Pre-Marital Agreements

Also commonly referred to as a "prenup" or prenuptial agreement, a pre-marital agreement is an agreement that both parties enter into prior to a marriage, a lawful agreement that goes into effect upon the marriage of prospective spouses. Prenuptial agreements are often put in place for other reasons outside of assets, including a possible inheritance, alimony, wills/trusts, etc.

In Florida, how marital property, assets, and debits will be distributed in the event of a divorce is determined by the courts, according to what is equitable to the divorcing spouses' situation. However, when a pre-marital agreement is in place, the wishes of the divorcing spouses set forth in the agreement will override state laws regarding equitable distribution. Our pre-marital agreements lawyers can help you understand how these agreements work if you are considering marriage, or if you are divorcing and have issues with a prenup agreement.

In the event of divorce, a pre-marital agreement may not be enforced when a spouse whom enforcement is sought against can prove that:

• He or she did not voluntarily execute the agreement
• The prenuptial agreement was a result of coercion, duress, fraud, overreaching; or
• At the time it was executed, the pre-marital agreement was unconscionable and, prior to the agreement being executed, the spouse was not provided proper disclosure (reasonable and fair) of the financial obligations or property of the other spouse
• He or she did not, in writing, expressly and voluntarily waive any right to disclosure of the financial obligations or property of the other spouse other than the disclosure provided; and
• Could not reasonably have had or did not have sufficient knowledge of the financial obligations or property of the other spouse.

A pre-marital agreement may be changed when a couple divorces, but may only be revoked, abandoned, or amended when both spouses sign a written agreement regarding the change.

Pre-marital agreements often help prospective spouses avoid future liabilities, should the couple divorce. Because it is an agreement or contract, a prenup agreement typically specifies the objectives of the spouse who wants to enter into the agreement, and includes such objectives as:

• Protection of a professional practice, from debts incurred by the other spouse, a family business, etc.
• Defining ownership of income earned or acquired assets during the marriage
• Protection of wealth, property, or assets which were acquired by one spouse prior to the marriage, and the potential increase in value of that wealth, property, or asset
• Waiver, elimination, establishment, or modification of alimony or spousal support

Essentially, a pre-marital agreement can cover one or two issues, or dozens. These agreements can address whatever issues a spouse feels is necessary to protect his or her interests should the couple divorce. The one area that cannot be addressed in a prenuptial agreement regards the couple's children, and issues including time-sharing rights or child support.

When is it a good idea to draw up a pre-marital agreement?

Pre-marital agreements are not necessary in every situation, but are very efficient in some situations. For example:

• If a future spouse has considerable debt, a pre-marital agreement can help protect the other person from becoming liable for that debt.
• If you have a business that you established prior to marriage, an agreement may be used to declare the business's increase in value during the course of the marriage as a non-marital asset.
• When both spouses have grown children from prior marriages and are each financially secure having investments, brokerage accounts, or IRA's in place, they may wish to enter into an agreement so that each spouse's own biological children receive their assets in the event of death or divorce.

Both prospective spouses must fully disclose his or her assets and debts and voluntarily sign a pre-marital agreement in order for it to be enforceable in the state of Florida.

Whether you are considering a pre-marital agreement prior to marriage, or have issues regarding an agreement you and your spouse entered into at the time of your marriage and are now divorcing, we can help. These types of agreements are not designed for the rich and wealthy, but for those who have substantial assets, have been married previously and have children, or who own a family business. At Adams, Luka, & Benton, our pre-marital agreements attorneys will help guide and educate you regarding these types of agreements, always focusing on the best results for our clients. Residents in Central Florida should call us today at 407-872-0303 or 352-357-4084.