A Florida antenuptial agreement (also called a prenuptial agreement) is similar to a postnuptial agreement, with the exception of timing. An antenuptial agreement is executed before the marriage and a postnuptial agreement is executed during the marriage. In Florida, antenuptial agreements are not void automatically, the agreement will be upheld unless it is defective. However, you should be cautious and seek counsel from a divorce attorney in Tampa for assistance with the agreement. If not properly prepared you may face unwanted consequences.
Requirements for a Florida Antenuptial Agreement
Under Florida divorce law, the agreement must be made in good faith and free from fraud, deceit, coercion, and trickery. See https://scholar.google.com/scholar_case?case=18078021809031220784&q=%22Baker+v.+Baker%22,+%22394+So.+2d+465%22+(Fla.+Dist.+Ct.+App.+4th+Dist.+1981)&hl=en&as_sdt=40006 Baker v. Baker. Additionally, since a Florida antenuptial agreement is treated as a contract there must also be valid consideration. Consideration describes something that a party will give up or receive as a basis of the agreement. While this is true of antenuptial agreements, courts have found that the marriage itself can be sufficient consideration for the antenupital agreement. See https://scholar.google.com/scholar_case?case=9493303125363277633&q=Posner+v.+Posner,+233+So.+2d+381+(Fla.+1970).&hl=en&as_sdt=40006 Posner v. Posner. Consideration can be a confusing topic, you should contact a Tampa divorce attorney for clarification,
Florida Antenuptial Agreement and Divorce
A Florida antenuptial agreement can be helpful in a divorce but it cannot be used to facilitate a divorce. In other words, an antenuptial agreement should be used to plan for a potential divorce, not to plan the splitting of assets once a married couple has decided to end the marriage. If the court is to find that it appears that the dissolution of marriage was not prosecuted in good faith, on unproper grounds, or in such a way that the agreement was meant to promote the divorce, the court will may invalidate the agreement. A Tampa divorce lawyer can help to minimize this sort of risk. You should contact a Tampa divorce law firm to schedule a consultation to discuss your specific circumstances if you are contemplating creating a Florida antenuptial agreement.
Misconduct with respect to the marriage by either or both parties will not necessarily invalidate an antenuptial agreement. The courts will evaluate the misconduct with respect to the antenuptial agreement, but the misconduct will not invalidate the agreement unless the misconduct is so gross that it is beyond the contemplation of the parties at the time of entering into the antenuptial agreement. See https://scholar.google.com/scholar_case?case=10619580622320699061&q=%22Swad+v.+Swad,%22+363+So.+2d+18+(Fla.+Dist.+Ct.+App.+3d+Dist.+1978)%3B+&hl=en&as_sdt=40006 Swad v. Swad. Generally, adultery is not considered gross misconduct by the courts for this evaluation.
Alimony and Property Division
In addition to the basic alimony and property splitting considerations, there are a number of ways to use a Florida antenuptial agreement, so that each party can accomplish his or her goals with respect to his or her property, should divorce become necessary. So long as the agreement is not against the Florida policy, the parties can be creative with drafting the agreement. Examples of ways to use antenuptial agreements include (but are not limited to): making separate property joint after marriage, mutual release of dower and curtesy (with the intent that marriage not affect property), waiver of right to elect to take against will of surviving spouse, and so on. Specific questions, concerns, or goals with respect to an antenuptial agreement should be discussed with a Tampa divorce lawyer.
Tampa Divorce Law Firm
A skilled antenuptial lawyer can be very helpful not only with the negotiation process but also in drafting an agreement that will hold up in court if it is ever contested. At Florida Law Advisers, P.A. we are experienced with negotiating prenuptial agreements that protect our clients rights and satisfy rigorous judicial scrutiny. If you are considering drafting or challenging an antenuptial agreement, call us to speak with a Tampa divorce lawyer.