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Parties engaged to be married may have concerns about protecting certain interests in the event of a divorce. Such interests may include: preventing premarital assets from being divided, protecting the future inheritance rights of children from a previous relationship, having a predetermination of whether one spouse will pay alimony to the other spouse in the event of a divorce, or keeping business interests separate from the future spouse. In any of these circumstances, a prenuptial agreement can be a useful tool to protect premarital interests.
A prenuptial agreement (also known as an antenuptial or premarital agreement) is a written agreement or contract that both parties sign which sets forth how certain issues such as alimony and property division will be treated in the event of a divorce. Formally, the prenuptial agreement is a trade of the act of entering the marriage for the terms listed in the contract, and it goes into effect at the time the parties enter into the marriage. Some parties sign such an agreement after getting married, in which case the agreement is known as a postnuptial agreement.
As a general statement, couples in Florida can use a prenuptial agreement to enter into any agreements related to the marriage that do not violate the law. These agreements usually address the financial rights and obligations of each spouse during and after the marriage. For example, a prenuptial agreement may provide that the parties agree that neither party will be awarded alimony in the event of a divorce. However, under Florida law, parties cannot predetermine child custody or child support issues in a prenuptial agreement.
The enforceability of prenuptial agreements in Florida is determined by the Uniform Prenuptial Agreement Act. Florida adopted the Act in 2007, which contains several different rules that help a court determine whether a particular prenuptial agreement is enforceable. A spouse challenging the enforceability of a prenuptial agreement can do so by proving that:
- the agreement was not signed voluntarily;
- the agreement was signed as a result of fraud (e.g., the other spouse hid assets), duress (e.g., the other spouse threatened the challenging spouse with bodily harm), or coercion or overreaching; or
- the agreement was unconscionable when it was signed, and before signing the agreement
- the party was not given a fair and reasonable disclosure of the other spouse’s financial circumstances;
- did not waive in writing the right to receive a fair disclosure of such information; and
- did not have and could not have reasonably had knowledge of such information.
As with any contract, the success of a prenuptial agreement hinges on how well it was drafted. In the event of a divorce, the disposition of assets depends on the interpretation of the prenuptial agreement. To avoid costly litigation down the line, it is important that the prenuptial agreement is carefully drafted before it is signed by the parties. Ms. Loftus is experienced in drafting seamless prenuptial agreements. The attorneys at Loftus Law are ready and available to discuss your specific concerns.
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