What you should know about "prenups" in Florida

March 22, 2014

What you should know about "prenups" in Florida

Article provided by Law Office of Benjamin T. Hodas, LLC
Visit us at http://www.hodaslaw.com

Prenups get a bad rap. Thanks to movies, television and media coverage, many people are convinced that prenuptial agreements (also called "prenups," "premarital agreements" or "antenuptial agreements") are only used by very wealthy people to wrongfully keep a less-pecuniary spouse from getting a fair share of marital assets in the event of a divorce. Some assume that prenups have no relevance for couples who aren't "rich." Still others heard the phrase "prenuptial agreement" and think that their future spouse doesn't trust them or believe the marriage will last. None of these views are entirely accurate.

The Florida legislature, eyeing the inherent value in prenuptial agreements, adopted the Uniform Premarital Agreement Act (Florida Statutes Chapter 61, Section 79) in 2007. This act governs the drafting, enforceability and limitations of Florida prenups, and gives clarity as to the requirements and parameters for such agreements.

The simple truth

Prenuptial agreements are not solely for wealthy individuals, although the reality of appropriately and adequately preparing for and entering into one may preclude their use in some situations. Prenups aren't a precursor to an ill-fated marriage, but instead are a tool to entertain the reality of the parties' monetary positions and concerns at the earliest opportunity. Hammering out financial details and having an understanding of your spouse's economic perspective prior to the wedding can actually prevent arguments about money during the marriage itself (not just during a divorce).

In addition, prenups are extremely useful for protecting premarital assets for future generations in second or third marriages. If, for example, one spouse comes into the marriage with children from a previous relationship, that spouse may want family heirlooms, real estate, trusts or certain funds to pass to the children, not an ex or even a subsequent spouse. The same adheres to family-owned businesses; a prenup can dictate that the business itself will remain as the separate property of one spouse but that income earned therefrom during the marriage may be handled differently. Pre-marriage decisions may establish realistic expectations for both parties going in, and, should the marriage end, result in a less contentious, expensive or prolonged divorce litigation.

Prenups may also be used to set out important considerations for the marriage itself. For example, a prenup might acknowledge that the couple's children will be raised of a certain faith, or that one party will be eligible for spousal support/alimony payments or a lump sum distribution after the couple has been together for a certain amount of time.

"Postnuptial agreements" entered after the wedding are another viable option. Postnups are often entered into, even in a marriage with a prenup, to solidify and provide additional consideration after the marriage, to amend the prenup or to address additional issues that may have arisen.

Limitations

It is important to know that premarital agreements cannot contract away one party's responsibility to pay child support or seek custody or timesharing of the couple's children. While these issues may be addressed by the parties in an agreement, they are public policy concerns that will nonetheless need to be approved by the Court.

Speak with an experienced Florida family law attorney in your area to learn more about prenuptial and postnuptial agreements and whether one may assist you in obtaining your objectives in contemplation of marriage and in the event of divorce.