100 dollar bill rolled up with a wedding ring around it to signify prenuptial & postnuptial agreements in Florida

Entering into a marriage is a life-changing event, one that each party hopes will last forever. However, divorce occurs more frequently that couples would like, making prenuptial agreements a necessity. For instance, the American Psychological Association reports that forty to fifty percent of first-time marriages end in divorce. Further, the divorce rate is even higher for second or subsequent marriages. See the American Psychological Association.

Regardless of the circumstances, a Florida prenuptial agreement can be beneficial to a couple. Premarital agreements, commonly known as prenups, are essentially a contract the couple signs before the marriage. The contract determines the distribution of assets, debts, alimony, and other issues in the event of a divorce.  A prenuptial agreement can allow you to modify specific provisions of Florida divorce law to fit your particular circumstances better. A well-executed  Florida prenuptial agreement will allow you to set forth the terms of the divorce. Rather than a judge dictating the distribution of your assets and the amount of spousal support awarded.

A postnuptial agreement, by contrast, is executed sometime after the parties were married.  A postnuptial agreement seeks to accomplish the same goals as a prenuptial agreement. These goals set forth the terms of the divorce, rather than a judge dictating the distribution of your assets and the amount of alimony.  To find out more about a Florida prenuptial or postnuptial contact a divorce law firm in Tampa to schedule a consultation.

Florida Equitable Distribution in a Divorce

Florida utilizes equitable distribution in divorce proceedings if there is no prenuptial agreement.  Simply put, this means that marital property is subject to a fair distribution. Judges will typically divide marital property in half unless there are unique circumstances. Marital property is generally any asset or debt acquired during the marriage.  Equitable distribution is the standard that will likely be applied should the agreement be found unenforceable by the court.

Florida Prenuptial Agreement Benefits

There are many benefits a couple can find from a Florida prenuptial agreement. For instance, the agreement can allow the parties to determine the terms of a divorce and avoid costly litigation. Though commonly thought to be important for only wealthy couples, prenuptial agreements are now recommended for everyone. An effective agreement can save litigation costs and stress in the event of a divorce. No matter how much or how few assets a couple has, prenuptial agreements can be very helpful.

Florida Prenuptial Agreement

A Florida prenuptial agreement can cover a wide range of issues. These issues include alimony, division of debts, and assets in the event of divorce. Additionally, the agreement may consist of many complex requirements that are not part of a typical contract. Therefore, it is essential to consult an experienced Tampa pre-nuptial agreement lawyer while creating and before signing a premarital agreement. Many divorce law firms will offer free initial consultations for these types of legal issues.

It is important to note that there are some issues a Florida prenuptial agreement cannot determine, such as child custody rights.  Under Florida law, child custody is based on the best interest of the children (not the parents). Therefore, custody is not a decision parents and spouses can make before an active child custody case.  To find out more about other issues not eligible for a Florida prenuptial agreement, contact a prenuptial agreement attorney in Tampa.

Uniform Premarital Agreement Act

Florida has adopted the Uniform Premarital Agreement Act, which expressly provides that parties may reach a binding contract on the many issues. These include:

  • The parties’ rights and obligations concerning any assets and liabilities.
  • A right to buy, sell, use, transfer, or dispose of the property.
  • Distribution of property upon separation, dissolution, death, or other events.
  • The right to alimony.
  • Making of a will or trust.
  • Disposition of life insurance proceeds.

There may be additional issues you can include as well. For a complete list, contact a divorce lawyer in Tampa for specific advice about your case.

A Non-modifiable Florida Prenuptial Agreement

Generally speaking, a Florida prenuptial agreement is not modifiable. Because a Florida prenuptial agreement cannot be modified, careful planning is required.  A good prenuptial agreement will not only account for the assets at the time of marriage but will consider the potential for future income and accumulation of assets as well.

This could be an issue where one party had a high-income job when the prenuptial agreement was signed and thus did not request alimony.  Then, during the marriage, that party became unable to work due to a disability. Though their financial situation has drastically changed, because the right to alimony was waived initially, they cannot receive alimony at the time of divorce. See Florida pre-nuptial agreement law 61.079.

Enforcement of Prenuptial Agreement

Under Florida prenuptial agreement law, a prenup may be enforceable even if the terms are unfair. For instance, in Ferguson v. Ferguson, the court upheld a prenuptial agreement to transfer real estate before the market decline. Per the agreement, the husband was to retain sole ownership of the home in exchange for paying the wife $185,000. Additionally, the husband was to indemnify the wife from any property taxes, assessments, or other property-related expenses. The prenuptial agreement was drafted before the real estate market collapse in 2008 and did not anticipate a drastic drop in the home’s value. The husband attempted to void this provision because the change in home values made the deal significantly worse for him. However, the court upheld the prenuptial agreement and ordered both parties to fulfill its performance.

