A prenuptial agreement is a contract made between future spouses in anticipation of marriage. The contract controls what will happen in the event of death of either spouse or a divorce. Prenuptial agreements are especially important to consider if there is a significant difference in the income and earning capacity of the future spouses. The Uniform Prenuptial Agreement Act (UPAA) lays out rules to help courts determine whether a prenuptial agreement is enforceable in Florida.

What can be covered in a Prenuptial Agreement?

A prenuptial agreement can include any of the following:

• Waivers of alimony

• Protections for separate property assets 

• Protections for inheritances 

• Protections or limitations on the appreciation of marital assets, including retirement plans or pensions

• Waivers of death benefits

• Protections against homestead and spousal rights in the event of divorce

• Limitations on or waiver of attorney fees in the event of divorce. 

• Whether to keep income/assets separate property assets so nothing will be deemed a marital asset after the date of marriage  

What cannot be covered in a Prenuptial Agreement?   

There are several issues that cannot be set forth in a prenuptial agreement. In Florida child custody and child support cannot be factored into a prenuptial agreement. Florida law functions on the basis that child custody belongs to the child and not the parent, therefore the parent cannot “bargain away” their support in prenuptial agreement. Such determinations are ultimately based on the “best interests of the child,” the main basis for any legal case that involves a child. Any matter that has to do with a child must be determined at the time of separation or divorce, often with judicial approval.

Are Prenuptial Agreements Enforceable?

A prenuptial agreement is not enforceable where a spouse can prove:

• The document was not properly executed

• The document is not in compliance with Florida law

• The agreement was executed too close to the marriage date

• The parties did not execute the agreement voluntarily

• the agreement was procured by fraud, duress, or coercion

• one spouse failed to make a full disclosure of their assets

• the agreement was unconscionable when the couple signed it, and the spouse challenging the agreement:

  • was not given a fair and reasonable disclosure of the other spouse’s financial circumstances

  • did not waive in writing the right to receive a fair disclosure of the other spouse’s assets and debts, and

  • did not have or could not reasonably have had knowledge of the other spouse’s financial circumstances.

  • One spouse did not understand the terms of the agreement

A post-nuptial agreement can be entered into after the parties are married. It seeks to accomplish the same results as a prenuptial agreement and can set forth what the spouses intend to do if the marriage should end in divorce, laying out terms for the distribution of assets and any alimony or waiver of alimony.  The post-nuptial agreement cannot determine child custody matters, visitation or child support.

Both prenuptial and post-nuptial agreements require a full financial disclosure by each party. Prenuptial and post-nuptial agreements act as “insurance” if the marriage breaks down. the agreement allows the parties to make their own decisions regarding what will happen in the event of divorce, while they are in a loving and rational headspace and rather than having a court decide the outcome.

Contact Cody Law to discuss the possibility of a prenuptial or post-nuptial agreement for you and your spouse.