Should I Get a Prenuptial Agreement Before Getting Married in Florida?

By: Iman Zekri, Esq.

So, you want to make it official. The proposal was perfectly executed, the wedding venue is booked, and the honeymoon is planned. The last thing anyone wants to talk about during this time of pre-wedding bliss is a potential divorce or hiring a lawyer. But, what if your fiancé asks you to sign a prenuptial agreement a few days before the wedding? What if you want to protect your assets from a marriage gone wrong? What are the benefits of having a prenuptial agreement in place?

This article discusses why you should consider entering into a prenuptial agreement before getting married and what types of provisions you may want to include in your prenuptial agreement.

What is a prenuptial agreement?

A prenuptial agreement, also known as a “premarital agreement” in Florida, or a “prenup” for short, is a contract between prospective spouses made in contemplation of marriage. The agreement is signed before the couple marries, and it becomes effective once the marriage takes place. Among other things, a prenuptial agreement may address rights to alimony and the division of property and debts in the event of a divorce. A prenuptial agreement may also address how property will be distributed in the event of death.

What are the benefits of having a prenuptial agreement?

There are many benefits of entering into a prenuptial agreement before getting married. First and foremost, a well-drafted prenuptial agreement allows partners to address the most common legal issues that arise in a divorce, which can facilitate a quick resolution if the marriage ends in divorce. Divorce is often an emotionally and financially costly process.

By establishing the rules that will apply in the event of a divorce, prenuptial agreements can help avoid costly litigation and reduce stress in the divorce process. Second, entering into a prenuptial agreement forces a couple to discuss managing money and their expectations surrounding important financial issues. Talking about challenging topics, such as property and finances, can help strengthen a couple’s relationship by promoting open, honest communication and establishing a deeper level of trust.

Third, a prenuptial agreement provides you with control over your financial future by allowing you and your fiancé to make decisions about your marriage, rather than leaving those important decisions in the hands of a judge who determines what is equitable in the event of a divorce.

Finally, a prenuptial agreement can be a valuable tool for protecting the inheritance rights of your children from a previous relationship and other family members.

What are the requirements for an enforceable prenuptial agreement?

2007, Florida adopted the Uniform Premarital Agreement Act, or the “UPAA,” which outlines the requirements for an enforceable prenuptial agreement and lists the topics that may be addressed in a prenuptial agreement. For starters, a prenuptial agreement must be in writing and signed by both parties to be valid. Also, a prenuptial agreement is not effective unless and until the parties are married.

Each party must have entered into the agreement voluntarily and free of coercion or duress, and each party must have fully and fairly disclosed his or her assets, liabilities, and income to the other party before the agreement was signed.

The purpose of this full and fair financial disclosure requirement is to ensure that each party has enough information to make an informed decision about whether or not to sign the prenuptial agreement. Importantly, the fact that one party made a bad bargain is not sufficient to avoid a prenuptial agreement. Rather, in order to successfully challenge a prenuptial agreement on grounds of unreasonableness of the agreement, the challenging spouse must prove that he or she did not receive a fair disclosure of the other party’s financial circumstances and that the agreement is unreasonable.

What issues can a prenuptial agreement address?

Parties to a Florida prenuptial agreement may address the following eight topics:

1. the rights and obligations of each party in any property owned by either or both of them;
2. the right to buy, sell, manage, and use property;
3. the distribution of property upon divorce, death, or the occurrence of any other event;
4. the establishment or elimination of alimony;
5. the making of a will or trust to carry out the terms of the prenuptial agreement;
6. the disposition of death benefits from a life insurance policy;
7. the choice of law governing the prenuptial agreement; and
8. any other matter that does not violate law or public policy.

What terms should you consider including in your prenuptial agreement?

Alimony

In Florida, alimony, or spousal support, can be waived in a prenuptial agreement. Oftentimes, alimony is a contentious and fiercely litigated issue in a divorce case. Florida’s alimony statute gives the judge broad discretion in setting the amount and length of alimony. Since there is no formula for calculating alimony in Florida, incorporating a waiver of alimony in your prenuptial agreement may help reduce time and legal fees if a divorce later ensues.

Property Rights

Parties may specifically define “marital property” and “separate property” in their prenuptial agreement. Without these provisions, the judge would apply Florida’s equitable distribution statute in the event of a divorce. Florida’s equitable distribution scheme directs judges to equally divide a couple’s marital assets and liabilities unless there is a special reason for an unequal division.

Generally, all assets acquired and liabilities incurred during the marriage are considered “marital” under Florida divorce law. By changing this default rule to instead make title the determinative factor or by expressly carving out a category of assets as your separate property in the prenuptial agreement, you can help protect your assets in the event of a divorce.

Income

Most people do not realize that any income earned by either spouse during the marriage is considered “marital” property in the event of a divorce. However, in a prenuptial agreement, you can protect your income earned during the marriage from future division if the marriage is dissolved. For example, in a prenuptial agreement, parties can specifically provide that each spouse’s earnings during the marriage will remain that spouse’s “separate property” in the event of a divorce.

Attorney’s Fees

You can also include a prevailing party attorney’s fees clause in a prenuptial agreement. A prevailing party clause typically provides that if a party challenges the prenuptial agreement or sues for breach of the prenuptial agreement, the losing party must pay for all of the winning party’s legal fees. This provision can help deter legal challenges and ensure that a well-drafted and properly executed prenuptial agreement withstands any drawn-out legal battles in court.

Homestead Rights

The rights of a surviving spouse to homestead may be waived in a prenuptial agreement so long as the agreement is signed in the presence of two witnesses. In Florida, residents are entitled to broad homestead protections in the event their spouse dies during the marriage. While this may sound desirable to most people, if you are entering into a second or third marriage, you have children from a previous relationship, and your primary residence is titled in your individual name, conferring homestead rights to your new spouse upon marriage may not be in line with your estate planning goals. A homestead waiver in a prenuptial agreement gives parties the flexibility to provide for someone other than their surviving spouse upon their death.

Elective Share

In Florida, regardless of what a person’s will provides, their surviving spouse is entitled to claim an elective share of the deceased spouse’s elective estate. The elective share in Florida is 30% of the deceased spouse’s elective estate. A prenuptial agreement can be used to waive the elective share, which may be suitable for an individual who is entering into a second marriage and would like to pass all of their wealth to their children from their previous marriage.

What issues can a prenuptial agreement not address?

Not all matters may be resolved in a prenuptial agreement. In Florida, a prenuptial agreement may not adversely affect child support or child custody. Child support is calculated at the time of divorce based on each spouse’s ability to pay and the child’s present needs. Likewise, child custody determinations are based on the child’s best interests at the time of the divorce. Also, provisions in a prenuptial agreement that attempt to limit support during a pending divorce case are not enforceable under Florida law.

Of course, any illegal provisions or terms that violate public policy will also be deemed invalid.

Take-Aways

When drafted properly, a prenuptial agreement serves as a valuable tool that provides individuals with asset protection and financial security. A prenuptial agreement provides greater certainty for couples faced with divorce and helps reduce conflict and legal fees by clearly establishing each spouse’s rights and responsibilities in the event of a divorce. Further, by addressing each spouse’s rights and obligations in the event of death, a prenuptial agreement provides peace of mind to spouses seeking to provide for their children from a prior marriage while simultaneously wanting to have the flexibility to provide for their current spouse.

If you have additional questions about Florida prenuptial agreements or would like to have a prenuptial agreement drafted or reviewed, you may contact me directly at (239) 344-1119 or iman.zekri@henlaw.com.