Do I Need A Prenup?

Valentine’s Day has passed! Did you get engaged? Congratulations! Now it’s time to plan: location, attire, flowers, food and not to mention what comes after. Will you buy a house if you don’t already have one? Get a joint credit card or consolidate banks? As you start to think about this next phase in your life, there is another important decision you must consider: a prenup, or prenuptial agreement. 

What is a Prenuptial Agreement? 

A prenuptial agreement, commonly called a “prenup”, is an agreement a couple signs before getting married that determines proprietorship of assets that they may have independently of each other, and, in the case of a divorce. A prenup may also lay out the terms of spousal support and alimony payments. Prior to signing a prenup agreement, it is important to make sure that it has been carefully drafted and protects both you and your spouse’s best interests. It is also recommended that each spouse hire his or her own attorney, so as to ensure that both of your interests are represented fairly. This is especially true if the money and property at stake are significant. But no matter how little or how many assets a couple has, a prenuptial agreement is recommended for all couples. 

During the process, you and your spouse will also be required to make a full financial disclosure and a disclosure of debts and assets. Full disclosures are beneficial because it gives each spouse an understanding of the other’s financial situation. This will make it easier to draft a prenup that will fairly protect both spouses. 

Why Should you get a Prenuptial Agreement? 

Even if you are happily engaged and are hoping for a lifelong marriage, you should still plan ahead. When you enter into a marriage it is likely you and your spouse will buy a house together, get a joint credit card, open joint bank accounts, and make other significant purchases together. These assets will be considered “marital assets.” Under Florida law, in the case of a divorce, who will get what asset is decided by a judge.  

That is why couples who enter into a prenup are at an advantage. In a prenup, you and your spouse can agree on issues such as who will keep the marital home and how joint accounts will be split ahead of time. You can also include a provision in your prenup to protect your separate property or assets acquired prior to your marriage. This way, in the case of a divorce, your separate property or assets can remain with you and will not be subject to distribution. 

You and your spouse may also include provisions in your prenup regarding alimony payments. For example, one spouse may waive an alimony award in a prenup. This is advantageous because court decisions regarding issues such as alimony or distribution of assets may not always be consistent with either spouse’s wishes. The other benefit is if you have a prenup and you initiate divorce proceedings, the process will be much smoother because issues regarding assets, property, and alimony would already be settled. Overall, a well-executed prenup can save you time and money in the case of a divorce.   

What Can’t a Prenup do? 

There are some details which couples cannot negotiate in a prenup. A Florida prenup cannot determine child custody rights or child support payments. Under Florida law, child custody and support will always be determined based on the best interest of the child, rather than that of the parents. Because several factors go into determining what will be in the best interest of the child, custody and support orders are determined on a case by case basis. Accordingly, couples cannot predetermine custody issues in their prenup, meaning that if one spouse waives child support payment or if the couple comes up with a parenting plan to split custody in the case of divorce, these plans will be subject to change at the will of a judge.

In Conclusion

Generally, a Florida court will enforce a prenup agreement. However, prenup agreements may be challenged. A spouse can waive rights to alimony or marital property so long as the spouse did so voluntarily and with full disclosure. But a spouse may ask a court to set aside a prenup if it was improperly or fraudulently executed.

These reasons are why it’s important to consult with a Florida Family and Estate Planning Attorney when drafting and executing a prenup agreement. The Florida Probate & Family Law Firm has a team of experienced Probate, Family and Estate Planning attorneys located in Coral Gables, Florida. As attorneys who specialize in Family Law matters, we understand how important these documents can be to your individual well being. With our expertise, we could help advise you in drafting a prenup that will protect your interests and save you the stress and costs of litigating issues such as property distribution in the case of a divorce. If you and your prospective spouse are considering entering into a prenup, contact us to set up an appointment to evaluate your options.