Prenuptial agreements or “prenups” are more popular than ever. This is for a couple of reasons.  Traditionally, people married earlier when they were just getting started with their adult lives. Today, it’s more common for people to get married later in life. As a result, people contemplating marriage increasingly already own real estate and have established careers. Some of them even have vacation homes and significant retirement and savings accounts! Enter the prenuptial

A prenuptial agreement is a legally enforceable document entered into by two parties in anticipation of marriage that sets out each party’s entitlement to assets, liabilities and spousal support in the event of a divorce. Prenuptial agreements or “premarital agreements” in Florida are governed by §61.079, Florida Statutes. In order for them to be enforceable, they need to be in writing and signed by both parties. Parties must also comprehensively disclose their financial situations to each other. Typically, this means that each party provides to the other party copies of their checking, savings and investment account statements, information about their employment as well as anything related to their debts/liabilities. If little or no financial disclosure is made, a prenup would be more susceptible to attack in the event of divorce.

Prenups do not become “active” until a party files a petition for dissolution of marriage (divorce). Importantly, prenuptial agreements do not directly affect child support or parental responsibility of minor children.  They also do not impact time sharing (what used to be called “custody” under Florida law prior to the changes to Chapter 61, Florida Statutes in 2008). A prenuptial agreement can be amended or revoked in writing if signed by both parties.

A prenuptial agreement is not enforceable in Florida: 1.) If the parties did not execute the agreement voluntarily. 2.) If the agreement was the product of fraud, duress, coercion, or overreaching. 3.) If the agreement was unconscionable when it was executed and, before execution of the agreement, a party was not: a.) provided 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.

Because prenups can be held unenforceable by a judge in a divorce proceeding, it’s important to follow some simple, best practices. The first one should be a no-brainer: hire a family law attorney who has experience with drafting and reviewing prenuptial agreements.  Second, make sure that you comprehensively disclose your finances to your partner. Playing “fast and loose” with your disclosures or hiding assets/liabilities is a recipe for an unhappy marriage and potentially an unenforceable premarital agreement.

Finally, keep in mind that the process of having a prenup prepared can be upsetting. No one wants to talk about what happens in the event of a divorce on the threshold of marriage. In my experience as an attorney, I’ve found that a good family therapist can greatly assist couples who are considering entering into a prenuptial agreement.  In 21 years of practicing family law in Central Florida I’ve seen prenups ranging in length from around 10 pages to nearly 100. Let me know if you have any questions regarding prenups or any other marital or family law matters.