While prenuptial agreements are not necessarily the most romantic gestures in the world, it helps to understand that marriage is not just an agreement to love and to cherish, it is also a financial relationship between two people who are considered one unit for economic purposes. The moment that two people marry, they begin building a “marital estate.” While property brought into a marriage is considered the sole property of one spouse, any value that the property accrues during the marriage is considered property of the marital estate. This means that a lucrative business that gains value during your marriage can have a clouded title until a settlement is reached. Because no one wants to be in that situation, prenuptial agreements are sometimes necessary, and they can work for both spouses.
Barriers to Prenuptial Agreements in the State of Florida
Prenuptial agreements are generally enforceable although some provisions may not be. In other instances, the entire agreement may be voided if the contract is considered illegal, immoral, or places one or the other spouse into destitution. Further, prenuptial agreements may not have provisions related to child support or child custody. The court will not enforce any agreement that limits the amount of child support or automatically assigns custody to one or the other spouse.
In other words, premarital agreements may not include:
- Any provision relating to children
- Any unethical or immoral provision
- Any provision establishing the duties and requirements of either party
Expectations such as “Husband will provide flowers for wife on a daily basis if wife maintains a bodyweight of fewer than 140 lbs,” or, “Wife must provide sexual favors on a daily basis or husband can have extra-marital affairs,” cannot be enforced.
All this stuff has been tried and the court refuses to enforce them. So even if your prenup contains a clause stating that your wife must provide sexual favors on demand, the court will not enforce the provision or consider it grounds for divorce or extra-marital affairs.
What Can Prenuptial Agreements Include?
Premarital agreements generally include provisions such as the following:
- Provisions establishing spousal support/alimony payments at the beginning of the marriage are usually enforceable unless the terms of the agreement would leave one spouse destitute.
- Protecting business interests from title clouding is one the most common provisions you will find in a prenuptial agreement. One spouse wants to protect their interest in a business they operate, however, even if they had the business before the marriage, the value accrued during the marriage is property of the marital estate and hence subject to equitable distribution. In other words, the accrued value is property of the marital estate or both spouses. This can be avoided with a prenuptial agreement.
- Protecting specific assets - You may want to protect specific assets from equitable distribution. This can be done with a well-worded prenuptial agreement.
- Assets are not the only things divided in a marriage. A prenuptial agreement can also establish how debts are divided once the divorce is finalized.
Can I Challenge a Prenuptial Agreement?
Premarital agreements are legally binding contracts. Therefore, challenging an agreement that was signed prior to the marriage requires that a challenger prove that the prenuptial agreement is unenforceable under the law. Otherwise, the terms of the agreement will be adhered to by the court. The court will void a prenuptial agreement when:
- The terms of the agreement are unenforceable
- The agreement was not entered into voluntarily
- Either party withheld financial information or otherwise defrauded the other party, lied to them, or reached the agreement in bad faith
It is, for the most part, quite difficult to challenge a prenuptial agreement. However, a Tampa divorce attorney can ensure that the agreement or specific provisions of the agreement are sound, valid, and enforceable absent grounds to nullify the agreement entirely.
Modifying a Prenuptial Agreement
The best reason to enter into a prenuptial agreement with your spouse is to protect your equity in a specific property, usually a business, that you are the sole owner of. Even in cases in which one spouse makes considerably more than the other, the spouse with their own business may want to protect their interest so that it does not end up “property of the marital estate.” What happens if the business shuts down or the spouse opens up a new one?
In order to protect their equity in the new business, a new prenuptial agreement will need to be drafted to ensure that the property remains a part of the spouse's personal estate as opposed to the marital estate.
Do I Need a Prenuptial Agreement?
Many folks who would otherwise not want a prenuptial agreement for fear of offending their future spouse, may have good cause for one. While we are lawyers and we always see the potential pitfalls of not having terms in place for all possibilities, we know that many clients suffer unnecessary stress related to a business that they have built from the ground up that may now be subject to distribution under the rules of the Florida law. While most spouses can negotiate their way out of a situation like that, a prenuptial agreement can prevent them from having to. In other words, they won't have to offer other assets or alimony for their spouse to sign off on giving them 100% title to their business.
So while prenuptial agreements may not be among the most romantic gestures, it is better to have one and not need one than to need one and not have one.
Talk to a Tampa Family Law Attorney Today
If you are concerned about bringing a valuable asset into your marriage, one way to protect that asset is with a prenuptial agreement. In fact, there are all sorts of good reasons to enter into a prenuptial agreement, even if you are not ultrarich. Call the Tampa family law attorneys at Florida Divorce Law Group today to learn more about how we can help.