What is a Prenup, Anyway?
A prenuptial agreement, also commonly referred to as a premarital or antenuptial agreement, is "an agreement between two people who are about to marry that is signed prior to, and in contemplation of, the marriage." McCoy v. McCoy, 93 So. 3d 1093, 1095 (Fla. 2012). Florida Statutes Chapter 61 recognizes the validity of prenuptial agreements and sets out a listing of the general subject areas which may be included in the agreement. To be valid and enforceable, a prenuptial agreement must be in writing, and signed by the parties. The agreement must be "voluntarily executed by the parties , " and they must both fully and fairly disclose all of their assets and obligations. Fla. Stat. ยง 61.079. Many couples enter into prenuptial agreements as a way to protect assets they had prior to the marriage, and which they want to remain separate. Others include provisions in their agreements concerning alimony, waiving the right to support, or determining child support in the event of divorce. While enforcing provisions relating to children of the marriage is prohibited by Florida law, there is much flexibility in what other things can be included in the agreement.
Essential Elements to Include in Your Florida Prenup
Essential elements must be included in a prenuptial agreement signed in Florida, or will be subject to state law regulations. It is essential for both parties to understand fully the legal responsibilities that define their marriage going forward.
For example, the agreement must include clear terms of asset division, debts and property rights to all parties before and during the marriage, and how these assets and property will be treated once liabilities arise.
Florida law makes it clear that the asset division must be done openly and voluntarily. Both parties must have a full understanding of the nature and value of the property and its distribution.
There must also be full and fair disclosure of debts, as well as any other obligations that could change the financial status of either party. If the agreement is intended to release one or both parties of present and future claims, then all intention to do so should be clearly articulated.
To ensure that the full value of any transaction is disclosed, a legal valuation should be undertaken for real property and business interests said to be transferred. The agreement must also contain language that identifies the date it is signed by both parties and that both parties are aware of their responsibilities.
Other key components of a prenuptial agreement include the following: Florida law holds that a prenuptial agreement is presumed to be enforceable unless it can be shown that one of the following was true: Clearly, the language in a prenuptial agreement must be straightforward and plainly set out. Unusual or deceptive provisions will likely render the contract invalid.
Requirements to Make Your Florida Prenup Valid
To be considered valid, the agreement must be in writing and signed by both parties. Fla. Stat. 61.079(2). Florida Statute 61.079(5) lists the additional requirements that must be met for a prenuptial agreement to be considered valid:
- the agreement must not be unconscionable when it was signed
- the party against whom enforcement of the agreement is sought must have been provided a fair and reasonable disclosure of the property or financial obligations of the other party, or did not have such disclosure or a waiver of disclosure and did not have adequate knowledge of the other party’s property or financial obligations
- the right to consult with an attorney must have been waived in writing, and the party against whom the agreement is enforced must have entered into the agreement voluntarily.
There are two potential triggers for an unconscionable agreement. One trigger is when the terms of the agreement would leave one spouse with insufficient property to provide for that spouse’s reasonable needs, and:
- the spouse was not represented by independent legal counsel at the time of or prior to signing the agreement, or
- that spouse was not provided a fair and reasonable disclosure of the property or financial obligations of the other spouse, or
- that spouse did not voluntarily and expressly waive in writing, the right to disclosure of the property or financial obligations of the other spouse beyond the disclosure provided.
The other potential trigger is that the agreement was executed involuntarily.
With prenups that meet the requirements of Fla. Stat. 61.079, the burden is on a challenging party to prove that an agreement is unenforceable.
Only formulary requirements need to be met for a prenuptial agreement to be valid.
Sample Clauses to Consider Including in Your Prenup
In general, your prenuptial agreement should address the property of each spouse and the rights that each spouse has to that property. The agreement may also involve future inheritances – who will get what after one spouse has passed. Finally, a prenup is a very effective way to waive or eliminate the possibility of spousal support. Here are some examples of the types of clauses you will often see in Florida prenuptial agreements.
Spousal Support Waiver: Although Florida law allows the court to award spousal support, your prenuptial contract can eliminate that right. In this case, the language looks something like:
"In the event of any termination of the marriage of the parties in divorce, the parties mutually agree that neither spouse will make any claim to an award of alimony or spousal support by the court, and neither spouse will seek compensation for a claimed unpaid economic or non-economic contribution made during the marriage."
