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Prenuptial Agreement

 

PRENUPTIAL-AGREEMENTS

 

 

 

When you and your partner are planning to wed, it may be a good idea to enter into a prenuptial agreement prior to tying the knot. A prenuptial agreement (also known as a “premarital agreement” in Florida) is a contract made between prospective spouses that details how assets and property is to be divided, and how other issues are to be handled upon a divorce. Fla. Stat. § 61.079.

 

Although a prenuptial agreement tends to have a negative connotation, a prenuptial agreement can be very beneficial in lessening the stress and financial burdens that accompany the unfortunate occurrence of divorce.

 

 

8 Reasons to Consider a Prenuptial Agreement

 

1. Protects non-marital finances

 

Non-marital assets are assets acquired prior to a marriage and are not to be divided between spouses after a divorce. Fla. Stat. §§ 61.079, 61.075. However, without a prenuptial agreement, it may be difficult to determine which assets are non-marital and which assets were acquired during the marriage.

 

A prenuptial agreement defines what assets are yours and considered non-martial. Additionally, if you are a business owner, it is wise to have a prenuptial agreement. If your business has an increase in value while you are married, then that increase in value becomes marital property. Therefore, following a divorce, your former spouse may be able to claim some of the business’ income or appreciation.

 

 

2. Details property division

 

A prenuptial agreement is recommended if you want to control how property is to be divided upon divorce. If there is no prenuptial agreement, then Florida law calls for the equitable distribution of property between spouses which can actually be unequal and “unfair.” A prenuptial agreement can protect your real and personal property.

 

The agreement can even outline how property is to be distributed if death occurs, including death benefits such as life insurance policies. Fla. Stat. §§ 61.079(2)(b), (4).

 

 

3. Provides for alimony calculation

 

Alimony is an issue of much contention between divorcees. Florida looks at various factors, such as length of marriage, need and ability to pay, when determining how much alimony a spouse should receive and the duration of alimony. Therefore, it is beneficial to have an alimony arrangement within a prenuptial agreement.

 

If you earn much more money than your spouse, then a prenuptial agreement may be used to limit, waive, or eliminate alimony. Fla. Stat. § 61.079(4)(a)(4). You will save a lot of time and money, and will have a less exasperating legal battle.

 

 

4. Protects from other spouse’s debts

 

It is not uncommon for one spouse to have more debt than the other spouse. It may be the case that you have no debt, but your spouse has a tremendous amount of debt. Even if that is the case, creditors can, nonetheless, come after marital assets or property. Fla. Stat. § 61.075(2). Therefore, it is advisable that you enter into a prenuptial agreement to limit debt liability during your marriage and following your divorce.

 

5. Protects inheritance

 

Your inheritance is deemed non-marital property. However, many times spouses tend to co-mingle their inheritances or use their inheritances to purchase something for the marriage; thus, transforming their inheritances into marital property or assets subject to division upon divorce.

 

A prenuptial agreement will protect your inheritance, so that it solely belongs to you. Additionally, you should include any family heirlooms or other family property in your prenuptial agreement, so that they remain within your possession.

 

6. Protects estate plan

 

In Florida, upon your death, your spouse is entitled to inherit from your estate. Even if you prescribe in your will that your spouse shall not receive anything from your estate, Florida has law in place that, nonetheless, provides that your spouse is entitled to their elective share of your estate, not exceeding thirty percent. Fla. Stat. §§ 61.079(10), 732.701, 732.702.

 

A prenuptial agreement can nullify such entitlement, and may protect the shares of your estate that you would like reserved for your children and grandchildren from a previous marriage.

 

 

7. Eases the legal process of divorce

 

Divorces can be lengthy and expensive. A prenuptial agreement helps to avoid the grueling divorce process and provides for a smoother, more amicable dissolution. A prenuptial agreement essentially removes the potentially contentious negotiation phase of divorce. Prenuptial agreements make the process easier for you, your spouse, and the court.

 

  8. May strengthen your marriage


Although many tend to view prenuptial agreements as harmful to prospective marriages, prenuptial agreements may actually strengthen marriages. For instance, if you are far wealthier than your prospective spouse, a prenuptial agreement may invoke confidence that your prospective spouse is not marrying you for financial gain or security.

 

Furthermore, being able to discuss such matters prior to marriage may indicate that you and your prospective spouse will be able to handle tough marital discussions and situations that are omnipresent in most marriages.

 

 

Requirements for a Prenuptial Agreement

 

For a prenuptial agreement to be valid, you and your partner must adhere to four requirements: the agreement must be in writing; the agreement must be voluntarily signed by both of you; the agreement must be notarized; and, you and your partner must actually get married. Fla. Stat. § 61.079(3), (7).

 

A prenuptial agreement only becomes enforceable once you and your partner say I do.

 

Prenuptial Agreement and Child Support

 

You cannot modify your child support obligations through a prenuptial agreement. Florida law strictly prohibits prenuptial agreements from adversely affecting the right of child support. Fla. Stat. § 61.079(4)(a)(8)(b). If such language is within a prenuptial agreement, the child support provision or entire prenuptial agreement will be unenforceable and invalid.

 

Postnuptial Agreement

 

In Florida, postnuptial agreements are enforceable. Unlike a prenuptial agreement, a postnuptial agreement (also known as a “postmarital agreement” in Florida) is a contract that spouses sign after they have been wedded. The issues that may be included within a postnuptial agreement are virtually the same as the ones allowed to be included within a prenuptial agreement.

 

The main difference is that for a postnuptial agreement to be valid and enforceable, spouses must fully disclose their finances (i.e., assets, debts, income(s)) to each other prior to signing the agreement. If information is withheld or incorrect, then the agreement will be invalid and not enforceable.