Do I need a prenuptial agreement?
No one enters into a marriage thinking it’s going to fail. But, there is a world of difference between planning to divorce and planning for divorce. The fact is that many marriages today do end with the parties going their separate ways. We’ve found that having a robust prenuptial agreement in place can minimize the stress and frustration spouses may feel if and when that time comes.
We understand that this is not an easy topic to bring up with a spouse-to-be, much less discuss in detail. But, there is simply no substitute for the security and peace-of-mind that a bit of sound financial planning provides. That is what a well-drafted prenuptial agreement does.
Many prospective spouses who would benefit from a prenuptial agreement don’t even know why they may need one. This is probably due to the many common misconceptions that exist about prenuptial agreements and the way that they work.
First, let’s do away with the notion that only wealthy people need prenuptial agreements. Nothing could be further from the truth. Anyone with assets that they want to protect can benefit from the protection that a well-crafted prenuptial agreement provides. This category includes, but is not limited to, homeowners, business owners, retirees on a pension, and owners of intellectual property like patents, copyrights or trademarks. Although property owned prior to marriage is not generally subject to equitable distribution in a divorce, an increase in the value of that property may well be. A prenuptial agreement can help safeguard an asset that appreciates in value during the course of a marriage.
A prenuptial agreement can also be used to limit the scope of what does and does not constitute a marital liability. This can be extremely useful in cases where one spouse racks up excessive amounts of debt without the other’s knowledge or consent. Without a prenuptial agreement, both spouses would most likely be equally responsible for that debt. With a prenuptial agreement, the innocent spouse can be protected.
Another common use of a prenuptial agreement is to detail how the subject of alimony or spousal support will be handled in the event of a divorce. Many prenuptial agreements are written to say that neither spouse is entitled to alimony. On the other hand, some prenuptial agreements allow for spousal support but limit the amount, type, and duration. For example, there may be a clause that says one spouse will be entitled to alimony of $5,000 per month for a period of no more than two years – but only if the marriage lasts more than a decade. Such clauses are most common in cases where there is a significant income disparity between the prospective spouses.
So, we’ve seen that properly drafted prenuptial agreements are both versatile and effective. But, they do have limits.
What can a prenuptial agreement do?
- Dictate what will happen if a particular event – divorce or death of a spouse – occurs.
- Specify each party’s ownership rights in property or assets acquired during the marriage.
- Specify each party’s responsibilities for debts and liabilities incurred during the marriage.
- Determine whether either spouse is entitled to alimony and, if so, specify the amount, type, and duration of the award.
- Safeguard property owned prior to marriage, including any appreciation of value or income derived from that property.
- Virtually anything else the parties agree to so long as that agreement does not violate Federal law, Florida law or public policy.
What can't a prenuptial agreement do?
- Waive either spouse’s right to seek temporary alimony or attorney’s fees during a divorce case. Temporary alimony is spousal support that may be awarded while the divorce case is ongoing.
- Anything that violates Federal law, Florida law or public policy.
Is a prenuptial agreement enforceable?
Under Florida law, a prenuptial agreement is completely enforceable as long as it satisfies certain requirements. For example, it must be in writing and signed by both spouses, without coercion or duress, after full disclosure of their finances. And it must be fair. As long as these conditions are met, even a prenuptial agreement that seems to be tilted greatly in one spouse’s favor will generally be upheld by the court in a divorce case.
We have seen the popularity of prenuptial agreements surge recently as more and more people are convinced of their benefits. Having the right lawyer on your side can mean the difference between a valid prenuptial agreement that protects your rights, and an unenforceable contract that isn’t worth the paper it’s printed on. Contact Fort Lauderdale prenuptial agreement attorney Andrew Foster to schedule your initial consultation today.
The Law Offices of S. Andrew Foster represents clients throughout South Florida including Aventura, Cooper City, Coral Springs, Davie, Doral, Fort Lauderdale, Hallandale Beach, Hialeah, Hollywood, Kendall, Miami, Miami Lakes, Miramar, North Miami, Parkland, Pembroke Pines, Plantation, Sunrise, Tamarac, and Weston.