Prenuptial / Antenuptial / Premarital Agreements
 A prenuptial agreement is an agreement between prospective spouses made in contemplation of marriage. The prenuptial agreement does not become effective until the marriage of the parties.
Prenuptial agreements are contracts executed by two parties prior to their wedding, that define rights, duties, and obligations of the parties during marriage and in the event of death or divorce. Such agreements may also be referred to as antenuptial or premarital agreements.
Some concepts often addressed in prenuptial agreements and permitted by Florida law are the following:
- Designation of each prospective spouse's separate or premarital assets and liabilities, and whether or not those assets and liabilities will remain nonmarital or become marital depending upon how they are titled, utilized and enhanced during the marriage
- Division of real property, income and assets acquired and liabilities incurred during the marriage
- Designation of how the real property, income and assets acquired and liabilities incurred during the marriage will be titled
- Determination of joint and separate living expenses and how they will be paid during the marriage
- Entitlement to and amount of spousal support, also known as alimony
- Life insurance rights
- Estate planning tools like wills and trusts
• Choice of which jurisdiction's law will apply to the agreement
In Florida, the drafting of a prenuptial agreement is governed by law, the:
Uniform Premarital Agreement Act (UPAA)
Pursuant to the UPAA:
- The agreement must be in writing and signed by both parties
- The terms of the prenuptial agreement cannot conflict with criminal law or Florida public policy
- Child support may not be predetermined or waived in the prenuptial agreement
- Revocation of or modifications to the agreement after marriage must be in writing
- Execution must be voluntary
- The agreement may not be influenced by fraud, duress, coercion or overreaching
- The agreement may be held unconscionable if before entering into the contract, the other party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party and that party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided or did not already have or could not have an adequate knowledge of the property or financial obligations of the other party
- If the parties agree to a level of spousal support that would impoverish one party, making him or her liable for public assistance, the court may award additional alimony necessary to avoid such public assistance
When drafting a prenuptial agreement it is important to disclose all of your assets and liabilities to your prospective spouse before finalizing the agreement or, getting a clear and explicit written waiver of such disclosure from your prospective spouse.
It is best to do so formally, in writing, and preferably as an addendum to the actual prenuptial agreement so that there is no dispute in the future that proper disclosure or waiver did in fact take place. Failure to do so could invalidate the prenuptial agreement. It is also important that the agreement is only entered into after both parties have had ample time to properly review the agreement, negotiate the terms and review the agreement with counsel of their own choosing.
There is extensive Florida case law regarding the enforceability and invalidity of prenuptial agreements.
Failure of either prospective spouse to comply with the requirements of the UPAA and other applicable Florida law could lead to a court invalidating some or all of the provisions of the prenuptial agreement. Accordingly, it is strongly recommended that an individual contemplating the use of a prenuptial agreement consult with an experienced family law attorney.
Postnuptial Agreement
A postnuptial agreement is a voluntary marriage contract between spouses that is created after a wedding has occurred. A postnuptial agreement is oftentimes very similar to a prenuptial agreement, as it often addresses the same financial concerns described above.
Spouses agree to enter into a postnuptial agreement for a number of reasons. If the parties are having marital discord but want to attempt to save their marriage, one or both parties may want to resolve financial differences before they attempt reconciliation or the repair of their marriage. For some, the only marital difficulties the parties have are financial and the postnuptial agreement serves as a roadmap of how the parties intend to manage their finances in the future.
Others obtain a postnuptial agreement in anticipation of an inheritance or family gift of a large asset or business interest that their family does not intend to be shared with the spouse. Others request a postnuptial agreement when their spouse is engaging in reckless behavior that may affect the parties’ assets such as gambling or drug use.
Whatever the reason, the purpose of the postnuptial agreement is to resolve how the parties will address and divide assets and liabilities, how they will treat income earned during the marriage and how they intend to provide for the support of their spouse in the event of divorce or their death.
Although the parties can include language to address the support of and timesharing with their children, Florida Courts do not have to enforce any provisions relating to the care and maintenance of minors if it not found to be in the minor child’s best interest or if it would be a violation of Florida law.
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