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A prenuptial agreement or prenup, is a written agreement or contract signed by parties who intend to get married. A prenup may also be referred to as an "antenuptial agreement". Sometimes parties sign the same type of agreement during the marriage. In that event it may be referred to as a "post nup". (You can assume that when this article refers to a "prenup", that the same rules apply for "post nups")
Is it a good idea to just download a prenup form from the internet or have an unqualifed person prepare it for you? Probably not. Lawyers know how to state things properly such that the prenup will 1) be less likely to be successfully challenged, and 2) state the intentions of the parties clearly, and lead to the results that you want from the prenup. And a lawyer is likely to raise issues that you may not have realized that you want in a prenup. (or tell you why your ideas may or may not benefit you) Words matter; if you state things improperly in a prenup, you could be very unhappy with how the divorce judge rules on the terms of the prenup and its enforceability. No matter where you live in Florida, call Attorney Gruskin at 1-800-PRENUPS if you wish to discuss preparation of, and issues pertaining to a prenup. Or click here to Email Your Florida Prenup or Postnup Questions.
Prenups and postnups are a good investment. Typically, a Florida prenup predefines what will occur upon divorce with regard to issues such as division of property and debt, and alimony or spousal support. So they can save you the cost of an expensive court battle. And a Florida prenup or postnup is like insurance. No one likes to pay for it, but they're glad they have it when there's a fire. Usually what a party will get or not get under a prenup in the event of divorce, is far different than what a judge would order upon divorce if there were no prenup.
Sometimes a Florida prenup will provide that neither party will get alimony, no matter how long the marriage is. Or it may provide that a party will not get property or assets which they might otherwise get if there were no prenup. (such as the income from their spouse's non-marital asset which they might otherwise get in certain circumstances) So a prenuptial agreement can help a party avoid paying alimony or splitting property. Or it can hurt a party who, if there were no prenup, would be entitled to alimony under the law because of the length of the marriage for example. (or entitled to property under the law) Note that a prenup could also provide that a party would not be eligible to request alimony in a divorve unless the marriage had lasted for a certain number of years.
A Florida prenuptial agreement is often used to prevent a spouse from getting a portion of the increase in value that may occur during the marriage concerning their spouse's pre-marital or non marital assets. For example, a spouse may own a home prior to the marriage. Under certain circumstances where there is no prenup, if that home goes up in value during the marriage, the other party may be entitled to a portion of the increase in value that occurred during the marriage. The appropriate language in a prenup can foreclose the possibility that the spouse will share in the increase in value.
Similarly, unless a prenup states to the contrary, a party who saves up money during the marriage from employment, in a bank account just in their name, will have to share those funds with their spouse upon divorce. (because the funds are considered a marital asset) The same principle applies if a party uses their salary during the marriage to purchase for example a car just in their name. A prenup can preclude the spouse being awarded one half of the value of the car.
Major battles are often fought over prenups in Florida divorce courts. The party who feels that they're getting a bad deal because of the Florida prenup may try and have it invalidated by saying for example, that they were coerced into signing it. Or, they may say that the other party didn't accurately divulge their assets.( i.e. that they would not have signed the prenup if they knew how much money the other party really had) Prenups can sometimes be upheld as valid in Florida even if they were made in another state.
Prenups cannot be overturned just because they are a bad deal for someone. (unless the other party didn't make full financial disclosure of their assets and financial condition. A party can however voluntarily and expressly waive in writing any right to disclosure. (except that in a postnuptial situation, for a waiver of spousal rights to stand, there must be full financial disclosure. Spousal rights are very important rights and include elective share, homestead, family allowances and intestate share etc.) Note that even if there was no disclosure, that if the party knew, or reasonably could have known the financial condition of the other party, that the result will be the same as if the party who should have disclosed did disclose.)
In this regard each party needs to provide the other party with their notarized Florida financial affidavit a sufficient time before the signing of the prenup. This is so that the other side has time to review it and investigate further if they wish. A party should retain proof that they provided the other side with the affidavit.The parties will list in their respective financial affidavit their income, expenses, liablities and assets. A party should take great care in preparing their affidavit, especially regarding the listing of income and assets ) The two notarized financial affidavits should be attached to the prenup, and referenced therein.
