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FLORIDA

PRENUPTIAL AGREEMENTS

Florida Prenuptial Agreements (also called “premarital agreements”) are written contracts that couples enter into prior to marriage. Prenups in Florida are expressly allowed by Florida’s Uniform Premarital Agreement Act (§61.079 of the Florida Statutes), which sets forth the requirements for entering into a legally enforceable Florida Prenuptial Agreement, including the content that can and cannot be included in a premarital contract.

 

The fact that the State of Florida has embraced prenuptial agreements by codifying the contractual requirements in the Uniform Premarital Agreement Act makes The Sunshine State a favorable jurisdiction to ensure a binding and enforceable prenup.

 

Importantly, you must have sufficient “nexus” to Florida to justify having a Florida prenuptial agreement (for example, one party is a Florida resident, owns property in Florida, you are getting married in Florida).

The terms of a prenup agreement are very personal. There is not a “one size fits all” standard Florida prenup agreement template that will work for every couple. Every couple getting married is unique, with different goals and needs.

 

DID YOU KNOW? A Florida premarital agreement is a private document between a marrying couple, and no one else. A Florida prenup does not get filed with any local, state or federal agency, and couples often choose to keep the terms confidential.

WHAT TERMS CAN BE IN A FLORIDA PRENUPTIAL AGREEMENT?

When a Florida couple gets married without a written premarital agreement, they have basically agreed to have their rights determined by a default set of marital and divorce laws that they might not understand, and which may not suit their needs and goals.

In contrast, a written prenuptial agreement signed before marriage allows spouses to take control of their destiny in the unfortunate event of separation and divorce by pre-negotiating the path of least resistance and what is in the best interest for both parties. 

How do couples decide what to put in a Florida Prenup Agreement?

From a big-picture perspective, the content and terms of Florida prenups that are enforceable under the Uniform Premarital Agreement Act are generally driven by a couple’s desire to “opt out” of certain default Florida laws that would otherwise determine their marital rights, but which laws might not be bad for them and/or might lead to fighting in the event of a divorce.

So, Florida premarital agreements are essentially written to allow a couple to agree on marital rights and divorce terms that supersede and replace those Florida divorce laws that often force couples to lawyer up and battle it out in court.

Here are a few examples of terms commonly found in Florida Premarital Agreements.

KEEPING SEPARATE PROPERTY SEPARATE

A popular use of a Florida prenuptial agreement is to keep each spouse’s Separate Property separate during the marriage, completely free from any marital claims in the event the marriage is dissolved. When couples decide to keep their respective Separate Property separate, it typically includes separate property owned prior to marriage, and separate property purchased or inherited during the marriage. A couple can also choose to keep income and debt resulting from separate property separate.

Fla. Stat. Ann. §61.079(4)(a) expressly allows parties to agree to what rights they have to their Separate Property and their jointly-owned Marital Property (discussed below).

HOW TO SPLIT MARITAL PROPERTY

In Florida, spouses who do not have a written prenuptial agreement have their marital property divided by the divorce court based on a system called equitable distribution. Florida is one of more than forty states that has adopted an equitable distribution law for dividing marital property and debts in a divorce, unless the spouses have contracted in writing for a different method of property division.

 

Equitable distribution does not automatically mean an even division of marital property, because the court will split the property between spouses in a way that is equitable based on the entire picture of the couple’s finances.  Under Florida’s Equitable Distribution law (Fla. Stat. Ann §61.075), there are 10 factors that a Florida court must consider when dividing a divorcing couple’s marital property, which include:

  • Their monetary and non-monetary contributions to the well-being of the family, and to the acquisition and care of their marital property;

  • The economic circumstances of the spouses;

  • The length of the marriage; and

  • Any other factor the court considers relevant.

The equitable distribution process forces couples to leave the division of their assets in the hands of the court, so which can lead to hostility and conflict among a divorcing couple.

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SHOULD WE CONSIDER A

FLORIDA PRENUP?

Unfortunately, many marriages don’t have a fairytale ending.  According to analysts and attorneys:

  • 41% to 50% of first marriages end in divorce

  • 60 to 67% of second marriages end in divorce

  • About 74% of third marriages fail

Responsible adults routinely prepare for disasters as an obvious part of their everyday lives, but they generally protect against catastrophic events that have less than a 5% chance of occurring.  With the chances of a “marital disaster” approaching 50% or higher, it might be worth at least considering the pros and cons of a FL prenup

What is the #1 Reason to Consider a Prenup?

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Florida’s Uniform Premarital Agreement Act enables couples to agree on how to divide their separate and Marital Property. Today, it is increasingly common for couples elect to enter into a written premarital agreement that avoids the need to ever have a divorce court divide their marital property by equitable distribution. 

