Prenuptial and Postnuptial Agreements

At West Family Law Group, we frequently get questions about prenuptial agreements. People wonder if they are valid in Florida. They want to know if a prenuptial agreement is worth the trouble and expense to prepare.

We encourage couples to consider a prenuptial agreement, whether they are young and just starting out or when they have children from prior relationships or business interests they want to protect. For one thing, it is much easier to negotiate terms while you are still friends and still communicating well. When couples know from the start what might happen in the unfortunate event of divorce, they save a lot of time, money, and aggravation.

But the primary reason all couples should at least consider preparing a prenuptial agreement is that the process of creating the agreement provides a strong foundation for a successful marriage by having candid discussions about finances. Instead of laying the groundwork for divorce, a prenuptial agreement can instead get people on the same page about the family's financial future.

How a Prenuptial Agreement Strengthens Marriage

The American Academy of Matrimonial Lawyers conducted studies on factors that cause marriages to break up. They determined that the two main causes of divorce were disagreements about finances and poor communication. The process of preparing a prenuptial agreement helps prevent both issues from undermining your marriage.

Florida law encourages couples to make a full financial disclosure to one another before agreeing to a prenuptial agreement. So, when couples share this information with each other and discuss the terms of an agreement, the process forces them to talk about a very important topic that is often avoided during the early days of a relationship. Each partner gains an understanding of the other partner’s financial situation with regard to assets and debts. They also learn the other partner’s approach to money. Are they a saver? Do they like to spend? It is important to know your future spouse's attitude and expectations about the family finances upfront to prevent conflict later on.

If a married couple experiences significant conflict over financial issues a postnuptial agreement may provide an effective way to avoid problems in the future.

An experienced attorney can help couples approach potentially awkward subjects, guide them to a full understanding of their financial situation, and help develop a plan for the future. To aid in the process, the Academy of Matrimonial Lawyers created a workbook called “Focus on Forever.” When you consult with us about a prenuptial agreement, a copy of the workbook is included in the price of the consultation.  We encourage you and your future spouse to work through it together.

Ensuring That a Prenuptial Agreement Stands Up in Court

Prenuptial agreements are favored under Florida law. When they are prepared properly, courts will enforce the terms. Generally, both parties to the agreement must receive full financial disclosure from the other. It is possible for one partner to waive their right to receive information about the other partner’s financial situation, but this is not a good idea. 

Florida courts will enforce the terms of a prenuptial agreement even if it works out to be a bad bargain in the end. As long as the process of creating the agreement was free from fraud and duress, the agreement should be honored in court. 

What Can Be Included in a Marital Agreement

A prenuptial agreement can include—or leave out—almost anything, so long as the terms do not violate public policy. Couples often choose to use a marital agreement to specify:

  • What will happen with debts incurred during the marriage
  • Whether a business owned by one partner will be marital or non-marital property 
  • How assets and liabilities will be handled when the marriage ends through death or divorce
  • The inheritance rights of either spouse
  • What happens to the family home if the marriage ends
  • Whether one spouse will pay alimony if the couple separates or divorces
  • What happens with each partner’s retirement plans

While you can establish expectations involving custody and support of your children with a prenuptial agreement, these expectations are not ironclad. Decisions about custody and child support are always based on the child’s best interests, and those cannot be determined contractually in advance. A couple may propose their own agreement for these issues, but a court would need to approve them at the time of divorce or separation.

There are a few things that are not allowed in a prenuptial agreement in Florida. One partner cannot waive their right to temporary support, which is a form of alimony paid during the divorce process. A partner also cannot waive their right to seek temporary attorneys’ fees. There are other ways to address these issues.

The Process of Creating a Marital Agreement Is Critical

A prenuptial agreement is not something you should suddenly present to your partner demanding a signature. A prenuptial agreement should be negotiated carefully with input from both partners.

Both of you need to review and understand your financial situations, including income, assets, and debts. You should discuss your financial plans, goals, and priorities. This can involve challenging conversations, which we can help you with. When you understand the realities and expectations of your partner, your marriage will start on a much stronger foundation.

It takes time to gather information, consider all the issues that could arise in the future, and develop an agreement that provides protection for you. A skilled family law attorney can guide you through the process and coordinate with financial advisors and other professionals to create an agreement tailored to your specific needs.

Find Out How a Prenuptial or Postnuptial Agreement Can Strengthen Your Relationship and Protect Your Future

If you are considering marriage, we encourage you to come in for a consultation to learn what Florida law says about your finances after you marry even if you are not considering a prenuptial agreement. If you decide that a prenup is not right for you, you will learn what will happen in the event of death or divorce in the absence of a prenuptial agreement.

Here at West Family Law Group, we have extensive experience in drafting, negotiating, and litigating prenuptial agreements. Come talk to us, and we'll answer your questions.