What is a Prenuptial Agreement in Florida?
A Florida prenup is simply written contract signed by both parties that defines the arrangement for the management of assets and expectations for spousal responsibility in the event that a marriage deteriorates. For example, one spouse may be concerned that his or her partner will expect support payments each month during the divorce process. The prenuptial agreement can list alternative requirements for the period between legal separation and final divorce or even eliminate support entirely . The terms of a prenup agreement apply in the event of divorce or legal separation. They cannot dictate the behavior of spouses during marriages. A prenup carried through the duration of a marriage holds up in court as long as you’ve complied with Florida divorce laws. All Florida prenup forms must comply with the law to be legally enforceable. "There will be circumstances where a court, in terms of an equitable distribution, will take into account other financial resources in the settlements."
Elements of a Form for Florida Prenuptial Agreement
The essential elements of a valid prenuptial agreement executed in Florida includes the essential facts: A) Financial Disclosure. Full and fair disclosure of assets and income must be provided. B) Spousal rights and obligations post-dissolution. A waiver of alimony may be included. C) Incidental Rights and Obligations. These are shall provisions, such as confidentiality requirements and choice of law provisions. D) Execution Requirements. A prenuptial agreement must be in writing and signed by both spouses. E) Witnesses. There should be at least two witnesses who sign to the validity of a Florida prenuptial agreement.
Enforceability Requirements
Florida law sets forth certain express statutory conditions that must be met for a prenuptial agreement to be considered enforceable. The Florida Statutes require that a prenuptial agreement or antenuptial agreement (as it is also commonly referred to) be executed voluntarily and that the terms of the agreement be just and fair, or that the execution of the agreement was not caused by the fraud.
Voluntary execution involves the absence of coercion by one spouse over the other at the time the agreement is executed. This means that both parties to the agreement must negotiate and sign the agreement free of any threat or duress. Although the absence of any negotiation concerning the agreement is one factor that is considered when evaluating the issue of voluntariness, this fact standing alone is not typically sufficient to find that the agreement was not appropriate due to a lack of voluntariness.
Fairness is generally evaluated by an assessment of the full and fair disclosure by one party of his or her financial worth to the other party. The agreement must further not diminish the ability of one party to support himself or herself in the future.
Other statutory conditions to the enforceability of a prenuptial agreement under Florida law include an adequate understanding of the terms of the agreement by both spouses. This can often be shown with evidence that both spouses had independent counsel during the negotiation of the agreement.
Advantages of a Prenuptial Agreement Form
A prenuptial agreement form that has been pre-prepared and form-filled depending on the nature of the concern provides the Florida resident some benefit of efficiency. You will have the benefit of having an experienced prenuptial agreement attorney opinion on the form. Furthermore, the pre-prepared Florida prenuptial agreements with your prenuptial agreement attorney’s suggestions already typed in is of great value to couples who do not know where to start. This generally results in eliminating spousal support issues, instead your marriage may result in greater wealth if you struggle with the prenuptial agreement form. You may even be able to make financial gains despite uncertainties about the future with a prenuptial agreement form.
Common Pitfalls to Avoid
To navigate the often-treacherous waters of prenuptial agreements, it helps to be aware of some common mistakes that can render the document ineffective. Some of the most frequently occurring errors occur in one or more of the following areas:
• Failing to disclose assets: If one party conceals assets from the other , the court may void the prenup enforcement.
• Bringing the prenup out too late: Florida law requires that the prenup be signed at least seven days prior to the wedding. Failing to do so can jeopardize the contract.
• Not reading the contract and having an attorney review: A booming economy can put undue pressure on a couple to sign that contract without careful review. Without knowing exactly what you are signing, you may be better off not signing at all.
• Not having an attorney review the contract: If you or your spouse did not have the contract reviewed by an attorney, you should expect trouble if the agreement ever needs to go to court.
Steps to Follow to Draw up a Florida Prenuptial Agreement
A typical prenup process begins well before the wedding with an informal, preliminary discussion between the parties. Most Floridians I counsel like to spend more time than in other states thinking about the potential consequences of a bad marriage. I typically find that most people are better off analyzing their future possibilities with a blank piece of paper in front of them and one party’s concerns written down. Usually a client is initially forced to rely on my experience, but rarely does not appreciate having a second opportunity to re-read a proposed agreement a lawyer prepares for discussion. I do my best to capture the parties’ initial thoughts and without prior rewriting encourage clients to read the initial version aloud to the other party, then listen to the other party’s questions, comments or concerns.
Next comes a period of negotiation, during which the parties identify disagreements over specific terms and work to resolve them. Once they reach agreement, they will almost always put it in writing.
The next step is the most important, and usually requires the most time and attention. The Florida Supreme Court in their "Mandatory Disclosure" rule (Family Law Rule 12.285) requires parties to disclose a wealth of information, including financial affidavits, income tax returns, bank statements and other personal information. The specific requirement is that each party must fill out and exchange a one-page document called a "Financial Affidavit" with supporting documents such as the couple’s joint income tax return and recent bank statements. Without these important late life financial disclosures, no court will approve the contract. You may have to go to court to enforce an agreement you simply do not understand, and never signed, if it never reaches a judge’s approval. Take your time and execute a strategy: go to court to enforce an unsigned contract and you may find it evolves into a dispute over the validity of the contract, a hearing before a new judge who disagrees with the first judge, or even a family law appellate case.
After all paperwork is submitted, the attorneys perform background checks through national databases against the parties to confirm financial and other information provided is accurate and complete. This search takes time and utilizes specific databases, many of which require a monthly subscription that can reach into the hundreds of dollars. It is not uncommon for people going in the marriage unaware that a bad arrest record exists. And no matter how nice your country club, if a golf cart accident requires a trip to the emergency room, a hospital bill will still be due. Of course, the person familiar with the marital assets is normally in better control of the information gathering process, and an honest, fully-disclosed investigation is welcomed by both parties.
The final step is the exchange and signing of the forms (which are typically signed outside the presence of a notary public and witnesses), and sworn acknowledgment of the agreement by a notary.
Amending or Terminating a Prenup
Mutual agreement of the parties to revise a prenuptial agreement is the simplest modification process a couple will likely face. Or, if for some reason either spouse thinks the existing prenup is no longer working for them, Florida law allows either party to petition the court to invalidate the agreement. Any amendments made to a prenuptial also require a notarized signature from both parties unless signed in open court. Another issue to consider is that Florida law allows anyone to challenge the validity of a prenup by arguing that it was "unconscionable . " Even when the document has been signed, the legal term "unconscionable" can be used to challenge the prenup if: It is determined that one party didn’t willingly and knowingly sign the agreement or was led to sign under duress, it was not represented by an attorney, or one spouse was not fully informed of assets and liabilities before signing. Section 61.58 of the Florida laws clearly states requirements for modifiable prenup agreements, which include the following: If either party lacks the ability to make decisions, a representative may review and verify. If one spouse is not represented by an attorney, the spouse must be fully informed of assets and liabilities, and enter the agreement voluntarily without duress. Finally, the prenuptial must be unconscionable and its enforcement would make it so.