Prenuptial Agreements in Florida
Can a prenup protect future earnings?
Prenuptial agreements (also called Antenuptial Agreements) can protect assets, protect from liabilities, and protect certain types of future earnings. Prenups must carefully follow established law or they can be invalidated. Certain types of future obligations cannot be decided by a prenup – such as the amount of child support. Ideally, a completed Florida Prenup Agreement, drafted by a competent prenup attorney, should be in the hands of the other future spouse or his/her attorney several months before the marriage.
What is the Definition of a Prenup Agreement Definition
There are several different names for this type of agreement including: antenuptial agreement, prenup, and premarital agreement. They all mean the same thing, an agreement that a couple signs before the marriage that determines who-gets-what in the event of a divorce. Prenup agreements are important for people with extensive assets and a critical issue for the other spouse as well. Prenuptial agreements are the subject of movies, conversation, and celebrity news. These agreements are very important to one or the other spouse, and must be drafted and executed with great care.
Prenup Agreements Invite Extended Court Fights
Large amounts of money and time are frequently devoted to fighting against, defending, and interpreting prenuptial agreements. The agreements are essentially not much different than contracts. But marriage contracts are very special types of contracts and have many complex requirements not normally part of a normal contract. If there is significant money referenced in the prenup agreement, it is almost a given that attorneys on both sides will devote significant resources in a divorce if the prenup does indeed govern the divorce.
Because of the great possibility of extended court fights, it is extremely important to carefully draft the prenup, to follow all the latest court requirements, and to strictly adhere to a painstaking process before either party signs the prenup. Some of the biggest, most expensive court fights are over $20 prenuptial agreements, purchased in an office supply store. The more money at stake – the more effort, money, and time attorneys will spend trying to break or defend the prenup. In high asset divorces that fight is inevitable. But a properly drafted and executed prenup can shorten the potential fight.
The Most Important Questions to Answer for Both Future Spouses
- What is a prenup ? You would be surprised at the number of people that sign a prenup agreement and have no idea of its effect. It is important to both spouses that this question is understood.
- What Assets Do I Want to Protect? Again, both spouses need a full understanding of this issue. You must weigh the potential marital friction against the totality of the assets you want to protect. The other potential spouse must decide the marriage is worth it.
- Should I Sign a Prenup Agreement? Many people ponder this very issue. Only your conscience, and your desire to marry can determine this answer.
The Most Important Things To Do Before Signing a Marital Contract
1. Retain a prenup agreement attorney.
This is essential to protect both future spouses, and is also essential to the future enforceability of the agreement. Many future court arguments can be based on the fact that only one spouse hired an attorney. Many savvy spouses may understand the prenup attorney only represents the other spouse, but that understanding may “shift” at the time of a future divorce. The enforceability of an agreement may completely hinge on both sides having an attorney. Plus the other benefit: a good prenup lawyer can help you negotiate an agreement that fits your future plans.
2. Be sure to get a full, accurate list of everyone’s assets as they stand at the time of the agreement.
The failure of both sides in carrying out this essential requirement has created great numbers of prenuptial agreements to fail at a later divorce. You must have an accurate or reasonably accurate list of assets and liabilities available to both sides, well before the agreement is signed. If one spouse expects or is ready to earn a high income, that fact should be disclosed as well. You cannot go overboard in your disclosure. The more complete the disclosure, the more likely the agreement will stand up to scrutiny in the future.
How Long Before the Marriage Should the Prenup be Complete
Ideally, a completed Florida Prenup Agreement, drafted by a competent prenup attorney, should be in the hands of the other future spouse or his/her attorney several months before the marriage. That is impractical in many situations. But the longer it is done in advance, the better things will be later on. One day before the marriage is certainly too late. One year before the marriage is way too early. You should shoot for a reasonable time for both parties to sign the agreement before the marriage ceremony. One month is probably comfortable, and a good figure for possible future court battles. A rule of thumb: the more assets involved, the more “heads up” the other party needs.
“A Fool For An Attorney”
There is a very old saying: A man who is his own lawyer has a fool for an attorney. That is not more true than in the situation of a prenup agreement. Many people with significant assets put together their own prenup agreement. Or they download a template for free off the internet. Even worse, some people purchase a $10 prenup kit from an office supply store. They negotiate the agreement, convince their spouse to sign it, and then they squirrel away a copy for the future.
There are no specific statistics to point to but the experience of most divorce attorneys is that $10 prenups tend to not be worth the paper they are written on. Or the other scenario is that a $10 prenup is so weak that someone must spend $50,000 defending it. Someone with several hundred thousand dollars of assets that spends $10 on a prenup has exactly that: a fool for an attorney.
The process of creating a prenup agreement is almost more important than the agreement. It is essential that your attorney follow all the steps laid out by Florida Supreme Court cases involving prenups.
Defending or Attacking a Prenup Agreement
Duress arguments are the most frequent reason cited in someone’s quest to throw out a prenup. Duress arguments are also some of the least successful arguments. However, there are circumstances that may convince a court that a spouse was under duress during the time they signed the prenup agreement. Some typical reasons are extremely short deadlines between the time the prenup is presented, and the time of the marriage. Also, lack of funds, lack of an attorney, and an imbalance in sophistication can be pointed to as grounds for a duress argument.
Your prenup attorney can help navigate those waters long before the marriage. If you intend to attack and agreement, a good prenup attorney can figure out where all the weaknesses are.
Unfairness and Lack of Proper Disclosure
People that fail to disclose all of their assets before an executed prenuptial agreement are fooling themselves. That is the most frequent method divorce attorneys use to argue for invalidation of the prenup. The official name for the future motion is a “Motion to Set Aside the Prenuptial Agreement.” If you did not make proper disclosure, you will become very familiar with that term.
An unfair pre-marital contract (prenup) is not a reason to later invalidate the prenup, unless the initial financial disclosure is sorely lacking. A common theme throughout Florida law is that courts will not protect people against making stupid or unwise decisions. So fairness is not normally an issue.
The Importance of an Experienced Prenuptial Agreement Attorney
You get what you pay for. Money saved right now may not hurt you until ten years from now. And then it will be too late. A good prenup attorney is an investment, not an expense.
If you are on the side of attacking the prenup agreement during a divorce, it is very important to retain an aggressive, creative, and knowledgeable attorney to explore all possible angles and weaknesses of the prenup. A good prenup attack-attorney also happens to be an excellent choice to defend a prenup.
Attorney Howard Iken – Law Firm of Ayo and Iken
Mr. Iken has paid special interest over the years to prenuptial (antenuptial) agreement drafting, and later litigation. If you have an agreement you would like to explore attacking, Mr. Iken would be happy to assess your chances for a very reasonable consultation fee. Mr. Iken also prides himself on meticulous attention to prenuptial agreement drafting and creation.
We have offices in Tampa, Clearwater, Orlando, Wesley Chapel, New Port Richey, and Lakeland. Call us if you need a realistic, honest evaluation of a prenuptial agreement that needs to be created, or is already in place.
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