Ownership of Business Interests: A prenuptial agreement also serves to protect businesses built prior to marriage. For example:
"At the time of the execution of this Prenuptial Agreement, and at all times hereafter, as the same may be, Lorette Shall presently own the Paint Shop, Inc., and Paint Shop of Fort Myers, Inc . , including all rights, profits, dividends, payments of any kind, stock, interest, and any and all other interests or entitlements accruing or appertaining to said Paint Shop corporations. Certainly, Lorette did her part, but it was Billy who did the labor. and Billy remains the bedroom handyman. Billy also agreed to work in the shops upon occasion, and he does so cheerfully, yet look what he did to his relationship with Lorette. Ocean Spray paint became his mistress and the business devoured him.
"Neither spouse may claim any interest in the Paint Shop corporations and neither spouse makes any claim to any salary or income from the Paint Shop corporations. Certainly, however, the income and property belonging to Lorette, which was established prior to the marriage, is separate property that should remain so."
Inheritance Rights: If one or both of your parents have run their own businesses, and then passed those on to their children, a prenup is very helpful to hold onto the rights to inheritance. The clause might look like this:
"The real property at 123 Any Drive, Any City, Any State, is clearly the homestead of Landy, as he inherited it from his mother. Clearly, it was his idea to name the first-born son (yes, that’s Billy) as a co-owner. It was not Billy’s wish. No current child of Billy’s will receive the $35,000.00 owed to Landy for Billy’s interest in his land and home."
Florida Prenup Pitfalls
Unless you are a drafter of these kinds of documents every day, it can be easy to overlook or forget something that should be included in your Florida prenuptial agreement. The following are some common mistakes people make when preparing their Florida prenuptial agreements. Impact: premature failure due to omission of mandatory information, or omission of instructions for completion of the form (NOTE: this is not an exhaustive list):
- With regard to assets, do not just list the property in the agreement as "our property" without saving space to identify what each party owns. The agreement must identify what each party owns and what they acquired it with.
- If bank accounts have only one spouse’s name on them and were acquired by gift or inheritance from someone other than the other spouse, the spouse with the bank account may have an argument that the area is separate property and should just be left out of the prenuptial agreement entirely.
- Do not just list percentages for the amounts each spouse would receive in case of divorce; also list specific amounts if you want them to be effective.
- Prevent any "disparaging remarks" in the agreement, whereby the prenuptial agreement could invalidate or terminate itself due to harsh remarks (a unilateral termination policy). Avoid statements like "without this agreement, you are a lower class person" or "if you misspend our money again, I will seek reparations and take you to court."
Effects: may suffer financial loss in court; agreement may be declared invalid by enforcement agent.
Consulting a Lawyer
Both parties in the arrangement should not only have separate representation but, it is in both of their best interests to meet with their own attorneys early on to discuss the process of negotiations. It is important that a prenuptial agreement is entered into by both parties freely and voluntarily without duress or coercion. Doty v. Doty , 430 So.2d 505 (Fla. 5th DCA 1983) If there is any evidence that a party was pressured into signing a prenuptial agreement, a court may set the contract aside. Where the parties do not have independent counsel, a showing that the wife signed the agreement under great duress was made where, at the time of execution, the parties were negotiating the terms of the divorce and the husband was engaged in an affair with another woman. Claire, 514 So.2d 1055 (Fla . 4th DCA 1987) Another issue which may arise in this type of agreement is whether or not the facts concerning the parties’ financial situation were adequately disclosed. Rogers v. Ingram , 745 So.2d 506 (Fla. 4th DCA 1999); Huerta-Mercado v. Huerta , 401 So.2d 867 (Fla. 3d DCA 1981) The adequacy of disclosure is based on the facts and circumstances of each situation, and when a party has not been given full disclosure, a prenuptial agreement may be deemed unenforceable. McKeever v. McKeever , 9 Fla. L. Weekly Supp. 357 (Fla. 6th Cir. Ct. 2001) Keep in mind that the final approval of the agreement will ultimately rest with a judge. An experienced lawyer will work with you to ensure that the contract is fair to both parties and meets the statutory requirements. Your lawyer will also be important in addressing any particular circumstances that apply to you.
