Make Sure to Get What You Want in Prenuptial Agreements

Making the decision to get married is usually followed by a happy time free of worries about the future. Thoughts of what you might want or feel entitled to if the marriage does not work out at a later date is typically a topic most engaged couples want to avoid, but entering into a prenuptial agreement may be in best interest of both parties, especially if one if brings sizeable assets into the marriage. A recent decision by the Florida Supreme Court found that prenuptial agreements will be upheld even if the result is a bad deal for one spouse and deprived that spouse of property the spouse would otherwise receive under Florida law. This case highlights why it is important to enter into prenuptial agreements with clear goals in mind and thoughts of where you could be as a couple in the future. In order to better understand what having a prenuptial agreement really means, an overview of what can and cannot be included in such agreements will be reviewed.

What Is a Prenuptial Agreement

A prenuptial agreement in Florida is a written contract between a couple contemplating marriage that concerns property division and spousal support in the event of divorce. The agreement becomes effective on the date of the marriage and must be signed by both parties.

Allowed Provisions

Property retention and division is the main purpose of prenuptial agreements, and rights related to real and personal property are permitted in the prenuptial agreement, including active and passive sources of income earnings. Specifically, a prenuptial agreement can contain provisions related to the use, purchase, sale, management or control of property. It can also provide for what happens to property if one spouse dies, they divorce or the occurrence of some event. Further, the agreement can include provisions for the creation of wills or trusts to facilitate the execution of the agreement. The agreement can also establish, modify, waive or eliminate spousal support. Finally, a premarital agreement can designate who has rights to and distribution benefits from a life insurance policy.

Note that prenuptial agreements cannot contain terms that would be illegal to carry out or that would affect determinations of child support. If the couple later decides to amend, revoke or abandon a prenuptial agreement, there must be an agreement in writing and signed by both parties.

Not Enforceable

A premarital agreement is not enforceable in any of the following situations:

• one party did not voluntarily agree to the contract;
• one party entered the agreement due to fraud, duress or some other dishonest representation; or
• the agreement was unfair when it was executed because one party was not given full disclosure of the other party’s property holdings or financial obligations, full disclosure was not waived, and the party had no reasonable way to obtain this knowledge without full disclosure.

Additionally, if the marriage is later found to be void, the prenuptial agreement is not enforceable, except to the extent it is necessary to avoid an unjust result.

Seek Legal Advice

Thinking about engagement, and later marriage, is an exciting proposition that should be tempered by practical considerations of what you want to protect or reserve coming into marriage. If you are contemplating marriage and need information about creating a prenuptial agreement, the Tampa law firm of Bubley & Bubley, P.A., is here to help. Contact us by phone or online for a confidential consultation.