Marriage is a big commitment from both parties involved. It costs money to get married. It can cost a lot more money if the marriage ends in divorce without the proper protections in place. Prenuptial agreements were created to help people protect their assets in marriage. Many people believe prenups are only useful for wealthy people. However, the truth is that all married couples can benefit from these agreements. They cover many topics and types of assets and prevent people from losing everything in the event of a divorce.
What Prenuptial Agreements Are
In Florida, prenuptial agreements are legally binding documents between couples about to marry. These documents cover how property will be divided in the event of a divorce, as well as alimony. Prenuptial agreements can also cover what happens in the event of a spouse’s death. Some agreements cover incapacity, student debt, estate planning, and spousal support as well. Some specific examples of issues that can be covered by a prenup include:
- How property is divided in the event of death, divorce, or other predetermined life change
- Who will pay alimony in the event of a divorce
- The amount the alimony payments will be and how long they’ll be paid for
- Who will receive money from a life insurance policy if one spouse dies
- Who will receive money from each spouse’s pensions or retirement plans in the event of their death
What Florida Prenups Cover
Many things can be included in a prenuptial agreement. Most people opt to have the following elements covered in their agreements:
- Differentiating individual and marital property: Property and assets owned before the marriage can be protected by a prenup. A prenup can formally separate property that belongs to one spouse from property that belongs to both. The spouse who does not own the property would not be able to fight for it in court in the event of a divorce.
- Protection from individual debts: A prenuptial agreements is a good idea for couples with individual debt incurred prior to the marriage. Creditors may be able to go after both spouses for one spouse’s debt if this protection is not in place.
- Protecting family members: Money that is intended to be used for an inheritance and items that are considered family heirlooms can be included in a prenuptial agreement. These items will not be subject to equal distribution in the event of a divorce and will be able to go to the intended parties instead.
- Spousal responsibilities: Prenups have the power to outline the financial responsibilities of each spouse. This helps avoid confusion after the marriage and prevents one spouse from becoming financially responsible for more than they can reasonably handle.
- Waiving alimony rights: People in Florida can waive their ability to receive alimony payments through prenuptial agreements. This is beneficial when one spouse is significantly wealthier than the other.
What Can’t Be Included in a Florida Prenup
Although prenuptial agreements are beneficial for protecting a number of assets, there are certain provisions that cannot be included in them. These rules exist to protect vulnerable spouses and to keep prenuptial agreements lawful. Some examples of elements that cannot be included in a prenuptial agreement include:
- Anything that violates the law: Illegal requests made in a prenuptial agreement will cause the agreement to be invalidated by the courts. An experienced prenuptial agreement attorney can help develop an agreement that is both lawful and effective.
- Child custody and child support decisions: Child custody and any related elements, such as time sharing, child support, and decisions about how a child will be raised, cannot be included in a prenup. These are provisions that parents need to seek through the courts in the event of a divorce. The court will help make such decisions based on what they consider to be in the best interests of the child.
- Alimony payment waivers in certain situations: A person can waive their right to alimony payments in Florida prenups, but only in certain circumstances. They cannot be honored by a judge if the person who waived their right in the prenup becomes dependent on the state. They also can’t be honored if it is discovered the spouse waived their right because they were forced to by the other spouse.
- Rules about the relationship: Prenuptial agreements are not intended to determine how spouses should behave outside of finances. Prenups cannot include stipulations about a spouse’s behavior or responsibilities if they do not pertain to money.
Can Prenuptial Agreements Be Challenged in Court?
Most prenuptial agreements are created with assistance from a legal professional. That makes them difficult to challenge in court, because a legal professional will work to ensure they are irrefutable. However, a prenuptial agreement might not be recognized by the courts if certain elements can be proven.
Prenuptial agreements can only hold up if each spouse lists their assets and debts accurately and completely. An agreement can be invalidated if it is discovered that a spouse was dishonest about their finances when creating it. A prenup can only be considered fair if each spouse agreed to it with a full understanding of what they would be able to inherit without it. However, it is possible for a prenup to include a provision that waives the right to a full disclosure of each spouse’s assets.
A prenuptial agreement will not hold up in court if it is discovered a spouse signed the agreement under immense pressure. A signature that was forced by one spouse due to threats from the other spouse is not legally sound.
Lack of Time
Each spouse must be given ample time to review a prenuptial agreement in order for it to be considered valid in court. The validity of a prenup will be even stronger if it is reviewed with the assistance of an experienced legal professional. A prenup that was given to and signed by a spouse right before the wedding will likely fail in a court of law.
The provisions in a prenuptial agreement must be reasonably fair to each spouse. An agreement that is heavily one sided and leaves one spouse with many more assets than the other might not be considered valid.
A prenuptial agreement can be invalidated by the courts if the spouses who created it do not follow the provisions it presents. For example, if a prenuptial agreement states that the spouses will maintain separate finances, it will likely be invalidated if they combine their money into one bank account.
Get Assistance with Your Prenup
The Law Office of Russel S. Hershkowitz, LLC can help you develop a prenuptial agreement that will hold up in court and keep you and your spouse happy and protected. Experienced legal counsel is crucial when creating a prenuptial agreement. Attorney Hershkowitz has over 25 years of family law experience and can help you prepare for your marriage with a fair and reasonable agreement. Contact us at (407) 753-4111 or online for a free consultation.