Will you marry me...and sign this prenup?

By: Felipe Mavromatis, Esquire

I am going to let you in on a little secret–prenuptial agreements, like trusts, aren’t just for the wealthy. There are a host of situations when entering into a prenuptial agreement that is not only recommended, but critical to happiness in your marriage; a lofty, but achievable goal. Yes, some of these reasons for entering into a prenup include protecting the assets you acquired before the marriage and to ensure your spouse is marrying you for love and not money.

However, a prenup can also serve to give you alimony when you otherwise would not be entitled to it and protect your spouse (and although not titled in your name, your assets) from your ex-spouse as it relates to child support and other claims.

What is a prenuptial or antenuptial agreement?

A prenuptial agreement, or as they are sometimes called antenuptial or premarital agreements, is essentially a contract between partners who are thinking of getting married setting forth the rights and obligations of each person in the event of death or divorce, and during the marriage.

Is a prenuptial agreement right for me?

With the divorce rate in the United States being astronomically high and nearly half of first marriages ending in divorce, a serious discussion should be had regarding entering into a prenup. If any of these circumstances apply, a prenup is likely “right” for you:

1. You’ve previously been divorced;
2. You have children with an ex-partner;
3. You are entering into the marriage with significant assets and there is a substantial disparity in your net-worth compared to that of your partner;
4. You are a young professional and while not wealthy, you expect an exponential increase in your income; or
5. Your spouse is unemployed or expects to be homemaker during the marriage.

While the list above is not exhaustive, if you are contemplating a prenuptial agreement, it is probably right for your relationship.

How do I have “the conversation” with my partner about it?

By “the conversation”, I don’t mean the birds and the bees, although a little of that couldn’t hurt. Communication and timing are both critical in successfully navigating the mine field that is speaking to your partner about entering into a prenuptial agreement. First, you can never have the conversation too early.

The earlier in the relationship you set expectations, the better. You shouldn’t wait until you are engaged and have a wedding date to broach the subject. You will learn that having frank conversations about finances prior to the marriage will set the tone on expectations on finances during the marriage.

If you start by asking your partner about how you’ll address your finances in the future, from investing to opening a joint account to other significant financial issues, it puts it all in a much more positive light and easier to have the conversation.

Second, let your partner know that the agreement is meant to protect BOTH PARTIES, not only you. A good prenuptial agreement will provide for both parties in the event of death or divorce. Your partner will know that even if the relationship were to fall apart, your partner would be protected in certain aspects. Give concrete examples of how.

Third, discuss any career expectations both parties will have and how the prenuptial agreement will address each partner’s respective income.

Avoiding pitfalls in your agreement 

There are certain “requirements” that need to be met in every prenuptial agreement. Failure to comply could result in your prenuptial agreement or a provision within it being set aside years in the future. You can avoid pitfalls in your agreement by adhering to the following:

• Timing of Execution. All meetings with the attorneys, the negotiations, and the execution of the prenuptial agreement should occur well in advance of the wedding in order to make it more difficult for a challenging spouse to assert duress or undue influence. See, e.g., Hjortaas v. McCabe, 656 So. 2d 168 (Fla. 2d D.C.A. 1995), in which the court set aside a prenuptial agreement executed two days prior to the wedding.
• Full Financial Disclosure. Do not try to hide your assets. Transparency and disclosure is the name of the game. Individuals who contemplate marriage are in a confidential relationship with each other. Florida case law provides that this confidential relationship gives rise to a duty to make a full and fair disclosure of the nature, extent, and value of the assets that each party holds so that the other party may make an informed decision as to what will be relinquished as a result of entering into the nuptial agreement. Doig v. Doig, 787 So. 2d 100 (Fla. 2d DCA 2001). While the disclosure should be full, fair and open, it need not be minutely detailed or exact. The basic issue is concealment, not the absence of disclosure, and the spouse may not repudiate if he or she is not prejudiced by lack of information. Hahamovitch v. Hahamovitch, 133 So. 3d 1008 (Fla. 4th DCA 2014), approved, 174 So. 3d 983 (Fla. 2015).
• Consideration. Every contract needs consideration, i.e. a bargained for exchange. In the case of a prenuptial agreement, the consideration is the marriage. Under Florida law, marriage is sufficient consideration to uphold a prenuptial agreement. O’Shea v. O’Shea, 221 So. 2d 223 (Fla. 4th DCA 1969). If the parties don’t get married, the prenuptial agreement is not valid.
• Formalities of agreement. A premarital agreement must be in writing and signed by both parties.

Take-away

A prenuptial agreement isn’t something you want to do overnight. Take the time to communicate with your partner and get guidance from an attorney–it can end up saving you tens of thousands of attorneys fees in the future. For more information, be sure to contact one our attorneys at 407-757-2883.