Florida Prenuptial Agreements: What You Need To Know

What is a prenuptial agreement?

A prenuptial agreement is a contract between prospective spouses made in contemplation of marriage. These agreements have become more popular as marriages are taking place later in life and there has been downtrend in second and third marriages with children and a need to protect assets is more common and necessary. A prenuptial agreement will not automatically be enforced if challenged , except in the most basic of agreements, such as a waiver of spousal support or an ability to make claims against the estate or assets to be created by one of the spouses after the date of marriage. A prenuptial agreement must be entered into voluntarily; it cannot abrogate a spouse’s right to support; it cannot contain unconscionable provisions; and it cannot be entered into on the eve of marriage or under duress.

Requirements for valid prenuptial agreements in Florida

The legal requirements of a prenuptial agreement or pre-marital agreement in Florida are found in Florida Statute 61.079. This statute requires that prenuptial agreements be in writing and signed by both parties. It further provides that either party may file a petition with the Court seeking a determination as to the enforceability of the agreement. When a party petitions the court seeking a ruling as to the enforceability of the prenuptial agreement, the court applies the same standards that apply to contracts generally.
In addition to considering the normal contract defenses, the statute also lists several factors which the Court must consider when addressing the enforceability of the agreement. For purposes of this article, "spousal support" refers to all traditional forms of spousal support including alimony and spousal support awarded during the marriage.

• Legitimacy of the marriage. The statute first states that there must be a legitimate marriage before the prenuptial agreement can be held enforceable. In other words, the prenuptial agreement will not be held enforceable when the marriage is shown to be invalid for some reason (fraud, duress, bigamy, etc.).
• Time for review. The pre-marital agreement (a.k.a. prenuptial agreement) must be presented to the party against whom enforcement is sought not less than ten days before the earlier of: 1) the date the marriage is to occur, or 2) the date the marriage is to occur if the marriage is to occur within 30 days after the agreement is signed. The statute further provides that the party against whom the agreement is to be enforced has the right to have the agreement reviewed by legal counsel.
• Income disclosure. The pre-marital agreement cannot be held enforceable unless there is evidence that both parties had a fair and reasonable disclosure of the property or financial obligations of each party. Alternatively, the pre-marital agreement may not be enforced unless the party against whom enforcement is sought "waived any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided by the other party." The obligation of full and fair disclosure does not require the exchange of a photograph or appraisal of the value of the property. It is sufficient to provide a description of the property.
• Undue influence. The terms of the contract must not be unconscionable at the time of execution. In other words, the terms must be fair to both parties.
• Representation by counsel. The party against whom the agreement is being enforced must either have been represented by legal counsel during the negotiation of the agreement or have voluntarily waived the opportunity to have counsel (see all reference to "waiver" above).

It is beyond the scope of this article to address whether or not the Court will enforce a prenuptial agreement that was not entered into as a result of fraud, duress, misrepresentation or an undue influence. I will address this issue in another post.

Advantages of prenuptial agreements

A prenuptial agreement in Florida, unlike some other states, is not a prerequisite to marriage. When happy couples decide to walk down the aisle, they are generally so excited that they don’t think much about what might happen if (gasp!) things don’t go as planned. To make sure this doesn’t happen to you, consider the many potential benefits of a prenuptial agreement, otherwise known as a premarital agreement.
Asset Protection: When crafting the terms of a prenuptial agreement, spouses define which assets and debts will be considered separate property and which assets and debts will be classified as marital property. Different property classification types come with different rights and obligations upon divorce, so it’s important for spouses to agree on these classifications before getting married.
Debt Responsibility: A prenuptial agreement also provides financial protection against debt. If a spouse comes to the marriage with significant amounts of debt, and the debt isn’t addressed in the terms of the prenuptial agreement, the other spouse may suffer the consequences as that debt gets transferred to his or her responsibility during the marriage. An attorney can help you and your spouse determine which debts should be carried by which spouse.
Clarity: The clearest example of this scenario is when one spouse is a business owner or has a family business. If the family business comprises a large portion of that spouse’s separate assets, the prenuptial agreement can be drafted so that the family business remains the separate, untouchable property of that spouse (or the business owner’s family) after the marriage concludes.
As with any type of contract, there are some drawbacks to a prenuptial agreement. But if you and your spouse come out of a careful negotiation with a contract that expresses the desires of both parties, you will likely view it as a positive step forward that ultimately protects the interests of both spouses.

