Prenuptial Agreements

For many couples, the prospect of marriage is an exciting experience that acts as a formal declaration of their commitment to each other. Before dashing up to the altar, exchanging vows, and signing a marriage license, however, there are many different things that need to be considered. One such thing to consider is that over half of marriages in the United States fail. And while it may seem that your marriage is different, keep in mind that if things do go sideways, do you and your partner have a feasible way of untangling the financial fusion created during your marriage? The legal answer is no unless you have a  premarital agreement, also known as a prenuptial agreement.

A prenuptial agreement is a written contract between the soon-to-be spouses. Many people believe that proposing such an agreement to their partner is a bad omen for the marriage, as if they are expecting a divorce down the line. This, however, is a misconception.

Seriously discussing a prenuptial agreement encourages more honest communication between partners, which can strengthen the marriage before it begins. Additionally, as with any part of life, there are always unforeseen events that can occur, which may significantly impact a partner’s outlook on the marriage and lead to divorce. Having a prenuptial agreement in place early enables both parties to enjoy an easier transition when it comes to asset distribution. Finally, a prenuptial agreement is not always executed in the event of divorce; it can also be executed when a separation or death of a spouse takes place.

Prenuptial agreements can be drafted for virtually any purpose. Florida statute 61.079(4) describes several circumstances that such an agreement can be drafted for, which involve:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The establishment, modification, waiver, or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.

For the prenuptial agreement to be binding, two conditions must be met. Firstly, the agreement must be in writing and signed by both parties. Secondly, as the name implies, both parties must become married to each other at some point following the drafting and signing of the agreement.

The agreement can be altered at any time following the marriage, so long as both parties provide a written signature approving of the change. It is important to note that once the amendment or revocation has been approved, it is considered fully enforceable. The original text is no longer binding unless there is another amendment or premarital agreement altogether that reinstates it.

A prenuptial agreement is considered fully enforceable by either party once the two conditions are met. However, there are multiple circumstances that may make such an agreement unenforceable. These circumstances are defined by subsection (7)(a):

1. The party did not execute the agreement voluntarily;
2. The agreement was the product of fraud, duress, coercion, or overreaching; or
3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
   1. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
   2. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
   3. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Prenuptial agreements can be incredibly useful tools for one’s marriage; however, they can also be complex and difficult to understand, possibly leading to an unfavorable outcome or even a nullified agreement if drafted incorrectly. If you are considering marriage, you will need a seasoned family law attorney to help you determine whether a prenuptial agreement would be beneficial and properly draft it for you. Call the family law attorneys at Hendry & Parker, P.A., located in Dunedin, at (727) 205-5555 today for a free case review.