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Specificity in Pre and Post Nuptial Agreements is Critical

Prenuptial (or premarital) and postnuptial agreements have a long history in Florida, and can be helpful to couples in avoiding complications and unnecessary battles. But the devil is in the details: it is important to have an experienced family law attorney to advise and guide you in the process. Key terms of these agreements cannot be left ambiguous.

For example, it is important to know that, under Florida law, certain rights cannot be waived via contract (or a pre- or postnuptial agreement), such as spousal support during a marriage and child support, custody, and visitation. In addition, Florida abides by equitable distribution in the event of divorce or death; in other words, an equitable distribution of property and assets of the marriage based on the circumstances of the parties.

Every Word Counts

Florida courts have also found that even very specific language used in these agreements does not necessarily mean that a spouse has waived their right to certain assets in the other spouse’s name. For example, in a case where the prenuptial agreement stated the following: “[spouse] agrees to remise, release and quitclaim all right, title and interest they might have or otherwise could have to any property owned prior to the marriage by [other spouse] and specifically waives any and all claim or claims which they might have in and to the real and personal property of [other spouse,” the court found that the agreement did not specifically address the enhancement value of property, and thus that value would be subject to equitable distribution.

Wording of these agreements is critical, and can make the difference, should there be disputes at some point. Even one simple mistake can invalidate the entire agreement.

There are very specific requirements that must be included in these agreements, based on what type of agreement it is and the specific circumstances. These requirements include:

  • Complete financial disclosure: Concerning the nature, extent, and value of the assets that each party holds (postnuptial agreements only)
  • Net worth and income
  • Consideration: For a prenuptial agreement, this is the marriage itself. For a postnuptial agreement, mutual promises have been considered sufficient consideration
  • Execution formalities: If the agreement contains testamentary provisions, it must be executed in conformity with the requirements for a last will and testament (witnesses, signing, etc.)
  • Any relevant waivers of equitable distribution of property, interest in marital earnings, alimony, homestead property, interests in retirement plans, etc.

When Is the Right Time?

As Florida starts to progressively recognize new relationships and same-sex marriage is legalized, it is crucial that couples understand the legal ramifications of these new territories, and realize that financial planning is crucial for everyone. With new relationships comes new agreements, and more and more couples are seeking both prenuptial and even cohabitation agreements in the absence of marriage. Many would be surprised to find that these agreements are best formalized while the relationship is working, as doing so can keep financial concerns from otherwise destroying a relationship that would have worked out.

Seek Experienced Counsel

It is critical that you obtain experienced, independent legal representation in drafting these agreements. At the law office of Sandra Bonfiglio, P.A., our Fort Lauderdale attorneys deal with all areas of family law – divorce, child custody, pre and postnuptial agreements, legal separation, and adoption. Reach out to us today for a consultation on your case.

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