A premarital agreement in Florida is also known as a prenuptial agreement, or as an antenuptial agreement. A Florida prenuptial agreement is difficult to draft and for good reason. The finished product is often complex because of the preparation and disclosures involved. Clients want a premarital agreement to protect themselves from financial battles in case of divorce. To ensure your prenup is enforceable, call the Jacobs Law Firm to speak with an Orlando prenuptial agreement attorney today.
Florida Prenuptial Agreement Statute
Florida Prenuptial agreement law, specifically, Florida premarital agreement Statute 61.079, is known broadly as the “Uniform Premarital Agreement Act.” Under the Statute, a premarital agreement in Florida is defined as an agreement that is entered into by prospective spouses (this applies to heterosexual and homosexual marriages) in contemplation of marriage. A contract requires there to be an offer, acceptance of that offer, and valid consideration. The consideration for a prenup is the marriage itself.
The plain language version of the Florida Prenuptial Statute is as follows: Two people want to get married. Both parties want to protect their assets in case of a future divorce. They both agree to enter into a prenuptial agreement in Florida in order to have some security during and after their marriage. The process begins, and it is advisable that both parties hire A Florida prenuptial agreement is effective only once the parties tie the knot. This is fairly obvious, but it needs to be spelled out just in case there is a misunderstanding. The Statute lays out the process and the requirements for entering into a prenup.
The Statute tells us that a valid and enforceable prenup may include current, or future, (vested or contingent) interests in property. This includes real property such as houses, condos, office spaces, plots of land, tangible property such as jewelry or cars, and all sources of income and earnings. The Statute importantly clarifies that a prenuptial agreement covers both passive and active income. A source of active income is the paycheck you earn on a regular and consistent basis. An example of passive income is the money that may trickle in from investments you have made such as owning an office space and accepting rent from your tenants.
To be enforceable, a Florida premarital agreement must be signed by both parties and should be notarized for authentication and verification.
What is in a Florida Premarital Agreement? Orlando Prenuptial Agreement Attorney
The Statute defines what may go into a premarital agreement in Florida, and in a sense directs us as to what may be excluded. First, the agreement must identify the rights and obligations of each of the parties in any property that they own (pardon the redundancy, but this again refers to cars, plots of land, houses, office buildings, intellectual property rights, etc.). When property interests are involved, the parties should specify what their rights and obligations are concerning the sale, use, transfer, lease and assignation of those interests.
Probate attorneys that deal with the disposition of property upon death appreciate that Florida premarital agreements often particularize how property will be distributed on the death of a spouse that was a signatory to an enforceable prenup. More importantly for our discussion, is that a prenuptial contract will specify how property will be divided and distributed upon divorce or permanent separation.
Premarital Agreements and Alimony
Let’s face it, if you are getting married, it is probably you have searched for this article to find out how premarital agreements and alimony work in Florida. One of the most frequent reasons a couple seeks the advice of an Orlando prenuptial agreement attorney, is to determine what is fair and equitable for an award of alimony upon dissolution of marriage. A Florida prenup can cover a lot of ground with alimony. For instance, the parties may choose to make alimony for a certain period of time at a certain amount that is non-modifiable. Alternatively, the parties must choose to allow for alimony to be modified if one spouse reaches a certain income threshold (i.e. Wife becomes a doctor and triples her salary, or Husband secures a max NBA contract). The parties to a prenuptial agreement in Florida may also select to eliminate spousal support. This is the beauty of a prenuptial agreement, the freedom of choice within reason.
Perhaps you have heard of public policy. Public policy and law have enjoyed a long-standing relationship. Provisions in prenuptials can violate public policy and be rendered unenforceable. For instance, if husband is a millionaire and specifies that his wife (who is unemployed for purposes of this example) will receive no alimony, no property, and no support of any kind, this may run contrary to Florida divorce statutes and could be considered in violation of public policy.
Premarital Agreements and Child Support
The Florida Prenuptial Statute makes it clear that premarital agreements in Florida may not eliminate a party’s child support obligation(s). Child support is for the best interest of the child and is intended to safeguard children. A clause in a prenup that seeks to eliminate child support will be unenforceable. This will not render the entire agreement null and void, but it may cast a shadow over any other provision that is questionable.
Is Your Prenuptial Agreement Enforceable or Invalid?
Florida’s Prenuptial Statute guides litigants in determining if their prenuptial agreement is enforceable. A prenuptial agreement in Florida is unenforceable if:
1. One of the parties to the agreement did not execute the agreement voluntarily;
2. The prenup 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:
a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (making proper disclosures is vital to the enforceability of a prenuptial agreement, and this can be done if both parties voluntarily waive disclosure in writing after careful consideration)
b. 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
c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (This is a sort of escape-valve. If spouse A could not reasonably have foreseen that spouse B would earn 50 million dollars two years later, perhaps the court will allow spouse A to sue for spousal support even if the agreement provided to the contrary)
(b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.” (To allow one party to a divorce to be prosperous financially and the other party to be forced to register for public assistance would be unconscionable).
Jonathan Jacobs is an Orlando prenuptial agreement attorney that absolutely loves working with clients to plan for their financial future. Drafting and enforcing a premarital agreement in Florida may protect clients from financial battles in case they ever get divorced. To ensure your prenup is enforceable, call the Jacobs Law Firm to speak with a divorce attorney in Orlando and Winter Park, or a divorce attorney in Clermont, to find out if a Florida prenuptial agreement is appropriate for you.