Florida prenuptial agreements or premarital agreements are written contracts signed by two parties before the marriage. Post nuptial agreements are signed during a marriage, but generally follow the same rules. Prenuptial agreements pertain to property division and alimony upon a divorce.
While it is unpleasant to think about divorce before a marriage has taken place, having a prenuptial agreement reduces the strain of a divorce should one occur. Such an agreement is not uncommon in Florida, which reports a higher than average rate of divorce.
What does a prenup do?
A prenuptial agreement establishes the property and financial rights of each spouse upon a divorce. What a party receives after a divorce through a prenup greatly differs from what he or she would receive from a court order without one. Increasingly, more couples are signing prenuptial agreements to secure their financial futures and to make potential divorce proceedings more predictable.
A Florida prenup agreement can provide that neither party receives alimony after the divorce regardless of the length of the marriage. It could also help parties to avoid dividing property. If a party receives income from a nonmarital asset during the time of the marriage, such income is divisible between both parties upon a divorce if there is no prenuptial contract. With a prenuptial agreement, any income received from nonmarital assets can be protected.
Common issues negotiated during prenuptial agreements include:
- How the couple will divide property in the event of a divorce or death
- Whether alimony will be paid and if so, how much and for how long
- Who is responsible for liabilities incurred during the marriage
- Life insurance rights
- Rights to retirement assets
- Estate planning
- Which state’s laws will be used to interpret the agreement
Can a prenup be overturned?
A prenuptial agreement in Florida is rarely a modifiable document and is not easily overturned. Although it is possible to challenge it, the agreement cannot be overturned simply because a spouse is receiving a “bad deal.” Even if a spouse had a good job that paid well at the time the prenup was signed and was unable to find employment at the time of divorce, the prenup would not be altered to provide for alimony if it originally provided that no alimony would be awarded.
Prenup agreements, Child Custody & Support
Of the few rights that cannot be waived in a prenuptial agreement is the right to seek child support in the event that a child comes from the marriage that later ends in divorce. Therefore, the prenup cannot affect child custody. Florida courts must determine child support at the time of the divorce based on each spouse’s abilities to support the child and the child’s needs at the time. The right to child support belongs to the child himself. Judges must also determine child custody based on the child’s best interests rather than in a prenuptial agreement.
A prenuptial agreement in Florida should be drafted by a competent prenup attorney who can help one to truly understand what the agreement encompasses. A premarital agreement’s terms and consequences must be fully understood by both parties before the document is signed. The agreement should be issued to the other party well in advance of the impending marriage.
It is highly recommended that each party acquire the services of an attorney to preserve the agreement’s enforceability. An experienced Miami divorce attorney like Stephen H. Butter is able to help the couple negotiate the prenup with future plans in mind. Call Mr. Butter directly at (305) 333-7159.