Prenuptial Agreements

Prenuptial agreements are contracts entered into by parties in contemplation of marriage. Prenuptial agreements typically outline the rights and obligations of each spouse.

Prenuptial agreements are governed by the law of contracts. For prenuptial agreements, the parties’ marriage is the only consideration required. If the parties execute a prenuptial agreement, and do not marry, then the prenuptial agreement is not valid.

What Are Things That May Be Waived In A Prenuptial Agreement?

Prenuptial agreements allow parties to waive certain rights and interests in the event of a divorce.

For instance, alimony may be waived. Parties may include a provision in their prenuptial agreement outlining their obligation or right to alimony. However, an alimony waived must specifically be waived.

The right to certain marital property may also be waived. For example, one party may outline their “non-marital asset” shall remain their individual asset according to the terms of the prenuptial agreement. However, the other spouse is nevertheless entitled to an equitable distribution of the increase in value or appreciation that results from the efforts of the parties or from marital funds or both during the marriage. However, the parties can specifically waive this in their prenuptial agreement.

Parties may also waive the right to post-dissolution attorney’s fees, costs, and suit monies.

What Are Things That May Not Be Waived In A Prenuptial Agreement?

While prenuptial agreements are governed by contract law, Florida public policy prohibits some rights and interests from being waived.

A party cannot waive the right to temporary support. Temporary support includes both pre-dissolution alimony and attorney’s fees, costs, and suit monies. Although the parties may waive spousal support in a prenuptial agreement, a party may still be elegible to receive support on a temporary basis, until the entry of a Final Judgment dissolving their marriage.

Parties cannot waive the right to pre-dissolution attorney’s fees, costs, and suit monies. A prenuptial agreement waiving or limited attorney’s fees to a spouse who needs them in a pending dissolution action violates public policy.

The right to child support cannot be waived. Child support is a right that belongs to the child. That right cannot be contract away by the parents. The parties also cannot waive the best interest standard as it pertains to child custody. The best interest standard must be applied when determining timesharing. However, parties can waive the substantial change in circumstance standard for any future modification case.

Approximately 40-50% of first-time marriages ultimately end in divorce. Prenuptial agreements may be seen as taboo, but a prenuptial agreement should instead be seen (and used) as a safety precaution. Having a prenuptial agreement prior to marriage may save you time and money. Executing a prenuptial agreement does not guarantee divorce.

Before you get married, contact our office to discuss a prenuptial agreement and how marriage will effect your personal property, investment accounts, real estate.