What is a Prenup in Florida?
In Florida, a prenuptial agreement is a written contract that two parties enter into before entering into a marriage. The Florida Uniform Premarital Agreement Act, found in Chapters 61 and 689 of the Florida Statutes, governs premarital agreements in Florida. In order for the agreement to be enforceable, it must be executed in writing and signed by both parties. § 61.201, Fla. Stat. (2018). Fla. Stat. § 689.005 (2018).
The purpose of a prenuptial agreement is essentially to allow the parties to contract away certain property rights , the division of wealth, and other obligations that arise in a marriage or dissolution of marriage.
Importantly, premarital agreements may not adversely affect any right to child support, and cannot limit a court’s power to eventually divide marital property at the time of divorce. § 61.201, Fla. Stat. (2018). Further, no provision in a prenuptial agreement can affect a party’s welfare benefits, insurance benefits, or Medicaid. Fla. Stat. § 689.228 (2018).
Requirements for a Florida Prenup
As specified in the Florida Statutes under Section 61.079, a prenuptial or premarital agreement is enforceable for the latter only if the following conditions are satisfied:
(a) The agreement was signed by both parties before or during the marriage;
(b) The agreement includes a statement of assets, which the signator has executed under oath to confirm; and
(c) The agreement has been entered into voluntarily by both parties.
Subsection (2) of the section gives a list of circumstances under which a prenuptial agreement or the terms thereof are not enforceable.
Subsection (3) lists situations in which consideration is not required to make an agreement enforceable. Included in this list are agreements:
(a) Which were made in anticipation of marriage and the marriage did not occur;
(b) Where one party in fraudulently induced the other to enter into the agreement;
(c) Where the agreement was not entered into voluntarily;
(d) Where the person was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; or
(e) For which the person could not have reasonably known of the property or financial obligations of the other party.
Subsection (6) specifies the legal description that must be included in a prenuptial agreement to make it enforceable. In order to meet the requirement, the prenuptial agreement must "contain a description of the real property subject to equitable distribution and outstanding obligations."
To meet the disclosure requirements, both parties must provide the other with a reasonable amount of time to review the documents before the marriage. Lawyers are also encouraged to assist in this matter prior to the marriage.
Advantages of a Florida Prenup
When we think about the benefits that a prenuptial agreement can provide we can first understand that Florida is a state that is both fair and equitable. When a judge is to divide property between parties in a divorce or some dissolution of marriage proceeding the law requires that he or she divides the property in a manner that is just and in some sense fair and equitable. However, there is little that can be more equitable and fair than to have the parties themselves decide how their assets will be divided or how the debts will be addressed if the marriage should not work out. In that regard, "self-determination" is so important. Further, the Florida courts have gone on to say in law that prenuptial agreements or "marriage contracts" are favored public policies of the state. In other words, the courts are not going to hold anything against you for having a prenuptial agreement rather they are going to "favor" them. Some of the additional benefits in having a prenuptial agreement are: you can provide for property division in the event of a death; it is very valid to pre-determine alimony provisions; you can provide for the waiver of homestead rights; further, you can waive rights to file spousal election or take an elective share. I have had clients provide for everything from who’s going to do the dishes in a divorce to where kids will go in the event of separation.
In summary, the advantages of a prenuptial agreement may provide welcome certainty to you and your partner and help manage the uncertainties of life. Once again, and although I represent clients with prenuptial agreements in court this article is not legal advice.
How to Draft a Florida Prenup
The first step in the prenup process is to have some family discussions about what your needs and desires are. What kind of assets do you have going into the marriage? You want to discuss and determine whether you want to share your assets equally or if you would prefer to keep what you bring to the union separate. What is your preference if there is a significant income difference between you and your spouse? Do you want to share any debts incurred prior to the marriage?
Generally, you need to get together your financial records and make copies. This can include tax returns, bank statements, deeds to any property you may own, information on pensions and all other necessary financial documentation. Once these documents are together, you can schedule a meeting with your family law attorney to draft the agreement. When you meet with the attorney, you will discuss your financial history, and will go over the proposed prenup. The attorney will then prepare the draft for you. Keep in mind that both you and your future spouse will have the opportunity to review the document, and decide if you want to make any changes before the final version is completed.
The finalization process begins when each party meets with their attorney (or the same attorney if that person is representing both) to execute the contract. The attorney will review the completed document, making sure that you understand the terms, and that you are not under duress while signing. Once drafted and signed, each party will retain a copy of the agreement.
Once both parties have signed the contract, at least 14 days must pass until it is valid under Florida Statute 61.079. This time period is meant as a way to allow the parties to reconsider their decision to enter into a prenuptial agreement and gives either party a chance to object or withdraw during that time.
