Updated: Feb 16, 2022
Truth be told, setting aside time to discuss a prenuptial agreement with your partner isn’t romantic when it comes to wedding planning. After all, it can be seen as if you’re planning for a divorce before even saying “I do”.
Another way to look at a prenuptial agreement is to see it as playing a game with your soon to be spouse. In this game, you are in charge of creating the rules that make sense for YOUR relationship. A prenuptial agreement is another item on your financial to-do list as a couple, it is a chance for you to protect against worst-case scenario.
WHAT IS A PRENUPTIAL AGREEMENT?
Simply put, a prenuptial agreement (prenup) is a written document created by two people before they get married (a postnuptial agreement is a written agreement executed after a couple gets married). The document spells out who gets what assets and debt in the case of a divorce. If you don’t have a prenup in place before you get married and end up separating from your spouse, Florida divorce law determines who receives any property that you and your spouse accumulated during your marriage. The prenuptial agreement gives you control by tailoring the division of assets to your own situation, and in turn, it can make the divorce process go much more smoothly if it ever comes to that.
WHAT DOES A PRENUP REALLY INCLUDE?
A prenup will typically specify the splitting of assets, business ownership, alimony or spousal support, estate planning, wealth and debt, but they can also include a number of lifestyle clauses. For example, financial consequences if a spouse is caught having an affair or who gets custody of the pets. In Florida, it is not possible to determine child custody (parental responsibility and time sharing) in advance in a prenuptial agreement. A more recent and popular addition to prenuptial agreement is a “Goodwill Clause” to prevent either of the parties from publicly speaking ill toward each other, and a Social Media Clause that would prevent each person from posting unflattering/disparaging images during or after the marriage, as well as protecting against revenge porn.
CAN I WRITE MY OWN PRENUPTIAL AGREEMENT?
We wouldn’t recommend it, no. What we do recommend is to make a list of your assets/debts/wealth so you have it ready for when you go consult with an attorney. We also recommend that each of you retain your own attorney, and pay your own legal fees. A prenuptial agreement is an enforceable contract. There are times when a prenuptial agreement can be challenged and very specific facts have to be present for the court to refuse to enforce it.
“Choose a reasonable time and place to talk about a prenup. This is, after all, a serious conversation and topic. So it is advisable that you and your partner are not under work or family stress. And remember, when proposing a prenup, the goal is not having the same views, but coming to a place of understanding, agreement and empathy regarding how to address differences you may have.” -Dr. Marcia Kimeldorf, PhD, Psychologist
WE'RE ALREADY MARRIED. DID WE MISS OUT?
If you married without a prenuptial agreement, you can draw up a postnuptial agreement. Commonly, it’s used to protect the inheritance of the kids you’ve had together. How? If you were to get divorced or pass away, the postnuptial agreement could specify that your ex or surviving spouse gets a prenuptial agreement before remarrying. Then, if they divorce you, what used to be your money or assets goes to your children, instead of the new spouse. Infidelity is also at the center of some postnuptial agreements. Sometimes a spouse is caught having an affair and forgiven, but a postnuptial agreement is drawn up to negotiate a greater asset split to the non-transgressor in the case of it happening again. Just like a prenuptial agreement, a postnuptial agreement is a contract that spouses can create ahead of time on how they will divide their assets and other provisions.
DO I NEED A PRENUPTIAL AGREEMENT IF I DON’T COME FROM A WEALTHY FAMILY?
Although we mostly hear about prenuptial agreement from celebrity marriages, where they divide big mansions and fortunes, being famous it’s not a pre-requirement to a prenup. A prenup can be helpful to a partner with fewer assets for a series of reasons. For example, if you quit your job to raise children, a prenup could specify that you get additional financial support from your spouse, since you may have a difficult time finding new employment. You can also clarify your financial rights and responsibilities during marriage. This also helps avoid arguments in case of divorce, and get protection from each other’s debts.
WHAT’S THE BEST WAY TO INITIATE THE PRENUP CONVERSATION?
It’s normal to feel uncomfortable addressing prenuptial agreement. Many partners fear they will do harm to their relationship or offend/hurt their significant other. However, one of the keys to having a successful marriage is being able to communicate well, even when it comes to thorny topics like money. Having this conversation in a healthy way says a lot about what the marriage will be able to handle in the future. A good way of approaching it is by making it clear that the prenup is only being discussed and created as a precaution, and that they strongly hope the issue will never come up and the marriage is long-lasting.
The person who initiates the prenuptial agreement conversation should do it as lovingly as possible, having each other’s best interests at heart. At the same time, for the person who’s on the receiving end of the conversation about a prenuptial agreement, they should be prepared to listen and try to understand their partner’s perspective and seek the legal advice of their own to understand their rights and obligations BEFORE they sign the prenuptial agreement.
HOW CAN AN ATTORNEY HELP WITH A PRENUP?
The most important aspect of a prenuptial agreement is that it follows Florida Law. If a prenuptial agreement does not meet the legal standards, it can be thrown out.
Perhaps the most important component when preparing a prenuptial agreement is to speak to an experienced Florida family law attorney who can advise you on the impact of the agreement on your future situation.
We Are Here For You
Prenuptial agreements should factor in your and your spouse’s personal and financial situations. A comprehensive contract can give you peace of mind and certainty.
If you need help preparing your prenuptial agreement or have questions about what to include, contact our experienced team at the Law Office of Ana Augusto, PA.