➢ What is a prenuptial agreement?
➢ Should I get a prenuptial agreement?
➢ Do I have to sign the prenuptial agreement that my soon-to-be-spouse gave to me?
Although most people who think about getting married think about love, there are legal implications that have to be considered when a couple gets married. Under Florida law, marriage is viewed as a contract that is entered into by two consenting adults. Therefore, as any other contract, marriage comes with a variety of rights and obligations. A marital contract, specifically a premarital or prenuptial agreement, can affect those rights and obligations.
Marital Agreements - Explanation
The first step when discussing marital agreements is to understand the different types of marriage contracts: (1) premarital agreements (2) postnuptial agreements; and (3) marital settlement agreements. Premarital agreements are those entered into in contemplation of marriage, while postnuptial agreements are those entered into during the marriage. Marital settlement agreements refer to an agreement entered into once a couple no longer desires to be married and settle without going to trial.
Premarital agreements (AKA “prenuptial agreements” or “prenups”) will be the focus of this blog entry, since many individuals I have encountered are usually confused on this topic. A premarital agreement can include as many or as little provisions as the parties desire. The following is a non-exclusive list of the matters that a premarital agreement can include: equitable distribution or division of assets and debts, spousal support or alimony, parental responsibility, child support, insurance, and testamentary provisions.
Once the parties to a marriage enter into a premarital agreement, the agreement must be ratified a judge. Premarital agreements are subject to interpretation by a judge, like any other contract, should a party later require the courts to enforce the agreement.
Effect of Premarital Agreement During Dissolution of Marriage Proceedings
If a married couple has an enforceable premarital agreement, and in the unfortunate event of filing dissolution of marriage is required, the couple will likely be able to settle their dissolution of marriage case without going to trial. There will be minimal involvement with the courts, which means that the former couple will have more control over the outcome of the dissolution of their marriage. Should the unfortunate happen, there is a sense of certainty or predictability that the parties will have when entering into a marriage. Further, a premarital agreement saves time, money and most importantly, in many situations, it allows the parties to go their separate ways in a non-confrontational manner. By not going to trial, it allows the formerly married couple to achieve closure.
One thing that must be mentioned is that pre-marital agreements can be contested by one of the spouses when the parties decide to dissolve the marriage. Sometimes, there is a valid argument for contesting a premarital agreement—the agreement must be fair and reasonable or the contesting party was not given full and frank disclosure of the other spouse’s worth before signing. Also, the premarital agreement must be entered into freely and voluntarily. Other times, there is no legal reason for contesting the premarital agreement—but rather there is just an angry or resentful spouse. For this reason, it is important that an attorney be involved when one is considering entering into a premarital agreement, so that the agreement may be well drafted. A well-drafted agreement will not reduce the possibility that a spouse will contest the agreements, but it will reduce the possibility that a spouse will win the contest.
Negotiation a Premarital Agreement
It’s hard to talk about marriage and a premarital agreement as if it is a business agreement, but that’s exactly the approach you should take. However, a premarital agreement should not be viewed as evidence of a lack of trust in the partner or lack of faith in the relationship. It is simply protection against the unlikely and unforeseen. In a way, it is similar to auto insurance—you get auto insurance not because you plan on getting into an accident or believe that you are a bad driver, but rather just in case you are involved in a car accident. The same goes with a premarital agreement—it is an “insurance policy” on the legal issues of the marriage.
Another analogy would be writing a will. In the state of Florida, if a person passes without having created a will, the state of Florida, through legislation, decides the outcome of a deceased person’s property. Premarital agreements work in a similar fashion—if there is no agreement, through legislation and judicial discretion, the state of Florida would decide the outcome on many issues for a married couple, including their assets and debt, child support, visitation and so on. Just as it is recommended that one should create a will in order to have control over one’s estate at death, it is also recommended that soon-to-be married couples enter into a premarital agreement in order to limit the State of Florida’s involvement in the many issues that arise when a marriage “dies” as well.
When entering into a premarital agreement, consider the following strategies:
-Don’t wait until the last minute – Don’t wait to discuss a premarital agreement with your soon-to-be spouse—it should be explored as early as possible. If the premarital agreement is offered to your soon-to-be spouse too close to the wedding, there may be grounds to challenge the agreement if the marriage ends in dissolution.
-Try to act logically and not emotionally – the parties should agree to act logically so that an agreement will come easier and neither party will feel hurt by the discussion.
-Consult an attorney – you should consult with a legal professional to understand the different kinds of issues that might be covered in a premarital agreement. The better informed you are, the easier it will be for you to explain things to your intended. You should also suggest that your spouse review the premarital agreement with an attorney as well.