Formats for Prenups in PDF
The availability of preloaded PDF templates that can be downloaded and filled out on your computer has made the drafting of a prenuptial agreement much easier. Just find and download a template you like, fill in the blanks, add and delete provisions as you see fit, and voila, you have a prenuptial agreement ready for you and your spouse to sign. The internet is filled with these templates for prenuptial agreements. But buyer beware! If you want an enforceable prenup , never use one of these fill in the blank templates before having it reviewed by a competent lawyer who specializes in drafting prenups.
Most of your efforts with a pre-printed form should be spent having a lawyer do the drafting and advising. Why? Because it’s virtually impossible to list all the things that should and need to be covered in a prenup. And most people have no idea what all those things are. Remember, laws vary from state to state. The agreement has to comply with the statute in the state where the agreement is signed, and revoke all prior wills and codicils in the state where the agreement is signed. A provision that may be enforceable in Georgia may not apply or be enforceable in Florida.
When to Revise Your Prenup
A prenuptial agreement should not be thought of as a stagnant document that is only executed once at the beginning of a marriage. Life happens, and various changes may require a prenuptial agreement to be amended, expanded, or simply reviewed.
These changes can include:
Children Pregnancy and the birth of children are one of the most common changes that compel a prenuptial agreement to be updated in Florida, and for good reason. Children will usually have rights to their parent’s estate in the event that anything happens to that parent, and preexisting prenuptial agreements generally do not address how children from a prior marriage will impact an estate plan. The addition of a child means that a prenuptial agreement should be reviewed to account for how the estate will be handled should the parent of those children pass away while they are still minors.
Significant Asset Changes Sometimes people experience a significant shift in their financial situation, whether it is an increase in income which allows them to buy an expensive car or a major loss in assets due to a business failure or personal bankruptcy. This may entail a simple financial disclosure review in many cases, but in other cases a prenuptial agreement may simply need to be modified to protect the assets of the spouse who has suffered the estate loss.
Relocation Spouses frequently move around throughout their lives, whether it is for work or retirement. Both of these scenarios can impact prenuptial agreements in various ways. For example, if you are planning on leaving Florida to relocate elsewhere, you may want to review your prenuptial agreement to determine if the laws of your new state would require a modification or revision of the agreement.
Myths and Truths About Prenups
A common misperception about Florida prenups is that they are unfair. Prenups must be entered into voluntarily, and a judge will strike an agreement that is not entered into voluntarily. But like any contract, a prenup can be unenforceable if not entered into voluntarily. If one spouse completely blindsides the other with a prenuptial agreement or consents to the agreement under duress or, say, because the other spouse threatened not to marry him unless he signed the agreement, then the judge may very well not enforce the agreement. There are remedies for that situation under Florida law, and they are not limited to prenups. See, e.g., Fla. Stat. 61.075 for postnuptial agreements; Fla. Stat. 725.01, requiring a legal purpose for contracts, including prenuptial agreements; and Fla. Stat. 725.101-825.102, providing for the state’s Not For Profit Corporation Act, and the bright line rule of exculpatory clauses in Fla. Stat. 672.302. Although one of many factors used by Florida judges in determining the fairness of an agreement, the disparity in each spouse’s wealth at the time of marriage is a common consideration.
A related misperception is that a prenup is unnecessary because marriages are already partnerships. Under Florida’s equitable distribution statute — Fla. Stat. 61.075 — a spouse’s income accrued during marriage is marital property. Whether income is premarital property or marital property depends on the time when the income was earned or it was transferred to an account, not the form in which it is held. Thus, even if a spouse owned property prior to marriage , the action of placing some or all of that property in a marital partnership — such as through a joint tenancy with rights of survivorship — could possibly convert it into marital property subject to equitable distribution during a divorce.
Another misperception is that a prenup robs a spouse of his or her "day in court." A spouse retains all of his or her rights under Florida law, including the ability to challenge the prenup on a variety of bases. While a judge may consider certain factors in determining whether or not to enforce a prenup, the required consideration of these factors does not shift the burden of proof on the challenging spouse. It remains on the challenging spouse to establish a valid basis for not enforcing the prenup. A spouse also has the right to seek a waiver of his or her temporary needs for necessities, such as food and housing, under the judges’ broad powers and discretion established in section 61.075(6)(c)2.
A final misperception is that prenups are full of hostility and only serve to brig an end to the marriage. To help eliminate this misperception — as well as to determine a wide range of issues that the parties themselves can decide — Florida law imposes safeguards when entering into a prenuptial agreement. For example, Florida requires that both parties receive full disclosure of the other party’s income and assets; that the agreement be in writing; that the agreement be executed voluntarily by both parties without duress or coercion; and that both parties be represented by independent counsel or waive the right to independent counsel. See Fla. Stat. 61.079.