Florida Prenuptial Agreements

A prenuptial agreement is a contract entered into prior to marriage by a couple who are planning to marry.  The usual content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of the breakup of the marriage.  The contract can also contain terms for the forfeiture of assets if the divorce has been granted on grounds of adultery.  There are times when the issue of guardianship is also included in a prenuptial contract.

In the past, judges in this country tended to disregard prenuptials agreements because they accepted the view that these contracts turned what was supposed to be the most intimate and sacred bond into a financial arrangement, but nowadays they are recognized, though they may not be enforced.  In the United States, prenuptial agreements are recognized in Florida and the other 49 states, as well as the District of Columbia, and require five elements to be valid.

  • the agreement must be in writing as oral prenuptials are generally unenforceable
  • full and/or fair disclosure at the time of execution
  • must be executed voluntarily
  • the agreement cannot be unconscionable
  • the agreement must be executed by both parties “in the manner required for a deed to be recorded”, which is known as an acknowledgment, before a notary public

In Florida as in other states, the prenuptial agreement, or as it is called in Florida, the Premarital Agreement, becomes effective upon marriage.  The agreement can be amended, revoked or abandoned, but only by a written agreement signed by both parties.

Although no couple goes into a marriage thinking they may divorce in later years, unfortunately there is a fifty-fifty chance that divorce is in their future, and there are times when a premarital agreement can be quite beneficial.

A prenuptial agreement protects one party who enters into a marriage with a larger amount of assets than that of his soon to be spouse.  It also protects the party who enters into marriage with a partner who has a high amount of debt in that after a divorce, the creditors will go after the owner of the debt and not his/her innocent partner.  If one partner in a marriage should pass away, a prenuptial agreement could keep previously acquired assets separate from his/her  current marital estate, ensuring that the children from a previous marriage receive part of the estate. 

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