Whether you are getting married or you are currently married, there are often circumstances, financial or personal, that may warrant the establishment of an agreement between the parties to determine how those financial or personal matters would be handled in the event the marriage terminates or in the event of death of one of the spouces. Apfelbaum Law can assist you in the discussion and preparation of pre- or post-nuptial agreements to manage your particular circumstances.
A prenuptial agreement is often a smart choice for couples who are planning to marry, and who have significant individual assets that they wish to keep separate. A prenuptial agreement will detail how assets accumulated during the marriage would be divided in a divorce, and can also protect current assets, income, and inheritance plans. Getting a prenup is also recommended when children from previous relationships are expected to inherit money from the parent getting married.
Because life is unpredictable, a prenup offers couples the opportunity to specify what will happen to their assets if they no longer want to be married. These agreements have become standard practice and, with the help of a Florida family law attorney, can be drawn up in a relatively short amount of time. Here are some things a prenuptial agreement can help you protect:
- Stocks, bonds, and stock options
- Inheritances, trusts, and wills
- Real estate and property
- Financial wealth
Another use for a prenup is to allocate spousal support payments and distribution of assets in the event of a divorce. Additionally, it can protect one spouse from the other’s risky business ventures, as well as other legal proceedings.
Some of the issues to be addressed in a pre-nuptial agreement include the following:
- What happens to any increase in value of “pre-marital” assets, and whether it is possible for these assets to ever become marital assets;
- How are assets and debts acquired or incurred during the marriage treated – usually assets and debts arising during the marriage are marital, but a pre-nuptial agreement can provide that any asset or debt in one spouse’s name remain separate rather than marital;
- What happens to retirement accounts accrued during the marriage;
- What assets does each spouse take in the event of a divorce;
- What are the provisions for alimony or for what happens to the home where you lived during the marriage, and when does one person have to move out?
It’s also important to consider what happens in the event of a spouse’s death. Florida estate laws provide for a surviving spouse to receive a minimum statutory share of assets, but a prenuptial or postnuptial agreement can waive this provision and specify what each spouse receives.
You can also add provisions about children’s issues, temporary support while a divorce is pending, and other issues for your specific situation. However, child support cannot be waived in a prenuptial agreement.
Postnuptial agreements cover the same areas as prenuptial agreements but are signed after marriage. Although they are less common, some couples find them useful after having a sudden change in one partner’s financial status, or if they simply regret not signing a prenuptial agreement.
Is Your Prenuptial or Postnuptial Agreement Enforceable?
Under Florida law, there are several grounds for finding a prenuptial or postnuptial agreement unenforceable. The most common are claims made on the basis of fraud, duress or overreaching, or if the agreement was not entered into voluntarily. Fraud is generally claimed in situations where one person deceives the other into entering the agreement, usually by hiding assets or making other false representations to get the other to sign. Duress deals with situations where one person is put under extreme pressure to sign the agreement. Overreaching is used in instances where one person convinces someone to sign a very unfair, one-sided agreement. In this case, the other party may promise to take care of you, pay for things, etc. Speaking with a qualified Florida family law attorney prior to signing a prenuptial or postnuptial agreement can often help you avoid these situations in the first place.
You and your partner should also take an appropriate period of time for both of you to review the agreement before signing. However, the agreement should be signed well in advance of the wedding.
As briefly discussed above, enforceability of a pre- or post-nuptial agreement is also affected by a full and accurate financial disclosure prior to signing the agreement. Accurate disclosure is essential to the issue of whether there was fraud or concealment, and demonstrates that each spouse was fully informed before signing the agreement. This means that if the other party withheld information about their assets—or debts—the prenuptial agreement may not be enforceable after all.
Do I Really Need a Prenup?
Sometimes people don’t think they need a prenuptial agreement if they and their partner are both in a similar financial situation, or do not have a lot of assets. However, it’s common for one partner or spouse to have more earning potential, and it’s hard to predict how either of your financial situations will change in the future. A spouse who gives up any rights in the agreement should have ample time to review the agreement with a family law attorney.
If you need assistance with your prenuptial or postnuptial agreement, or have questions about any potential legal matter, please contact Apfelbaum Law for a consultation. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida.