By Steve Walden, Attorney at Law
Florida Pre-Marital Agreements
I get a lot of questions about premarital agreements, better known as “prenuptial agreements.” Most often the specific question is, “Do I need one?” I usually respond with, “It depends. I need more information.”
A premarital agreement is a written agreement (a contract) between two individuals that intend to be married at some point in the near future. These agreements can address ownership of assets, alimony, contents of wills, future income, retirement benefits, life insurance proceeds, and payments of debts. The purpose of a premarital agreement is to give some certainty to how future martial property (property acquired during the marriage), as well as non-marital property (property owned prior to the marriage or acquired through inheritance) will be treated in the event of divorce or death of a party. While no one enters a marriage with the intention to later divorce, it is a sound idea to have a plan if that should ever occur.
As stated above, a premarital agreement must be written to be valid. It must also be signed by both of the parties and notarized. There must also be some connection to the state of Florida, such as one of the parties is a Florida resident or some property listed in the agreement is located in Florida.
Before entering into a premarital agreement, both parties must complete an inventory of his or her real property, tangible assets, accounts, liabilities and debts, which is disclosed to the other party. In the event of divorce, a court may find a marital agreement invalid or unenforceable if a party failed to fully and accurately disclose their assets before entering the agreement. A court also may invalidate the agreement if one of the parties signed the agreement under duress. Therefore, the agreement must be voluntarily entered after a full disclosure of all assets and debts.
Some parties include in their premarital agreements penalties for a party that commits adultery, abuses drugs, or wastes money on gambling or other addictions. Examples include agreed alimony payments (or alimony waiver) upon proof, or rights to remain in a non-marital residence during separation or post-divorce.
Although parties are generally free to plan ahead regarding payment of alimony or disposition of future marital property, they cannot violate public policy by agreement. For instance, a premarital agreement cannot adversely affect a child’s right to receive child support by including a waiver.
A valid premarital agreement does not become unenforceable just because it favors one side over the other, so long as the terms are reasonable. The determination of reasonableness is based on the time the agreement is entered, not when it is enforced. Because of this, each party is encouraged to obtain advice from his or her own attorney in order to protect their rights.
After the agreement is signed, it is not effective until the parties get married.
Once the parties are married, they may agree to revoke or abandon the premarital agreement. There can be many reasons a couple may do this, to include unanticipated changes in their finances, later-born children, or they simply choose not to be bound by the old agreement. To effectively revoke the agreement, the parties must sign an agreement to revoke.
So, to return to that question of whether my client should have a prenuptial agreement, I typically advise that he or she should, especially if the future spouse is open to the idea. For some, the discussion of premarital agreements is taboo or treated as acceptance of divorce. It is always my wish that the premarital agreements that I draft, or advise my client regarding, remain unused and long forgotten during a successful marriage. But, having a premarital agreement that was carefully planned after a full disclosure gives each party certainty in their post-separation or divorce rights and, with hope, a peaceful dissolution of the marriage should it be necessary.
Steve Walden, Attorney at Law
The Carlson Law Firm
333 3rd Ave. N, Suite 220
St. Petersburg, FL 33701
(727) 373-4655
swalden@carlsonattorneys.com