Couples are increasingly concerned about protecting themselves and their assets as they decide to marry. Couples are marrying later, establishing themselves financially prior to marrying and want to ensure that in the event of a divorce, the assets and business interests they worked hard to gain prior to the marriage do not go to their spouse in a divorce. In recent years, prenuptial or premarital agreements have come to be seen as the organization and classification tool that they really are. Prenuptial agreements allow the parties to clearly describe the assets and debts they are bringing into the marriage and what should happen with them in the unhappy event of a divorce. The Florida Premarital Agreement Act stipulates certain circumstances that must be observed in order for the agreement to be valid. Those circumstances include: full financial disclosure, reasonable support provisions, and the absence of any fraud, duress or coercion.
Promising to pay alimony is not a hallmark of a valid prenuptial agreement. In fact, many prenuptial agreements specifically provide for a waiver of alimony in the event of a divorce. However, a waiver of temporary alimony or temporary support is against the public policy of Florida, is considered unreasonable and will be considered a void provision. One of the many good reasons to enter into a prenuptial agreement is to determine everyone’s financial responsibilities before, during and after a marriage. If everyone knows what to expect, everyone will make better decisions for themselves during the marriage. For example, a high earning spouse may want to protect his or her income and premarital assets from alimony claims by including either a waiver of alimony, or by structuring an alimony pay out that he or she can anticipate and rely upon in the event of a divorce.
Often times, couples will waive alimony in a prenuptial agreement and instead provide for marital assets or other type of security for the impecunious spouse. This creates security for both spouses. The high earning spouse can predict, plan for, and provide security to his or her spouse and the impecunious spouse will feel taken care of in the event of a divorce.
Prenuptial agreements are long, complicated documents that require ample time to review. It is never a good idea to give your soon-to-be spouse a prenuptial agreement to review, negotiate and execute the weekend before the wedding. You should begin discussing your prenuptial agreement with your fiancé soon after you become engaged. This means discussing your desire for a prenuptial agreement and discussing and agreeing upon most of the terms. Consult with an attorney early in the engagement. Your attorney can help you figure out how to have the conversation with your fiancé, give you options, and explain what certain agreements could mean for you in the event of a divorce. Further, as you and your fiancé discuss the terms of the prenuptial agreement, your attorney can help you find reasonable solutions to the issues that arise. Initiating the prenuptial agreement should begin several months in advance of the wedding.
There is no law requiring both you and your fiancé to engage the services of an attorney to negotiate the prenuptial agreement. However, it is a very good idea to do so. In fact, if you are the high earner, you should suggest to your fiancé that he or she should hire an attorney and you should consider paying those attorney’s fees and costs for him or her to ensure that his or her rights are protected and the agreement is negotiated fairly. You do not want your soon-to-be spouse to feel unfairly treated. Your prenuptial agreement will start off the tone of your marriage. You do not want your spouse to resent you because of the negotiations of, or lack thereof, of the prenuptial agreement.
In Florida, the best interests of the child will prevail in connection with any child issues. You may want to include equal child timesharing provisions and set child support amounts in your prenuptial agreement, but those provisions will only be instructive and may even be considered voidable or void. At the time of your divorce, the court will have to make a determination as to what is in the children’s best interests at the time of the divorce, not at the time the prenuptial agreement was negotiated and before there were any children.
If you are asking your fiancé to waive his or her rights to certain assets that could accumulate during the marriage or support that he or she would be entitled to under the divorce statutes, you need to provide full financial disclosure to your fiancé. In order to understand what he or she is waiving, you first have to tell him or her what you have. This includes disclosure of income by providing tax returns and bank statements, and by providing a financial statement or by executing a financial affidavit. You also need to disclose all of your assets by providing most recent statements or documents evidencing the existence of and value of your assets.
You may be concerned that your entire financial estate could become public knowledge. This does not have to be the case. The disclosures attached to a prenuptial agreement can be designated as confidential and not to be attached to any pleading or motion, and to only be presented at a hearing if needed.
Once you are married, you can keep track of, and designate separate or non-marital assets through the execution of a postnuptial agreement. If divorce becomes a reality, a postnuptial agreement can help divorcing couples avoid many of the common disputes that occur.
The post nuptial agreement is negotiated and executed after the marriage whereas the prenuptial agreement is negotiated and executed before the marriage. Postnuptial agreements are governed by different case law that the Prenuptial agreement.