in Brevard County, Florida
Written by: Kenneth E. Rhoden, Esquire
- Part 1: Prenuptial Intro
- Part 2: Preparing Prenuptial Agreements
- Part 3: Attacking Prenuptial Agreements
- Part 4: Enforceable Oral Premarital Contracts
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 exa