Common myths about prenuptial agreements

Given the subject matter, it is understandable that many individuals considering prenuptial agreements have preconceived notions about these documents. One popular misconception is that all premarital agreements are one-sided and show a lack of trust. This statement is broadly incorrect. An agreement outlining how marital and separate assets will be handled can be an expression of mutual respect and care. Many states, including Florida, have requirements mandating adequate disclosure of assets by both parties prior to signing a prenuptial agreement. In addition to this full and fair disclosure, parties can provide for any issues such as spousal support, alimony, and custody of children in their agreement, providing both parties with a good sense of what a divorce would entail as it relates to these issues. Another misconception that needs to be dispelled regarding prenuptial agreements is that the concept is unfair and for wealthy people looking to protect their money. The reality is that prenuptial agreements can be a cost-effective way of protecting assets, particularly if you are remarrying after a divorce or you have children from a previous relationship. It is often cheaper to have a prenuptial agreement than to have drawn out litigation over who will receive which assets. While there may still be some risk of a spouse contesting the validity of a prenuptial agreement, Florida courts generally uphold them as long as certain requirements have been met. It is important to note that these requirements have evolved over time. Factors like an absence of duress or fraud are now the norm in these agreements and are not always enough to allow for the agreement to be enforceable. Courts also consider whether the agreement was unconscionable, defined as significantly unfair to a spouse who did not have independent counsel during the drafting of the agreement.

How to create a prenuptial agreement

Though the word "requirement" is used, a prenuptial agreement is not actually a requirement for engaged couples in Florida. In fact, there’s no law in Florida that says your intended must have such an agreement prior to the marriage. Instead, if you want a prenuptial agreement, the requirement is that both you and your intended must comply with specific steps to create the document. The first step is that you must consult with an attorney. This doesn’t mean that your intended must have an attorney. He/she may not be interested in having an agreement, but you have to consult with one regardless. Next, the attorney needs to draft the agreement generally, based upon the information you provide. This process involves full financial disclosure . The terms of the prenuptial agreement should be negotiated between you and your intended and reflected in the document.
You should also not sign the agreement until (at the very least) the day before your wedding. In fact, you should carefully consider allowing for a minimum of two weeks between the time the agreement is signed and the time of the wedding. This is because courts must have the ability to look at the circumstances of the prenuptial agreement, and if it’s too close to the wedding, then it may prevent that from happening. Finally, before you sign, you should make sure that the agreement complies with one of the ways a prenuptial agreement is enforceable (the following examples are, in fact, the different ways a prenuptial agreement may be enforceable):

Challenges to enforcement of prenuptial agreements in Florida

In Florida, prenuptial agreements are generally enforceable, but there are specific circumstances under which a court may find them unenforceable. Situations may include when an individual signed the agreement under undue influence, duress, or coercion, or when the agreement is the product of fraud (e.g., when one spouse conceals debts or assets).
Florida Statute § 61.079 sets forth the general requirements for martial agreements, which, in this context, has been interpreted as including prenuptial agreements. According to the statute, one party to the agreement must be represented by independent legal counsel before executing the martial agreement. Failure to meet this requirement does not render the agreement invalid if the provisions of the agreement are fair and equitable.
Further, and significantly in any prenuptial agreement contest, Florida Statute § 61.079(8) states: A martial agreement is not enforceable unless each party is provided a reasonable opportunity to review the agreement before it is signed and, in an action to enforce the martial agreement, the court may not consider the terms of the marital agreement to be fair and reasonable unless the court makes the factual determination that each party was given a reasonable opportunity to obtain and did not obtain independent legal counsel.
Thus, when a party argues that the prenuptial agreement is unenforceable because the agreement was not voluntary when it was executed, that party is required to demonstrate that his or her spouse was not given "a reasonable opportunity to review the agreement." The Florida courts are not overly concerned with whether the party actually hired an attorney for the review. Instead, the focus of the inquiry will be on whether that party was given information about the agreement or whether he or she knew that there had been no legal review before execution.

Prenuptial vs. postnuptual agreements

Spouses may enter into both prenuptial and postnuptial agreements, although the two have different functions. When beginning a marriage, a prenuptial agreement offers both parties a chance to address financial matters. These contracts identify both separate and joint property while also describing the specific process for dividing property after the marital relationship has ended. While a prenuptial agreement may be more attractive for the parties entering into a marriage with prominent assets or property, the issues involving property division still enter into the picture if a couple does not enter into this type of contract. Some spouses, realizing that they need to address property matters , may enter into a postnuptial agreement.
A postnuptial agreement is very similar to a prenuptial contract, and it comes into play when the marital relationship is still occurring, but spouses want to take care of property matters in the event that the relationship terminates. Many times, these issues arise when a spouse obtains a substantial inheritance or is promoted at work. Other couples may realize that having this type of contract makes sense based on their property. Regardless of the property type, these contracts offer the same type of protection that prenuptial agreements do regarding the specifics of the property division process. Typically, however, the timing of the contract is the only difference.