The prenuptial agreement can be a legally enforceable contract. However, in some circumstances, the agreement can be voided.  Further, a court can disregard specific provisions of the contract while still enforcing the remainder of the prenuptial agreement. Therefore, you must consult with a Tampa divorce attorney experienced in Florida prenuptial agreement law.

Adultery

Misconduct concerning the marriage by either or both parties will not necessarily invalidate a post or prenuptial agreement.  For instance, adultery will generally not b sufficient to void an agreement. Traditionally, the conduct must be so gross that it is beyond the contemplation of the parties to be bound to its terms.  See Swad v. Swad.

Challenging a Prenuptial Agreement in Florida

A valid prenuptial agreement in Florida is a legally enforceable contract; however, it can be challenged and voided in a court of law. A prenup in Florida may be voided in its entirety or just specific provisions of the agreement. Grounds to void an agreement can include, duress, coercion, failure to disclose assets, or fraud.

Both parties must hire their own divorce attorney when entering into a prenuptial agreement. Failure to hire your own attorney may not be sufficient grounds to void an agreement. You should be well informed of the agreement’s benefits and disadvantages before signing. Once a prenuptial is fully executed, it may be binding and nonmodifiable, you should proceed with care.

Evidence to Void a Prenuptial Agreement

A court does not have the authority to void a prenuptial agreement in Florida simply because it’s an unfair deal. See Castro v. Castro & Kuchera v. Kuchera. An agreement cannot be voided solely because, in hindsight, it represents a bad deal for the spouse. However, an agreement that is unfair on its face will create a presumption that there was not full disclosure.

Usually, the party seeking to enforce the agreement will have the burden of proving full disclosure was provided. If the presumption is not rebuffed by evidence, the agreement may be voided in its entirety or limited to specific provisions. However, if there is sufficient evidence to refute the presumption of lack of disclosure, the agreement will be enforceable, regardless of how unfair the terms of the agreement are. Thus, it is highly recommended you retain a Tampa divorce lawyer to assist with preparing the prenuptial agreement. An experienced attorney can help to make sure the agreement will hold up to judicial scrutiny.

Florida Prenuptial Agreement Law on Child Support and Custody

Not all aspects of a Florida divorce can be resolved with a prenuptial agreement. For instance, a court may void provisions of an agreement that attempts to alter child support or custody. A  court will only enforce these provisions if they are more beneficial to the child than Florida law provides. See League v. Lassiter. Additionally, provisions of a prenuptial agreement that attempt to limit or prevent support during a pending divorce are generally not enforceable.

Consideration for a Postnuptial Agreement in Florida

Under Florida divorce law, the agreement must be made in good faith and free from fraud, deceit, coercion, and trickery.  See Baker v. Baker.   Additionally, since a Florida antenuptial agreement is treated as a contract, there must also be valid consideration.

Consideration is required for every contract in the United States. The consideration represents something that each party will give up or receive as a result of the agreement.  Unlike a prenuptial agreement, the marriage itself cannot be considered valid consideration. In postnuptial agreements, the marriage would have already occurred before the postnuptial agreement. Therefore, there must be some other form of consideration for the agreement.

Consult a 5 Star Tampa Divorce Law Firm

Regardless, if you are trying to enforce, overturn, or draft a prenuptial agreement Florida Law Advisers, P.A. can help. Our divorce lawyers in Tampa have years of experience in drafting and challenging prenuptial agreements. Every case is different, and our vast experience allows us to cater our services to a client’s individual needs. To speak with a Tampa divorce lawyer at our firm, call us today at 800 990 7763.  We are available to answer your calls 24/7 and offer a free initial consultation with a Tampa divorce attorney.

Frequently Asked Questions

Are postnuptial agreements allowed in Florida?
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Are prenuptial agreements allowed in Florida?
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12 replies
  1. Jason B.
    Jason B. says:

    Hi,

    I would like to discuss setting aside or modifying my postnuptial agreement based on the fact that there was no consideration, it was signed under duress and through misrepresentation. Please contact me asap. Thank you!

    Best,
    Jason

    Reply
  2. Rodrigo S.
    Rodrigo S. says:

    Hello, my spouse has agreed to a postnup. She has been unfaithful in the past, as well as her current desire to now be non monogamous, has led us to this decision. We both agree that there will be no spousal support or alimony if we divorce. Is this enforceable?

    Reply
  3. Jimmy J
    Jimmy J says:

    Hello, we were married in Florida, but my wife and I are foreigners and live in Brazil. Is a Florida post-nuptial possible and/or enforceable for our situation?

    Reply
  4. Boris M
    Boris M says:

    We want to do a post nuptial agreement. Basically for the House. In case we get divorce Ill keep the house. (under my name, but acquired after marriage) We both agree. No kids. Is this possible?
    Thank You.

    Reply

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