A prenuptial agreement (most commonly referred to as “prenups” or premarital agreements) is an agreement made between two parties that intend to marry, for the purpose of defining the terms of the marriage and/or to designate or govern certain rights and conditions that would apply if the parties divorce.
A prenuptial agreement becomes effective upon the marriage of the parties. In other words, the agreement will not be valid unless the couple marries–even if the agreement is executed.
A prenuptial agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.
What can the parties agree on?
Parties to a prenuptial agreement may agree to certain terms they negotiate on. Florida Statute §61.079 provides several examples of what the parties may agree to, which include:
- 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;
- 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;
- The disposition of property upon separation, divorce, death, or the occurrence or nonoccurrence of any other event;
- The establishment, modification, waiver, or elimination of spousal support;
- The making of a will, trust, or another arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter, including their personal rights and obligations, is not in violation of either the public policy of Florida or a law imposing a criminal penalty.
It’s important to note, however, that a child’s right to child support may not be adversely affected by a prenuptial agreement.
Can the prenuptial agreement be changed or revoked?
After marriage, a prenuptial agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties.
When is a prenuptial agreement unenforceable?
If a prenuptial agreement is not executed in a matter as required by Florida Law (example: only one party signed), it may be rendered unenforceable.
There are other situations that may cause a prenuptial agreement to be unenforceable. Here are some examples of situations that may render a prenup unenforceable, assuming that the party against whom enforcement is sought proves his or her case:
- The party did not execute the agreement voluntarily;
- The agreement was the product of fraud, duress, coercion, or overreaching; or
- 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; 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.
Prenuptial agreements require careful drafting and require an understanding of the law in order to ensure its validity. We strongly recommend that you seek the advice of a competent attorney to further explain your rights and what can and cannot be included in a prenup.
The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.
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