As a whole, prenuptial agreements have received a bad reputation in society at large and even in the court system. Some states look more favorably upon a marriage prenuptial agreement while others view them with more caution and hostility.
Here is some information about some of the basic state laws governing prenuptial agreements in some states with a more developed body of law in this area.
Uniform Premarital Agreement Act
A Florida prenup, much like any other prenup, is subject to state law. Specifically, Florida has adopted the Uniform Premarital Agreement Act. 27 states have adopted this act, including California and Texas.
This act specifically states that prenuptial agreements may not be amended or revoked unless mutually agreed upon and signed in writing by both parties. It also permits the parties to include the basic provisions of a prenuptial agreement and lists the necessary requirements for a court to determine that the agreement is enforceable.
The Uniform Premarital Agreement Act allows parties to agree to anything concerning a marriage that would not be a violation of public policy. For instance, the parties can make decisions concerning the classification of separate and marital property, their rights to death benefits and provisions under a will. They can not, however, limit child support obligations and in some states, can not limit spousal support obligations.
Some Important State Distinctions
A Texas prenuptial agreement does not come with special provisions under the statute aside from the text of the Uniform Premarital Agreement Act. Nor do Florida prenup agreements. In fact, Florida courts are one such jurisdiction with a history of hostility toward prenuptial agreements so couples in Florida should be especially careful in the creation and signing of prenuptial agreements in that state.
However, a California prenup is more likely to be upheld by the California courts. A California prenup does not have to be notarized and there is a case where an oral prenup was upheld by the courts. California is one state that requires the presence of legal counsel if the prenup limits spousal support/alimony/spousal maintenance. Limits on spousal support are not taken lightly by the courts and both parties should be aware of what those limits entail, regardless of the possibility that the provision will be thrown out.
California courts will not allow provisions that penalize a party for infidelity or drug use. Prenuptial agreements are also not the place to require children to be raised in a particular religion or a party to provide domestic services and provisions like these have also been struck down in California courts.
If you are going to have a prenuptial agreement, you must research the law in your state or consult an attorney in the state who is familiar with your state's law. This will ensure that your prenuptial agreement will be upheld in court and prevent future problems.
Getting Legal Help
Since the laws on prenuptial agreements vary so widely, it is extremely important to work with a licensed, experienced attorney in your state if you are seeking a prenup. The attorney will be able to craft a legally valid prenup and make sure the court enforces it to best reflect the parties' intent.
