premarital property. In doing so, upon a dissolution of marriage the other spouse can claim an interest in the premarital property. If you have an inheritance, it is an exception to the equitable distribution rule, but if you’ve co-mingled that property, it could be subject to equitable distribution. However, if you had a prenuptial agreement, that inheritance would be safe upon a dissolution of marriage, so long as you know how to live with the prenuptial agreement. I always provide my clients with detailed information regarding premarital assets and how to protect them with and without a prenuptial agreement.

Prenuptial agreements can also include provisions as to what will happen to property upon the death of either party. In the state of Florida, if a spouse is left out of the will, that spouse can claim an elective share of the other party’s estate and may be awarded a certain percentage of the estate, even if the other party intended to leave their spouse with nothing. However, if you had a prenuptial agreement, you could preclude the other person from doing so and protect your assets upon death.

What Are The Top Misconceptions People Have About Prenuptial Or Post-Nuptial Agreements?

Most people don’t realize that income received during the marriage is a marital asset. Using marital funds to increase the value, pay off the liabilities, contributions made during the marriage or other improvements towards a premarital asset may turn it into a marital asset subject to division if the parties divorce. Unfortunately, by the time a petition for dissolution of marriage has been filed, it’s too late. They haven’t properly protected their assets with a prenuptial agreement and precluded their income from being a marital asset.

At What Point Should Couples Discuss A Prenuptial Or Post-Nuptial Agreement?

A prenuptial agreement must be discussed prior to the marriage. I would recommend that the parties start talking about prenuptial agreements as soon as they start talking how they’re going to deal with their finances as a married couple. The important thing to understand is the agreement must be presented to the other party well prior to the date that the parties intend to be married. The agreements require disclosures of assets and liabilities for both parties, time for negotiations, and the opportunity for parties to seek legal representation prior to signing. This may take some time and should not be rushed. Postnuptial agreements are entered into during the marriage. The same disclosures, negotiations, and opportunity to seek legal counsel must occur prior to signing. I suggest contacting my office as soon as you think you might need such an agreement.

Are Prenuptial Or Post Nuptial Agreements Broken Or Rendered Invalid Easily?

A prenuptial or postnuptial agreement can be contested for a number of reasons. The first major reason is the parties didn’t do a complete fair and full disclosure prior to entering into the agreement. Additionally, they can be contested or set aside if the courts find there was fraud or duress, or coercion, in addition to the unfairness of the agreement. If one party was unable to seek an attorney’s advice before signing, they may be able to contest the agreement and have the agreement set aside. There is ample case law on the construction of prenuptial agreements and post nuptial agreements, where the courts have rendered them invalid. The facts and circumstances are different for every case, however, both the case law and the statutes help in the drafting and litigation of these agreements.

Are There Things That Cannot Be Addressed In A Prenuptial Or Postnuptial Agreement?

There are a couple of things that can’t be put into a prenuptial agreement. If the parties are planning to have children, they cannot agree as to what the timesharing plan will be, what parental responsibility will be, or what child support will be. The Courts will not enforce these provisions as they reserve to make a determination as to what is in the best interest of the child. While issues related to the children generally cannot be in a prenuptial agreement, issues related to finances, such as alimony and attorney fees, can be agreed upon and enforced in a dissolution of marriage proceeding.

For more information on Prenuptial & Post-Nuptial Agreements In FL, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (239) 334-4383 today.