Florida Prenuptial Agreements –
A Wise Step Towards a Secure Future

Yes, with mutual consent and by following proper legal protocols, a prenup can be amended.

Nothing significant…A pre-nuptial, or premarital agreement, is an agreement between two prospective spouses made before marriage and becomes effective when you and your spouse marry. So even though these agreements can have different names (prenup, prenuptial agreement or premarital agreement) they all mean the same thing. In Florida the agreement is normally referred to as a “premarital agreement” which means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.

The specific needs of each couple will vary.

But, the Florida statute recognizes:

– the need to contract on property,

– spousal support (you should speak to an attorney regarding the state of the Law in Florida on temporary support, as this is a tricky area of the law),

– creation of a will or trust,

– benefits from life insurance,

– the choice of law governing the construction of the agreement,

– and any matter including personal rights and obligations that does not violate public policy of this state or a law imposing a criminal penalty.

Many potential clients come to asking if their prenuptial agreement or their premarital agreement is valid. They want to know if what they signed will hold up in court later on.

So, are there specific requirements to make a premarital agreement valid?

Yes.

Under Florida law, among other requirements, a premarital agreement must be in writing and signed by both parties and enforceable upon marriage. You can speak with William S. Foley, PA for other advice on ensuring that your premarital agreement is valid.

What does Florida us to determine if a Prenuptial agreement/premarital agreement is valid?

Florida Statute §61.079 follows a version of the Uniform Premarital Agreement Act (UPAA) which governs premarital agreements entered on or after October 1, 2007.

The UPAA follows Florida Family Law Rules of Procedure.

What are some things that make the prenup unenforceable?

A prenup/premarital agreement is unenforceable if it was involuntary, the product of fraud, duress, coercion, or the agreement was unconscionable.

We hear this ALOT! Unfortunately, this is many times asked a week before the wedding ceremony. This is not a great timeframe for us to draft the prenup. We may be looking at drafting a postnuptial agreement if you come to us so close to the wedding. The court is looking out for the timing of the agreement and if there was discovery exchanged and if both parties had the ability to knowingly and voluntarily enter into the agreement (among other requirements) so with the prenups that are presented to the other-side the day of on the exchange of vows, well, those are not necessarily a great idea! So, when should I get a prenup? OK. Let’s get back to the timeframe! How about call your attorney (or look for an attorney) 6 months prior to the wedding ceremony. 6 months prior! Yes! 6 months before the wedding ceremony is a good rule of thumb for William S. Foley, PA. That gives us adequate time to ensure your soon-to-be-spouse has an attorney, discovery is exchanged and that we can properly negotiate a prenuptial agreement with time to spare prior to your wedding ceremony. So the earlier you begin, the more likely your agreement will stand up. This is not to say your agreement can’t be drafted close to the wedding, but again those need to be handled carefully with proper precautions that need to be made in order to ensure that your agreement will stand up if challenged in the future. So, make it easier on yourself and as a part of your wedding preparations….venue – check, linens – check, honeymoon booked – check —> prenup lawyer — Check it off today!

This is a good question because a lot of times people think that a prenuptial agreement is going to be basically a cocktail napkin type agreement, one page that just says you keep yours I keep mine. Sign on the dotted line. In Florida this is incorrect. The law is very specific and case law is specific about the different requirements which you must have when creating a prenuptial agreement and the fact that financial disclosure of assets and income and liabilities is a large component really puts a necessary burden on both parties to make sure that they have disclosed everything to the other side. Now, you may be asking how do I do this? Well, it takes time and takes preparation and takes documentation to be able to prove that you have provided the requisite financial disclosure and requisite information to your soon to be spouse. A blanket statement of “I know what the other person has!” is not as strong as these are the documents that we have provided back and forth and financial statements by both parties showing their current assets and their current liabilities and also some proof of income of the party at the time. Now, why is this important? This is extraordinarily important because many prenuptial agreements basically state that the laws of the State of Florida will not apply if you end up getting a divorce. Therefore, a principle such as equitable distribution and alimony basically do not apply if you have already stated how you will be distributing property and what the alimony award, if any, will be so therefore, it’s a very large burden to make sure that you have done everything necessary and that the agreement was entered into voluntarily and freely by both parties, no one was under duress and they’ve had full and complete disclosure during the process. Therefore, do yourself a favor and hire an attorney that won’t just create a cocktail napkin for you to sign and someday possibly have it set aside. Go to an attorney that has experience in creating prenuptial and postnuptial agreements and someone that will create a document that’s a true formal contract executed, witnessed and that is appropriate under the laws of the State of Florida. Find someone that will make sure that you are adequately disclosing everything financially-related prior to entering into the prenuptial agreement. Anything else, is just a quick-fix that might cause headaches in the future. By investing a little more time and resources towards this important step, this will save you time, stress and money in the long run. In the short run, it is stressful and it can be time consuming but it is necessary. It’s better to go through this process when the two of you still love each other, rather than during a divorce, when you might not feel the same “loving” feelings towards each other.