Prenuptial Agreements in Florida

A Prenuptial Agreement, also referred to as a “Prenup” is a private, written contract entered into by a couple before they get married. While some people often think of Prenuptial Agreements are only for the wealthy or for second marriages, they are practical tools used by couples of all financial backgrounds to establish clear expectations and protect each person’s individual future in case of a Divorce.

A Prenup can act as a financial roadmap. It outlines how assets, debts, and financial responsibilities will be handled during the marriage, and how they would be divided if the marriage ends in divorce.

Florida’s Prenuptial Agreements are codified by Law/Statute and as such Courts generally enforce them when they are properly drafted.

Things you can Expect your Prenuptial Agreement to Include:

1. Premarital assets. Assets and investments you owned before the marriage
2. Business interests. Business or professional practice you want to remain yours in the event of divorce
3. Retirement accounts. To be outlined, including how 401(k)s, IRAs, pensions, will be handled
4. Debts and liabilities. Often Protecting you from responsibility for debts your spouse accumulated before the marriage
5. Alimony terms. Specifying whether either spouse will receive spousal support, setting limits on the amount or duration

An Important Note on Alimony Waivers: Florida law allows alimony to be waived in a Prenup, but if enforcing that waiver at the time of divorce would leave a spouse destitute and eligible for public assistance, a Court can override it and order a minimum level of support regardless of what the agreement says, so this is often not recommended. An experienced Lawyer like Melissa Waldinger, can discuss the pros and cons of waiving Alimony with you during the drafting phases of your Prenuptial Agreement.

What Makes a Florida Prenuptial Agreement Valid?

1. It must be voluntary Neither party can be pressured, threatened, or coerced into signing. A prenup presented days before the wedding signed under emotional pressure, or it gives the other party strong grounds to challenge it later. Ideally, the agreement should be finalized at least thirty (30) days before the wedding date. It can be a shorter window, but the recommendation is the thirty (30) day window.

2. Full and fair financial disclosure Both parties must honestly and completely disclose all assets, income, and debts, in writing. Failure to do so, can be one of the most common reasons Prenups are invalidated in Court.

3. The Agreement cannot be grossly unfair The Prenup cannot be unconscionable at the time it is signed. The Agreement cannot leave one spouse with nothing while the other retains everything. While not legally required, it is strongly recommended that each party retain their attorney to review the Prenup before signing. If the same attorney drafts the agreement for both people, a Court is far more likely to question its fairness later.

Can a Prenup Be Challenged in Court?

Yes, it can and it does happen. The most common grounds for challenging a Prenuptial Agreement we see are the following:

1. Incomplete or dishonest financial disclosure by one party
2. Procedural problems such as missing signatures, no notarization, or lack of independent counsel
3. Terms that were unfair at the time of signing

This is why the drafting process is as important as the content. A Prenup that is thorough, transparent, and properly signed is far more likely to be enforced by the Court.

A Topic of Great Importance-Prenuptial Agreements and Second Marriages

Prenuptial agreements are common, and especially important for couples entering a second marriage, as the Agreement can ensure that specific assets are preserved for the future as well as for those children, that may be from a prior marriage, regardless of what happens in the new marriage.

Frequently Asked Question: Does a Prenup Expire?

Not necessarily. The Sunset Clause: Some couples include a Sunset Clause; this is a provision that causes all or part of the agreement to expire after a set number of years or upon a specific event. A Prenuptial Agreement otherwise remains in effect for the duration of the marriage unless it is modified or revoked. Whether a Sunset Clause makes sense for your situation is worth discussing with Melissa before drafting.

What Is a Postnuptial Agreement?

If you are already married and want to update your Prenuptial Agreement or create one when married that is called a Postnuptial Agreement. It follows the same general legal rules as a Prenup and can address many of the same issues. Common reasons couples draft Postnuptial Agreements include a significant change in finances, the start of a business, an inheritance received during the marriage or simply wanting clarity that was not established before the wedding.

Why Hire Melissa Waldinger for Your Prenuptial Agreement or Postnuptial Agreement

A Prenuptial agreement is only as strong as the process used to create it. Melissa Waldinger has practiced Florida family law since 2001 and has extensive experience drafting, reviewing, and when necessary challenging Prenuptial and Postnuptial Agreements. She represents both the party proposing the Prenup and the party being asked to sign one.

She serves clients throughout Boca Raton, Fort Lauderdale, and Fort Myers, and provides direct, personal attention to every client.