Prenuptial Agreements

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Getting engaged is, no doubt, an exciting and joyful time filled with planning and preparation for the upcoming, dream wedding day.  Although definitely less romantic, it is also a crucial time to consider practical matters, like a prenuptial agreement.

What Is A Prenuptial Agreement?

A prenuptial agreement, often referred to as a “premarital” agreement or a “prenup” is a legal contract between two people who are planning to get married. Prenuptial agreements are entered into prior to the couple getting married in order to address issues that may arise should they later divorce. Instead of relying completely on what Florida law dictates, in a prenuptial agreement, a couple can create their own set of rules in the event of a divorce.

What Issues Can A Prenuptial Agreement Cover?

Essentially, a prenuptial agreement acts as a “blueprint” for how a couple’s potential divorce in the future will be handled. Prenuptial agreements primarily cover various financial issues. Thus, they can cover issues regarding division of property (i.e., businesses, real estate, personal property, etc.) and alimony. One of the most important aspects of a prenuptial agreement is defining what constitutes non-marital property versus marital property, and how the two types should be treated in a divorce. Depending on the couple and their goals during and after the marriage, the provisions contained in prenuptial agreements vary from treating these issues very broadly (for example, an overall position of “what’s mine is mine and will always be mine and vice versa) to having very detailed requirements regarding some issues (for example, a calculation of support based on how long the parties remain married).

There are also certain issues that cannot be waived in a prenuptial agreement. Further, a prenuptial agreement cannot dictate anything related to children, such as time-sharing or child support. The courts will always have final decisions regarding issues related to children because the best interests of the children will be the overriding consideration.

What Is Contained In A Valid Prenuptial Agreement?

An effective prenuptial agreement ensures that its terms will be enforceable should the couple decide to divorce. In Florida, prenuptial agreements are governed by the Uniform Premarital Agreement Act. Florida Statutes section 61.079. A prenuptial agreement must meet certain criteria to be valid and enforceable.

  1. Full Disclosure: Both parties must provide complete and accurate information about their finances. Hiding assets or debts can render the agreement invalid.
    Voluntary Agreement: The agreement must be entered into voluntarily, without any coercion or duress. Both parties should have ample time to review the document before signing.
  2. Fair and Reasonable: The terms of the prenup should be fair and not overly one-sided. It should not promote unfairness or violate public policy.
  3. Independent Legal Counsel: While not required, it’s advisable for both parties to have their own attorneys to review the agreement. This ensures that each party understands their rights and obligations fully.
  4. Proper Execution: The prenuptial agreement must be in writing, signed by both parties in the presence of witnesses, and notarized.

Understandably, couples about to enter into a marriage may feel conflicted about negotiating issues for a possible divorce in the future. However, a well-crafted prenuptial agreement can actually provide peace of mind and financial security. Also, crafting prenuptial agreements using the Collaborative law model can lessen the natural strain and feelings of imbalances of power in prenuptial agreements. Artemis Family Law Group is highly proficient in the complex issues involved in drafting objective, comprehensive, and fair prenuptial agreements, allowing you to focus on building a happy and fulfilling life together. If you would like to discuss prenuptial agreements or any other family law matter, please click here to schedule a consultation.

Frequently asked Questions

The short answer – It depends. One of the requirements for a valid prenuptial agreement is that it is signed voluntarily without any coercion or duress. If your wedding is happening, for example, in one week, it might be argued that because the wedding date was so close to when the prenuptial agreement was signed, your fiancé felt pressure to sign it and felt he or she had no other option because the wedding would not happen unless they did sign. Best practices are to have the prenuptial agreement drafted, financial disclosure exchanged, and execution occur sometime before the actual wedding (generally, a month before the wedding is the absolute minimum time).

The short answer – Everything. Again, the main thing you want from a prenuptial agreement is that it will be enforceable should a subsequent divorce occur. The exchange of complete and accurate financial information is necessary to show that each party has knowledge of the other party’s finances so that they can voluntarily and intelligently enter into an agreement which may include giving up on some rights that finances would affect. Should you fail to disclose something, one party might try and declare the prenuptial agreement invalid because they would have never signed it if they had known about this particular detail. However, the couple could agree within the prenuptial agreement that they are aware of each other’s financial situation and limit the financial disclosure to be provided.

The short answer – No. Your attorney only works for you. They cannot provide any legal advice to your fiancé. Your fiancé does not need to have their own attorney, but it is highly advisable that they do. By having their own attorney to advocate for them and review the prenuptial agreement in detail with them (and, if applicable, in their primary language), reinforces that your fiancé understood the provisions in the prenuptial agreement and signed it voluntarily. This, in turn, strengthens the prenuptial agreement’s enforceability.

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