Prenuptial Agreements, also called “Premarital Agreements” (signed prior to the marriage) and Postnuptial Agreement (signed after the marriage) in Florida, are contracts between two persons who are contemplating marriage or are already married that sets forth the rights and obligations of each party in the event of death or divorce, as well as during the marriage. To be valid, it needs to comply with the statute of Frauds, meaning it needs to be in writing, and signed by both parties.

There are many reasons get a prenuptial Agreement. A prenuptial or postnuptial agreement determines how certain issues such as alimony and property division are to be made in case of divorce. It serves to protect assets from division. A common example occurs when a party that has children from a previous marriage try to protect his or her children’s inheritance. Inheritance is usual considered a non-marital asset and won’t be part of an equitable distribution if kept separate.

The premarital agreement also defines the distribution and inheritance rights and entitlement of each party by delineating whether one spouse will or will not pay alimony in the event of divorce.  When a spouse waives alimony, it is necessary to be aware that Florida law provides that is alimony is completely eliminated, the Court may still order alimony if the spouse qualifies for public assistance or becomes a ward of the Government.

While alimony can be addressed, there are certain subjects that cannot be addressed in the prenuptial agreement, like child support. The right to child support belongs to the child, and parents can’t bargain away their obligation to pay it.

In Florida, a prenuptial agreement must comply with all the formalities of the Uniform Premarital Agreement Act (UPAA) to be enforceable.   Click this link to Florida Statute 61.079 (UPAA) For example:

• Each Prenuptial Agreement must be in writing and signed by both spouses to be enforceable. Since the agreement is a trade of marriage for the terms in the contract, the agreement takes effect when the couple marries.
• The parties must make a full and fair financial disclosure of the nature, extent and value of the assets and liabilities that each party holds.

According to UPPA, a prenuptial agreement can be challenged and deemed unenforceable if a spouse can prove that he or she did not sign the agreement voluntarily; the agreement was signed because of fraud, duress, or coercion, or; the agreement was unconscionable when signed, and the spouse challenging the agreement:

• Was not given a fair and reasonable disclosure of the property or financial obligations of the other party,
• 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
• Did not have or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

In general, unless the parties agree otherwise, assets and liabilities acquired during a marriage will be equitably distributed in Florida at the time of divorce. Such assets are called marital assets and include even retirement and pension plans like 401K accounts. If you want to avoid such distribution, call the SIMOES LAW, P.L.L.C. to schedule an appointment to discuss the preparation and negotiation of either a Prenuptial Agreement or Postnuptial Agreement based upon the unique facts of your case.