Pre & Post Nuptial Information
Central Florida Prenup and Postnup Agreement Attorneys
To be valid under Florida law, a premarital/prenuptial or antenuptial agreement cannot be a product of fraud, duress, coercion or overreaching. Each party must execute the agreement voluntarily. The Court may set aside the agreement if the agreement was unconscionable when it was executed and other conditions were met.
These agreements are often used in second marriages and in marriages where one of the spouses has significant assets or a business interest.
Florida Staute Section 61.079 governs the premarital agreements (also known as prenuptial agreements). Prenuptial agreements are used to determine in advance how property will be divided in the event of a divorce. As long as these agreements are properly drafted, they are respected by Florida courts. Generally speaking, most premarital agreements are drafted for one of two reasons:
1. Deciding in advance how marital property should be divided
By drafting a premarital/prenuptial agreement, you can bypass Florida law when it comes to the distribution of marital property and debts in the event of divorce. The agreement can help avoid disputes and surprises, especially when it comes to assets you want to protect, such as a family business or a vacation home.
2. Protecting a child’s property rights
If you have children from a prior marriage, you may want to draft a premarital/prenuptial agreement to protect your children’s property rights in the event you should die or divorce. There have been numerous cases in Florida and other states where a stepparent has disinherited a former spouse’s children in favor of his or her own children.
Note: Although parties are free to contract away their property rights and even post dissolution alimony, in the State of Florida you cannot waive temporary alimony or temporary attorney’s fees, should a dissolution of marriage action ensue. Furthermore, provisions in a prenuptial agreement with respect to children’s issues are always subject to change by the Court. For example, parents cannot waive a child’s right to child support by an agreement.
Postnuptial agreements are property agreements that are entered into after marriage. Sometimes, a spouse is unaware of the pre-marital debts or financial condition of the other spouse. Postnuptial agreements can often be used to protect a partner from incurring a spouse’s debts. They are also used frequently by individuals entering into a second or third marriage so that the interests of children from a previous marriage are properly protected.
Validity of Prenuptial and Postnuptial Agreements
Generally, in order for prenuptial and postnuptial agreements to be valid they must be in writing. To be valid, parties must enter into these agreements voluntarily and knowingly. Parties should exchange full and frank financial disclosure. A spouse may set aside or modify an agreement by establishing that it was entered into under fraud, deceit, duress, coercion, misrepresentation, or overreaching.