 

Many couples “pre-agree” that it is in their best interests to have a written prenup that would divide their joint property evenly, rather than risking an expensive and emotionally draining court battle under the equitable distribution system. 

 

Florida Prenups often include specific terms relating to major assets that spouses may purchase together during marriage, such as real estate. For instance, a Florida prenuptial agreement might split all of a couple’s marital property 50/50, except for real estate they purchase together which gets divided pro rata, according to each spouse’s percentage of contributions to the property.

ALIMONY (SPOUSAL SUPPORT) IN FLORIDA

 

The right to receive alimony or spousal support after a divorce is another major topic that couples frequently address in a written prenuptial agreement, because the Florida Alimony Laws (§61.08 of the Florida Statutes) often leave spouses no real choice but to hire divorce lawyers to fight over alimony in court. 

 

When deciding whether to award alimony/support to a spouse at all, among the ten (10) factors that a Florida court must consider are:

  • The standard of living enjoyed by the couple during the marriage;

  • All sources of income available to both parties;

  • The length of the marriage; and

  • The age, health and emotional condition of each spouse.

 

A marrying couple that leaves alimony for a divorce court to decide has essentially agreed to battle it out in a public forum with little or no certainty as to the eventual outcome.

 

Alternatively, §61.079(4)(a)(4) of the Uniform Premarital Agreement Act allows couples to agree on a wide variety of spousal support terms, because everyone’s situation is unique.

 

It is very common for Florida couples to enter into a premarital agreement under which they completely waive the right to receive alimony/spousal support in the event of divorce.  However, many people are pleasantly surprised to learn that a Florida prenup agreement can actually guarantee the right to payment of some minimum amount of alimony if the marriage is dissolved (e.g. a lump sum payment of $20,000 upon divorce). Frequently couples choose to allow -- but limit -- the amount of alimony available to either of them in the event of divorce, so that each party knows their “worst case” scenario in the event of a divorce.

 

Some couples agree to allow a spouse who is unemployed at the time of separation leading to divorce (e.g. a stay-at-home parent situation) to seek some pre-agreed amount of alimony, but otherwise waive the right to seek spousal support if both are employed. For the most part, a couple entering into a prenup in Florida can freely agree to whatever alimony terms make them comfortable to enter the marriage, given their unique personal situation.

 

Omitting spousal support terms from a prenuptial agreement just leaves the spouses to rely on default state laws in the event of divorce, which can lead to a court battle. Couples who agree on pre-defined alimony payment terms in their Florida premarital agreement can enjoy peace of mind that enables them to embark on the wonderful roller coaster of marriage with more confidence, optimism and excitement because they know that they will be on the same page during even the toughest of times.

SUMMARY

A divorcing couple that entered into a Florida prenuptial agreement before getting married has a contract that provides certainty as to their rights, minimizes conflict, hostility, and legal costs.  A well-drafted prenup is like a roadmap that helps both spouses find the path of least resistance and conflict amidst the emotional turmoil of the separation and divorce process. Signing a written premarital agreement also provides some certainty as to their marital and divorce rights under Florida law.

 

IMPORTANT: There are many other terms that are typically included in Florida Premarital Agreements beyond those premarital concepts introduced above. The above list of concepts commonly included in Florida premarital agreements is not at all exhaustive.

 

If you are engaged to be married and interested in learning more about Prenuptial Agreements in Florida, please accept our invitation to schedule a free consultation with a Prenup Pros attorney 1-6 months before your anticipated wedding date.  

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FROM THE 2020 FLORIDA STATUTES: UNIFORM PREMARITAL AGREEMENT ACT

61.079 Premarital agreements.—

(1) SHORT TITLE.—This section may be cited as the “Uniform Premarital Agreement Act” and this section applies only to proceedings under the Florida Family Law Rules of Procedure.

(2) DEFINITIONS.—As used in this section, the term:

(a) “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.

(b) “Property” includes, but is not limited to, an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.

(3) FORMALITIES.—A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

(4) CONTENT.—

(a) Parties to a premarital agreement may contract with respect to:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

4. The establishment, modification, waiver, or elimination of spousal support;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. The ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a premarital agreement.

(5) EFFECT OF MARRIAGE.—A premarital agreement becomes effective upon marriage of the parties.

(6) AMENDMENT; REVOCATION OR ABANDONMENT.—After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.

(7) ENFORCEMENT.—

(a) A premarital agreement is not enforceable in an action proceeding under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that:

1. The party did not execute the agreement voluntarily;

2. The agreement was the product of fraud, duress, coercion, or overreaching; or

3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:

a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

(8) ENFORCEMENT; VOID MARRIAGE.—If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

(9) LIMITATION OF ACTIONS.—Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

(10) APPLICATION TO PROBATE CODE.—This section does not alter the construction, interpretation, or required formalities of, or the rights or obligations under, agreements between spouses under s. 732.701 or s. 732.702.