What Is a Florida Prenuptial Agreement and Why Would I Want One?

Whether you call it a prenuptial agreement, prenup, or premarital agreement, these documents are simply contracts between two unmarried people that decide the terms of a divorce before the couple marries. There are many reasons why you should consider a prenuptial agreement. Among the main reasons are:

1. One or both parties have substantial assets to protect (since separate property may become marital property during the marriage),

2. To protect a child from a previous relationship's future inheritance, and

3. To remove some of the animosity and financial uncertainty from a future potential divorce.

Most clients want to know if prenuptial agreements will stand up in court. Generally, the answer is yes - as long as the agreement was prepared correctly. A prenuptial agreement could be invalidated in the following situations:

1. Failure to make a full financial disclosure,

2. Existence of fraud, duress, or coercion, and

3. Failure to make adequate provisions for the spouse with less assets.

Florida courts have consistently held that a full financial disclosure is required in order to enforce these agreements. Their reasoning is that a party cannot knowingly give up an interest in an asset if they are unaware of its existence. This situation arises when the wealthier party negligently or purposefully fails to identify a specific asset on the financial disclosure done prior to the execution of the prenuptial agreement. Usually the courts require that the non-disclosed asset be "material." As an example, a multi-millionaire's prenuptial agreement would probably not be invalided even though he forgot to list a $10,000 bank account - because the omitted asset is too small a fraction of his total assets.

The classic example of duress affecting the enforceability of a prenuptial agreement occurs when the wealthier party presents the proposed agreement to the other party to close to the wedding (days before the wedding, rather than months). In this case the courts generally take the position that the possibility of canceling a wedding (after many of the plans have been made and paid for) could cause a party to agree to the terms of a prenuptial agreement that they would otherwise reject.

Lastly, the Courts require that some provisions be made for the "poorer" spouse if a divorce occurs. What qualifies as "adequate" is determined by the Courts on a cases by case basis.

The case law that has developed around these situations in extensive. You should consult with an experienced Prenuptial Agreement Lawyer in Jacksonville FL to learn more about these agreement.