in Brevard County, Florida
Written by: Kenneth E. Rhoden, Esquire
- Part 1: Prenuptial Intro
- Part 2: Preparing Prenuptial Agreements
- Part 3: Attacking Prenuptial Agreements
People who are thinking about getting married may want to enter an agreement to protect their assets and rights and to discourage litigation in the event of a divorce. These agreements are usually called prenuptial agreements, antenuptial agreements or premarital agreements. This article will discuss what may be included in a prenuptial agreement and what may not, how to make a prenuptial agreement that is enforceable and how to attack and set aside a prenuptial agreement. When dealing with a prenuptial agreement you should consult with a family law attorney experienced in handling prenuptial agreements.
The family law / prenuptial agreement attorneys at Mario, Gunde, Peters, Rhoden & Kelley, LLC. have decades of experience preparing and attacking prenuptial agreements. Our attorneys help clients all over Brevard County from Palm Bay to Titusville and everywhere in between including Viera, Merritt Island, Indialantic, Cocoa, and Melbourne.
What is a prenuptial or premarital agreement?
Florida Statute 61.079 defines a premarital agreement as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage”. It is a contract that is enforceable if properly drafted and executed. The law allows premarital agreements because they promote marriage and stability within the marriage.
What provisions can be in a prenuptial agreement?
When we talk about what can or cannot be in a prenuptial agreement we are talking about what is enforceable and what is not enforceable. Florida Statute 61.079(4)(a) sets out eight separate provisions that may be included in a premarital agreement. I will briefly discuss each paragraph:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
The most common reason people enter into prenuptial agreements is to protect the assets they have acquired prior to marriage. A well drafted prenuptial agreement will make it very clear how these assets will be handled in the event of a divorce. Real property, cash, retirement savings can all easily be protected. With the correct language more complex assets such as interests in a business, a closely held corporation, contingent assets, or litigation proceeds can be protected.
This also means you can provide that a house or car purchased during the marriage will be the sole property of one party where normally property purchased during the marriage is owned equally by both. Conversely you can provide that property owned by one spouse separately before the marriage becomes marital property.
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
Before the marriage the prospective wife says, “I love the house on Merritt Island and watching the boats on the river.” The prospective husband says, “I will never sell the house and we will hold hands and watch the boats forever.” Very romantic, put it in a prenuptial agreement and it is enforceable. So would a provision saying one party could not buy a race horse, a race car, jewelry, or invest in a gold mine.
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
A prenuptial agreement can protect a person’s estate in the event they die or divorce. Frequently couples who already have children from another marriage or relationship marry. They want to preserve their right to direct money or property to these pre-existing children. They need to engage a law firm like Mario, Gunde, Peters, Rhoden, & Kelley, LLC. that has experienced family law attorneys and attorney’s experienced in preparing wills, trusts, and in probate cases.
You can provide that if one spouse ever cheats on the other then the aggrieved spouse gets the house, car and all of the cash. More commonly the agreement will say who gets what property upon a dissolution of marriage.
- The establishment, modification, waiver, or elimination of spousal support;
Alimony can be forever waived even if one spouse is wealthy and the other has limited income. Also an obligation to pay alimony agreed to in a prenuptial agreement can be enforceable where, under law, alimony would not be imposed. Frequently agreements provide for step ups in alimony payments if the marriage fails after a certain number of years. For example, no alimony if the marriage fails within 7 years, $2,000.00 a month alimony thereafter.
“If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.”
This statute could apply where a marriage ends and one person is unable to support themselves and the other has ample assets or income. Under those circumstances a court may set aside a provision in a prenuptial agreement that waives alimony. A person who cannot support themselves due to age or disability could use the statute to try to invalidate a waiver of alimony.
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
An agreement can provide that a party will create and maintain a will giving or taking away property. For example, the prenuptial agreement could force the creation of a will that disinherits one parties’ children. Be it prudent or cruel such an agreement would be enforceable.
- The ownership rights in and disposition of the death benefit from a life insurance policy;
One spouse could agree to pay for a life insurance policy that the other spouse owns. For example, you could agree the Husband will take out and own a $1,000,000.00 policy that the Wife agrees to pay for. The policy could provide the benefit be paid to anyone the policy rules allow.
- The choice of law governing the construction of the agreement;
Normally an agreement entered into in Cocoa or Melbourne, Florida would use Florida law. However, the parties may plan to move from Brevard County, Florida to another state or country. The parties get to use the law in the jurisdiction of their choice. However, this does not mean they can chose the jurisdiction of future litigation. For example, the parties sign the agreement in Melbourne, Florida, they plan to move to California and provide that California law will be used, but they live in Cocoa, Florida for 10 years and never move to California. Under those circumstances only Florida has jurisdiction and venue is in Brevard County Florida. The court in Brevard County would use California law. There are big differences in marital law between California and Florida and using the law of one instead of the other would have a substantial impact.
- Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.
This category is as wide as the imagination or the need. Parties sometimes try to make sure a spouse’s behavior is acceptable. Provisions can include, a spouse will not drink or use drugs, no smoking cigarettes, not associating with certain people or going certain places, or the amount and types of sexual behavior. The more exotic, unreasonable or frivolous these provisions are the less they are enforceable and may stand or fall on the particular facts.
Some issues involving children can be enforceable. Religions up-bringing, schooling including college, activities the child will or will not participate in, and discipline of the children are proper subjects for a prenuptial agreement. However, the court will closely review any provisions involving children.
What terms should not be in a prenuptial agreement?
You should not include provisions in a prenuptial agreement that are not enforceable. Sometimes unenforceable provisions can cause an entire agreement to be unenforceable or enforced in an unpredictable way. A poorly drafted prenuptial agreement can encourage an attack on the agreement. A good rule to follow is, “when in doubt, leave it out.”
You cannot provide for anyone to commit any illegal act or an act that is in violation of public policy. For example it is against public policy, and unenforceable to provide that the parties must divorce in a certain period of time. Public policy is for marriages to continue as stable relationships and any provision to the contrary is unenforceable. See Florida Statute 61.079(4)(a)8.
The parties to a prenuptial agreement cannot contract away a child’s right to support. Florida Statute 61.079(4)(b) states; “The right of a child to support may not be adversely affected by a premarital agreement.” The Child Support Guidelines use the income of the parties to establish a monthly amount for child support. A prenuptial agreement cannot establish an amount of support that is less than the Child Support Guidelines call for.
A prenuptial agreement can establish an amount for child support that is higher than the law sets. A prenuptial agreement can also provide for support for a child where the law does not. Child support usually ends when the child turns 18 years of age. However, a prenuptial agreement can obligate a spouse or former spouse to continue to pay until a child is any particular age or graduates from college or any other event occurs. The agreement could also provide for support for a child that is not the parties child, for example, a step child.
Continue reading about prenuptial agreements in Part 2: Preparing Prenuptial Agreements.