Bare in mind that a prenup is a roadblock to your spouse getting what you don't want to give them. If properly drawn up by a Florida attorney who thoroughly understands the complexities of a prenup, and if the circumstances of the execution of the prenup cannot be challenged, the prenup stands a much better chance of not being successfully attacked. And if you have a prenup, don't wait too long to enforce your rights under it. As per Florida statute, there may be a deadline for doing so.
Often, Florida prenups are non-modifiable. So for example if a party is working at a good job when they sign a prenup that waives their right to claim alimony, they will still get no alimony if at the time of the divorce they are unable to work because of a disability. About the only rights that can't be waived in a prenup is the right to seek child-support if a child is born during the marriage. Also, a party cannot waive the right to seek attorney fees and temporary alimony in the Florida divorce from the other party. (so for example a spouse can always ask to be awarded alimony payable while the divorce case is going on)
So if you are considering presenting a Florida pre-nuptial agreement to your fiance, it is best to do it a sufficient period of time before the wedding . That will give the other side sufficient time to contemplate the terms of the prenup and try to negotiate a better deal if they care to. It will also allow for the opportunity to secure a lawyer. It may also be a good idea to offer the other side money for a lawyer of their own choosing if they cannot afford one.That will foreclose the argument that they could not get an attorney to help them understand the prenuptial agreement and negotiate on their behalf. You should email your fiance this offer, make sure that you get an email response so you can prove it was sent, and then save a copy of your email and their response.
You also don't want to give the other party the prenup a very short time before the wedding for another reason. If their is a divorce where your spouse wants to challenge the prenup, they may argue that it was given to them such a short time before the wedding that practically speaking they had to sign it and that they were under duress and in effect coerced into signing. (ie they will say that their spouse said or suggested that if they didn't sign, the marriage would be called off. And of course this could be very embarrasing for a spouse who has all of their friends coming to their elaborate wedding shorlty) Doing things properly may stop the other side from successfully challenging the validity of the prenup upon divorce.
Note that depending on the language of the prenup, it could be problematic if you were to allow your spouse to contribute during the marriage to one of your separate assets, or allow your spouse to utilize any of your separate assets , such as by letting them withdraw money on a regular basis from one of your separate non-marital accounts. You run the risk that your spouse will claim that those assets became marital (and divisible 50%-50%) because of what you permitted. Also note that as a general proposition, if you put an asset or account into both your name and your spouse's name, either before or during the marriage, or commingle your non marital assets with marital assets, that you run the risk that your non marital assets will be split 50-50 upon divorce.
Of course you always have the opportunity during the marriage to consult with an attorney about the advisability of something that you are planning to do regarding your separate accounts and assets, or regarding the acquisition of an asset. Additionally note that there may be tax and estate planning, probate or other ramifications of the prenup which you may want to discuss with a tax or estate planning or probate lawyer, or accountant, before you sign the prenup.
Lastly, a prenup can provide that a party waives certain rights that they would otherwise have upon the death of the other party. (those rights may include the elective share, which is the right to receive thirty percent of the estate of the other party, and homestead rights which gives certain rights in the family home upon the death of the other party)In this regard the prenup (or post nup) must be executed in a particular fashion or their could be problems.
It may also be a very good idea to have a professional video taping of the other party signing the agreement. The goal would be to have proof that it was signed voluntarily. Specific questions could be asked of the other party at the videotaping as to whether they were signing it voluntarily.
Also note that if you end up living somewhere else besides Florida that cannot be guaranteed that all provisions of the prenuptial/postnuptial agreement will be valid in the other state. Therefore, you may want to revise it to conform with the rules and laws of the state that you move to.
Lastly, if the other party does not read, write, speak and understand English well, the agreement should be translated word for word by a competent translator. (ie so that the other party may review it in their native language) Also, if your spouse first language is not English they may not be familiar with legal terms in the prenup such as alimony, even though they understand and read and right English. So you may consider getting an interpreter to translate the prenup into a written document in the other parties' native tongue.
And note that unless the prenup says otherwise, waiver of a particular right by the other party means that you will be waving the same right.
No matter where you live in Florida Attorney Arnie Gruskin will be happy to discuss with you preparation of and issues pertaining to a Florida prenuptial agreement. Call 1-800-PRENUPS for assistance. Or click here to Email Your Florida Prenup Questions