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We’re Head Over Heels in Love: Why Should We Get a Prenup?

“We have the greatest prenuptial agreement in the world. It’s called love.”

—Gene Perret

This quote held true for the Emmy Award-winning television writer, as his marriage lasted 64 years until his death at age 85. However, the majority of Americans should consider getting a prenuptial agreement, as over 40% of first marriages end in divorce. If you’re getting married for a second or third time, a prenuptial agreement can prove invaluable, as 60% and 73% of these marriages end in divorce, respectively.

With significant experience helping Tallahassee-area spouses navigate Florida divorce laws, Cowhey + Ward Attorneys at Law can tell you that the inherent potential for divorce is not the only reason couples should consider getting a prenuptial agreement. Should love fail to conquer all, a prenuptial agreement certainly helps limit the complications of a divorce, but it also offers numerous other benefits to nuptials. Let’s examine how a prenuptial agreement works in Florida and explore why you and your intended spouse should consider getting one.

What is a Prenuptial Agreement?

Known as a “premarital agreement” under Florida law, a prenuptial agreement is a legally binding contract that dictates the division of assets and debts, and potentially alimony terms, if the marriage ends in divorce. Prenups, as they are often called, also address many other common issues that arise in a divorce, as well as some that emerge when a spouse dies. These agreements help streamline divorce proceedings and often negate the need for costly litigation. It also puts more control over the couple’s financial future by pre-determining property allocations and alimony rather than letting a family law court make these determinations.

As established by Florida’s Uniform Premarital Agreement Act, a valid prenup must meet several requirements to be deemed valid and enforceable by a family law court. They are:

  • It must be in writing and signed by both parties.
  • Each spouse must have agreed to the prenup voluntarily and free of coercion, fraud, or duress.
  • Each spouse must fully disclose all assets, liabilities, and income before signing.
  • Contract terms must abide by Florida law and not violate public policy.
  • It only becomes effective upon marriage.

Contract terms the law allows to be included in a prenuptial agreement include:

  • The rights and obligations of each party regarding any property solely or jointly owned.
  • The right to buy, sell, use, transfer, and manage such property.
  • The distribution of property due to divorce, death, or other event named in the agreement.
  • Alimony terms or its nullification.
  • The establishment of a will, trust, or other arrangement if needed to carry out any of the prenup’s terms.
  • Ownership rights and disposition of benefits from life insurance policies.
  • Choice of law governing the prenup agreement’s terms.
  • Other lawful matters the couple wants to address.

Terms Often Included in a Florida Prenup

While prenuptial agreement terms in Florida primarily involve financial decisions, they can also account for unique circumstances that may arise through divorce, death, or other matters. For example, a person with children who is entering a second or third marriage may want to ensure they receive assets in the event of their death. Under an elective share waiver within a prenup, the surviving spouse agrees to give up their legally allowed 30% share of the deceased spouse’s estate. In a similar fashion, a prenup’s homestead rights waiver ensures that a deceased spouse’s children end up with the primary residence rather than the surviving spouse (and potential new husband). Other terms often included in Florida prenups include:

  • Alimony—agreed-to spousal support amounts or complete waiver.
  • Property Rights—designating marital and separate property for the purposes of division and allocation.
  • Income—designating whether a spouse’s income is marital or separate for purposes of division.
  • Attorney’s Fees—designating a spouse’s payment of attorney’s fees if they challenge the prenuptial agreement.

What Issues Cannot be Addressed by a Prenup?

Prenuptial agreements cannot legally pre-determine every issue that may need to be addressed in a divorce, especially those affecting children. Child support and child custody arrangements can only be addressed by the family law court at the time of the divorce. The court determines child support based on each child’s needs and the respective spouse’s ability to provide support, and the court weighs the child’s current and future best interests to determine custody.

A Prenup Can Help Start a Marriage on a Solid Footing

Surprising an intended spouse by asking them to enter into a prenuptial agreement with little advance warning before a wedding can put a marriage on a rocky start. Not only can it lead to resentment from the surprised spouse, but if signed by them with limited opportunity to review or discuss its terms, the spouse may have grounds to seek invalidation in court in case of a divorce.

On the other hand, spouses who carefully negotiate prenuptial terms together gain a deeper understanding of each other’s respective financial situation. This can help set a positive tone for discussing money and finances, which many married couples struggle with. Financial matters are among the top five leading causes of divorce. Insights gained through prenup negotiations can help couples begin their marriage with a better mutual understanding of their financial standing and future goals.

Talk to Cowey + Ward About Your Prenup

The family law attorneys at Cowhey + Ward are intimately familiar with Florida’s divorce laws and the role prenuptial agreements can play in divorce. To help you develop a valid prenuptial agreement in advance of your marriage, contact our Tallahassee-based office today at (850) 222-1000.

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