Frequently Asked Question: Do I need a prenup?

It is an understandably awkward situation—two people moving toward their wedding date to declare their undying love, through better or worse, through richer or poorer, etc., but before this happens, also negotiating a contract that contemplates a possible divorce.

Describing a prenuptial agreement as a contract is a general definition; however, in short, a prenuptial agreement is a document that dictates the provisions in a divorce. Often this means that instead of relying on Florida law existing at the time of their divorce, the parties have instead decided to create their own set of rules in the event they should divorce. This reason—being able to control how the important aspects of their divorce will be handled—is the main advantage in entering into a prenuptial agreement.

Parties enter into prenuptial agreements for various reasons.   It may be that one or both parties have accrued significant assets prior to entering marriage, and although these assets may be pre-marital, under Florida law, the spouse may be entitled to a portion of those assets. Thus, the parties can contract in a prenuptial agreement that all pre-marital assets remain entirely the assets of the party who had them before the marriage.

Another example is when parties have children from a previous relationship that they would like to leave their assets to once they pass away.   Under Florida law, if there was no will, those assets would first pass to the surviving spouse.  A prenuptial agreement could provide that the surviving spouse waive all rights and interests that they may have had pursuant to the laws governing probate.  A common reason that some parties enter into prenuptial agreements is to determine how the issue of alimony will be addressed in the event the parties divorce. The above are only a few reasons for parties entering into a prenuptial agreement.  There may not even be a distinct reason why a prenuptial agreement is needed, but parties wish to think toward the future.

Keep in mind, there are some issues that cannot be dictated by a prenuptial agreement—-namely, anything having to do with children.  Thus, a prenuptial agreement cannot determine issues of time-sharing (custody), parental responsibility, or child support.   Also, under current Florida law, there are certain temporary rights—temporary support and temporary attorney’s fees—that cannot be waived pursuant to a prenuptial agreement; however, many parties still agree to waive these rights voluntarily within a prenuptial agreement.

There is a misperception that prenuptial agreements carry little weight in the legal world and that if either party expends enough money on challenging the prenuptial agreement, they can undo any prenuptial agreement. To the contrary, courts are very hesitant to undo contracts between parties, and that includes prenuptial agreements. There is an abundance of case law that establishes that a prenuptial agreement may still be binding although one spouse is unable to read English but signs anyway; or a spouse was on anti-depressants, anti-anxiety medications or other similar medications when they signed; or an agreement was signed only a few days before the wedding and the spouse was told that the wedding would be cancelled if they did not sign, etc.

The prenuptial agreement’s provisions directly impact the actions of the parties once married. Thus, depending on the controlling provisions, parties must make decisions as a married couple in terms of how assets are titled, how individual and joint funds are held, how to pay their income taxes, etc. In short, a prenuptial agreement involves developing and continuing a mindfulness toward important financial decisions and purchases during the parties’ life together.  Lastly, although prenuptial agreements are routinely perceived as a one-sided contract that benefits only one party, in truth, prenuptial agreements may be advantageous to both parties should their undying love, die.  At Artemis Family Law Group, we specialize in drafting and analyzing prenuptial agreements, from simpler agreements to more complex ones.  Contact us today to discuss whether and how a prenuptial agreement is something you should explore.