Prenuptial Agreements in Florida

An overview of prenuptial agreements in Florida.

Decades ago, many states prohibited the use of prenuptial agreements, thinking that they made married couples more likely to divorce. That belief has been proven wrong over time, and all 50 states now allow couples to enter into prenuptial agreements. Rather than being harmful to marriage, these agreements can allow couples to determine their own financial destiny in the unfortunate event of a divorce.

States have varying rules regarding prenuptial agreements. This article will explain Florida’s definition of a prenuptial agreement, what it may include, and what makes the agreement enforceable.

What Is a Prenuptial Agreement?

Prenuptial agreements, also called “premarital agreements” in Florida, are contracts between prospective spouses that determine how certain issues such as alimony and property division are treated during a divorce. The agreement is essentially a trade of the act of marriage for certain financial terms in the contract.

Who Should Get a Prenuptial Agreement?

There are many reasons you may want a prenuptial agreement. No longer just a tool for the very wealthy to protect their assets from a divorce, more and more couples are using these agreements to bring certainty and predictability to their financial futures.

People who get prenuptial agreements include those who:

  • own assets prior to the marriage that they want to protect from division during a divorce
  • have children from a previous relationship and want to protect their future inheritance
  • have business interests that they would like to keep separate from their spouse is the marriage fails, or
  • want to pre-determine whether one spouse will pay the other alimony during separation or divorce.

What Issues Can a Prenuptial Agreement Cover?

In Florida, couples may use prenuptial contracts to enter into any agreements that don’t violate the law or public policy. Normally, these agreements cover each spouse’s financial rights and obligations both during and after the marriage.

Couples use prenuptial agreements to determine the following issues:

  • each spouse’s ability to manage or control property during the marriage
  • how the couple will divide their property in the event of a divorce, death, or other event
  • whether one spouse will pay the other alimony during a separation or divorce, and if so, the alimony amount and duration
  • what happens to each spouse’s retirement plans or pensions
  • what happens to the proceeds of any life insurance policies
  • whether either spouse is required to write a will to carry out the terms of the agreement, and
  • which state’s laws will be used to interpret the agreement, if necessary.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Florida?

In Florida, a prenuptial agreement can’t affect child custody or child support. Courts must calculate child support at the time of parents’ separation or divorce based on their current abilities to pay and the child’s current needs. Also, the right to child support belongs to the child, and parents can’t bargain away their obligation to pay it. Similarly, judges determine child custody based on the child’s best interests at the time of separation or divorce. If parents want to agree on child support or child custody, they’re free to do so at the time of divorce or separation, subject to judicial approval.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Florida?

Many states use the Uniform Prenuptial Agreement Act (UPAA) to determine the enforceability of prenuptial agreements. Florida adopted the UPAA in 2007. The UPAA lays out several rules to help courts determine whether a prenuptial agreement is enforceable.

Each prenuptial agreement must be in writing and signed by both spouses to be enforceable. Since the agreement is a trade of marriage for the terms in the contract, the agreement takes effect when the couple marries.

A prenuptial agreement won’t be enforceable whenever a spouse can prove:

  • he or she didn’t sign the agreement voluntarily
  • the agreement was only signed because of fraud, duress, or coercion, or
  • the agreement was unconscionable (“illegally unfair”) when the couple signed it, and the spouse challenging the agreement:
    • wasn’t given a fair and reasonable disclosure of the other spouse’s financial circumstances
    • didn’t waive in writing the right to receive a fair disclosure of the other spouse’s assets and debts, and
    • didn’t have or couldn’t reasonably have had knowledge of the other spouse’s financial circumstances.

To prove that a prenuptial agreement wasn’t signed voluntarily, the challenging spouse must show either that he or she didn’t sign the agreement at all, or only signed the agreement because of fraud, duress, or coercion. For example, a judge may find a prenuptial agreement unenforceable due to fraud if one spouse hid assets from the other when they signed the agreement. To prove duress or coercion, it’s not enough that one spouse pressured the other to sign the agreement, or refused to marry the other unless he or she signed the agreement. Courts will only find duress or coercion if one spouse threatened the other with psychological or physical harm.

If a judge believes that the prenuptial agreement is extraordinarily unfair, he or she may decide that the agreement is “unconscionable.” Just because the agreement leaves one spouse with much more wealth than the other doesn’t mean that the court will find the agreement unconscionable; judges find agreements unconscionable only in rare circumstances. Also, a court finding a prenuptial agreement unconscionable isn’t enough to void the agreement. The challenging spouse must prove both that the agreement is extraordinarily unfair and that he or she didn’t receive a proper financial disclosure.

Unless one spouse waives the right to receive a fair disclosure of the other’s financial circumstances, each spouse must disclose his or her assets and debts to the other. While spouses don’t have to disclose every asset to the penny, each spouse must at least have enough information about the other’s finances to make an informed decision on signing the prenuptial agreement. The best way to ensure that you’re giving your spouse a “full disclosure” of your financial circumstances is to have an accountant help you prepare a certified personal financial statement that you provide to your spouse and attach to the prenuptial agreement when you both sign.

If an agreement is so lopsided that enforcing it would require one spouse to go on public assistance or welfare to make ends meet, the court may force the higher-earning spouse to pay alimony to the lower-earning spouse, even if the agreement didn’t provide for spousal support.

When a marriage is annulled or otherwise declared void, courts usually won’t enforce a prenuptial agreement. Judges will only enforce a prenuptial agreement for a void marriage to the extent necessary to avoid an unfair result.

If you want to amend or cancel your prenuptial agreement, you and your spouse must put the changes in a writing and sign it.

If you have additional questions about Florida prenuptial agreements, contact a local family law attorney for advice.

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