Although most people who think about getting married think about love, there are legal implications that have to be considered when a couple gets married. Under Florida law, marriage is viewed as a contract that is entered into by two consenting adults. Therefore, as any other contract, marriage comes with a variety of rights and obligations. A marital contract, specifically a premarital or prenuptial agreement, can affect those rights and obligations.
Marital Agreements - Explanation
The first step when discussing marital agreements is to understand the different types of marriage contracts: (1) premarital agreements (2) postnuptial agreements; and (3) marital settlement agreements. Premarital agreements are those entered into in contemplation of marriage, while postnuptial agreements are those entered into during the marriage. Marital settlement agreements refer to an agreement entered into once a couple no longer desires to be married and settle without going to trial.
Premarital agreements (AKA “prenuptial agreements” or “prenups”) will be the focus of this blog entry, since many individuals I have encountered are usually confused on this topic. A premarital agreement can include as many or as little provisions as the parties desire. The following is a non-exclusive list of the matters that a premarital agreement can include: equitable distribution or division of assets and debts, spousal support or alimony, parental responsibility, child support, insurance, and testamentary provisions.
Once the parties to a marriage enter into a premarital agreement, the agreement must be ratified a judge. Premarital agreements are subject to interpretation by a judge, like any other contract, should a party later require the courts to enforce the agreement.
Effect of Premarital Agreement During Dissolution of Marriage Proceedings
If a married couple has an enforceable premarital agreement, and in the unfortunate event of filing dissolution of marriage is required, the couple will likely be able to settle their dissolution of marriage case without going to trial. There will be minimal involvement with the courts, which means that the former couple will have more control over the outcome of the dissolution of their marriage. Should the unfortunate happen, there is a sense of certainty or predictability that the parties will have when entering into a marriage. Further, a premarital agreement saves time, money and most importantly, in many situations, it allows the parties to go their separate ways in a non-confrontational manner. By not going to trial, it allows the formerly married couple to achieve closure.
One thing that must be mentioned is that pre-marital agreements can be contested by one of the spouses when the parties decide to dissolve the marriage. Sometimes, there is a valid argument for contesting a premarital agreement—the agreement must be fair and reasonable or the contesting party was not given full and frank disclosure of the other spouse’s worth before signing. Also, the premarital agreement must be entered into freely and voluntarily. Other times, there is no legal reason for contesting the premarital agreement—but rather there is just an angry or resentful spouse. For this reason, it is important that an attorney be involved when one is considering entering into a premarital agreement, so that the agreement may be well drafted. A well-drafted agreement will not reduce the possibility that a spouse will contest the agreements, but it will reduce the possibility that a spouse will win the contest.
Negotiation a Premarital Agreement
It’s hard to talk about marriage and a premarital agreement as if it is a business agreement, but that’s exactly the approach you should take. However, a premarital agreement should not be viewed as evidence of a lack of trust in the partner or lack of faith in the relationship. It is simply protection against the unlikely and unforeseen. In a way, it is similar to auto insurance—you get auto insurance not because you plan on getting into an accident or believe that you are a bad driver, but rather just in case you are involved in a car accident. The same goes with a premarital agreement—it is an “insurance policy” on the legal issues of the marriage.
Another analogy would be writing a will. In the state of Florida, if a person passes without having created a will, the state of Florida, through legislation, decides the outcome of a deceased person’s property. Premarital agreements work in a similar fashion—if there is no agreement, through legislation and judicial discretion, the state of Florida would decide the outcome on many issues for a married couple, including their assets and debt, child support, visitation and so on. Just as it is recommended that one should create a will in order to have control over one’s estate at death, it is also recommended that soon-to-be married couples enter into a premarital agreement in order to limit the State of Florida’s involvement in the many issues that arise when a marriage “dies” as well.
When entering into a premarital agreement, consider the following strategies:
-Don’t wait until the last minute – Don’t wait to discuss a premarital agreement with your soon-to-be spouse—it should be explored as early as possible. If the premarital agreement is offered to your soon-to-be spouse too close to the wedding, there may be grounds to challenge the agreement if the marriage ends in dissolution.
-Try to act logically and not emotionally – the parties should agree to act logically so that an agreement will come easier and neither party will feel hurt by the discussion.
-Consult an attorney – you should consult with a legal professional to understand the different kinds of issues that might be covered in a premarital agreement. The better informed you are, the easier it will be for you to explain things to your intended. You should also suggest that your spouse review the premarital agreement with an attorney as well.
