It is often said that it’s best to agree on how to part ways with a partner while you are still getting along. That’s the concept behind nuptial agreements. As your attorneys, we can assist you in forming a nuptial agreement that can save you money, preserve your business and property ownerships, protect any future inheritances and avoid costly, lengthy and sometimes bitter divorce litigation.
What is the process?
There are two types of nuptial agreements: prenuptial agreements and postnuptial agreements.
Prenuptial agreements, also called “premarital agreements” in Florida, are contracts between prospective spouses that determine how issues such as alimony, real property, and the division of personal property are treated when a marriage comes to an end.
Postnuptial agreements, also called “post-marital agreements”, are agreements entered into by the parties after marriage that set forth the rights and obligations of each party in the event of death or divorce, and is entered into during the marriage. Postnuptial agreements can be used when no divorce is contemplated or when divorce is not imminent. When divorce is imminent, postnuptial agreements are referred to as separation or settlement agreements.
Although Florida has not adopted the Uniform Premarital Agreement Act, Florida statutes and case law provide certain requirements and best practices that must take place:
- The Agreement cannot be an oral agreement, it must be in writing.
- The agreement should be signed in the presence of two subscribing witnesses and notarized.
- The agreement must be entered into voluntarily; it should not be a product of fraud, duress, coercion, or overreaching.
- If a prenuptial agreement, the agreement should be entered into well in advance of the marriage date.
- Each party must disclose his or her net worth (all assets and liabilities, and the values and amounts thereof), as well as income. Disclosure should be complete, but it does not need to be exact.
If these best practices are not followed, the nuptial agreement entered into can possibly be set aside by a court.
Nuptial agreements are not only for the wealthy. Individuals who may be receiving an inheritance, who are new professionals hoping to accumulate future income and wealth, who are starting a new business, or who had an earlier failed marriage could also benefit from having a properly drafted prenuptial agreement.