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What is a prenuptial agreement?

 

Prenuptial agreements, also known as prenups, are becoming more common for parties interested in protecting their assets before marriage. A prenup was once thought to only be an option for the exceptionally wealthy, but now many people utilize them regardless of financial situation. In fact, anyone with assets and/or debts may agree to a prenuptial agreement.

The most obvious benefit of a prenuptial agreement is that it can help protect your assets and shield you against taking on your spouse’s debts upon divorce. A prenuptial agreement can also help parties identify what assets or debts each party is bringing to the marriage. Before you enter a prenuptial agreement, it is important that you understand its basic legal components.

 

What is a Prenup and What can be Included in One?

 

Under Florida law, a prenuptial agreement is “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”  The law further outlines the items that parties can agree to within a prenuptial agreement. They include the following:

 

  • The rights and obligations of each party in regard to any of the property of either or both of them;
  • The right to buy, sell, use, transfer, exchange, lease, mortgage, or otherwise manage and control property;
  • The disposition of property upon separation, divorce, death, or the occurrence or nonoccurrence of any other event stated;
  • The establishment, modification, waiver, or elimination of spousal support;
  • The making of a will, trust, or other arrangement in order to carry out the provisions of the agreement;
  • The ownership rights and disposition of the death benefit from a life insurance policy;
  • The choice of law governing the construction of the prenuptial agreement; and
  • Any other matter that is not in violation of either the public policy of Florida or a law imposing a criminal penalty.

 

However, an agreement cannot determine child custody or child support arrangements upon a divorce. These decisions must be determined either by the parties during the divorce proceedings or by a judge.

 

Is the Agreement Valid?

 

Even if a prenuptial agreement includes the items allowable, a court will not enforce it if a party proves the following:

 

  • The party did not execute the agreement voluntarily;
  • The agreement was a product of fraud, duress, coercion, or overreaching; or
  • The agreement was unconscionable when it was executed and, before execution, that party:
    • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
    • Did not voluntarily or expressly waive, in writing, any right to disclosure of the property or financial obligation of the other party; and
    • Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Get Help From an Expert

 

The team at the Judy-Ann Smith Law Firm can help you in the area of prenuptial agreements. We understand the complexities and emotional considerations involved during this time. If you or your fiancé are considering a prenuptial agreement, please contact the Judy-Ann Smith Law Firm.