Prenuptial Agreements in Florida
Despite any couple’s best intentions of staying together forever, parties entering into marriage are well-advised to consider what will happen should they later decide to divorce. Prenuptial agreements are the safest way to protect the parties’ interests as they enter into a marriage, and couples must understand what happens if they sign a prenup and get divorced.
Our Prenup Attorneys
Prenuptial agreements can be a touchy subject for couples in the planning stages of a wedding. However, parties should come to the table sooner rather than later. For Floridians who need help drafting, negotiating, or understanding the terms of a “prenup” agreement they’ve been asked to sign, we recommend speaking with an experienced Florida divorce lawyer from The Law Offices of Travis R. Walker, P.A., before you send out the invitations.
What is a prenuptial agreement?
A prenuptial agreement is an enforceable contract that intended spouses enter before marriage. In it, a couple decides divorce or separation terms ahead of time, including whether one spouse will pay another alimony, how assets and liabilities will be distributed, entitlement to inheritances, and who will be responsible for attorney fees.
The theory is that it is much better to gain certainty while relations are still good rather than when the marriage is already unraveling. Prenups allow parties to decide their rights and responsibilities before they marry. For many, that is preferable to state law or a judge’s ruling on those rights if the marriage ends without an existing agreement.
Florida’s Uniform Premarital Agreement Act covers the enforceability of prenups, defines key terms such as “property,” and lays out situations in which a judge may override prenuptial agreement provisions.
What goes into the prenup?
Generally, prenuptial agreements address each partner’s rights on the issues of:
- Alimony, now called spousal support in Florida
- Equitable division of assets and liabilities
- Marital and separate property
Child custody matters are not appropriate for inclusion in a prenuptial agreement. Florida law and public policy do not allow addressing these matters before a child custody dispute occurs. Other legal nuances can limit a prenup’s terms, so drafting one is best left to an experienced family law attorney.
Who should have a prenuptial agreement?
People used to think of prenup agreements as only for the wealthy, but many more people are considering them these days. Premarital planning can be a good idea if one or both intended spouses:
- Has an interest in a business, including a family business
- Holds significant assets or debts before marriage
- Is anticipating an inheritance
- Has children from a prior marriage
- Has been divorced
- Has or plans to incur substantial debt
These issues are never easy to discuss, but you don’t have to do it alone. A good prenup lawyer will help facilitate the discussion, making it productive rather than contentious. Every member of The Law Offices of Travis R. Walker, P.A., is committed to normalizing the process so that you come away from it informed and empowered.
What Happens if You Sign a Prenup and Get Divorced?
If your prenuptial agreement is valid, divorce proceedings can be easier for both parties. There are fewer marital assets to divide, and other financial considerations are already determined. However, a judge can rule your prenup invalid and make your assets marital property. Florida law also may dictate exceptions to your prenup that you did not anticipate.
A Florida prenup is not enforceable if one party can prove any of the following:
- They did not enter into the agreement voluntarily.
- The agreement resulted from fraud, duress, coercion, or overreaching.
- The agreement was unconscionable.
If your prenup is valid, your property division and other agreement terms will proceed accordingly. However, your prenup may not have covered some aspects of your divorce. Other issues may be subject to specific nuances of Florida law.
Spousal Support
People sometimes use prenuptial agreements as a valid way to avoid paying alimony. However, Florida law dictates that a judge can override a spousal support provision if it would result in the receiving spouse qualifying for public assistance. In this instance, the judge can order enough spousal support to avoid such an outcome, regardless of the prenup’s terms.
Premarital Assets
Premarital assets included in a prenuptial agreement are protected, but a judge may rule that appreciation of those assets is marital property. Premarital assets that were commingled with marital assets also may be subject to division. For example, if you use money from a joint bank account during your marriage to add to a savings account protected by the prenup, the amount you added is marital property.
Marital Assets
Assets that the couple acquired together, such as a family home, vehicles, or joint bank accounts, are treated differently than pre-existing assets covered in your prenup. Under Florida law, most marital assets are subject to an equitable distribution.
Gifts or Inheritances During the Marriage
If you receive gifts or inheritances during your marriage that weren’t covered by your prenup, they may be subject to division if you divorce. This is especially true if they are commingled with marital property. If marital assets were spent to maintain a separate inheritance or gift, it also may be subject to division. To protect these new assets, talk to a knowledgeable family law attorney from The Law Offices of Travis R. Walker, P.A., about creating a postnuptial agreement.
Contact our Florida Prenup Lawyers
At The Law Offices of Travis R. Walker, P.A., we take the time to understand your situation and goals. We listen with empathy and draw on our experience in family law to find solutions tailored to your needs.
In addition to prenuptial agreements, we handle all types of issues relating to marriage and divorce, including the following:
- Postnuptial agreements
- Alimony
- Equitable distribution of assets
- Division of liabilities
- Child support
- Child custody
We are proud of our client testimonials for our professionalism, compassion, and legal skills. From negotiation and drafting to mediation and trial, our team is prepared to handle all the demands of your case.
Contact us today by completing our online form to schedule a private consultation or call our main office at 772-708-0952.
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