Nuptial Agreements

Types of Agreements

Nuptial agreements are legally binding contracts that allow individuals to determine how they will divide their assets and debt in the event of a divorce. Rather than dividing assets based upon Florida Law, these agreements can provide asset protection for individuals who prefer Florida’s equitable distribution laws not apply to them. These agreements may also address matters of spousal support.

Prenuptial Agreement

A premarital agreement is an agreement between prospective spouses made in contemplation of marriage to be effective upon marriage. It must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself. A premarital agreement becomes effective upon marriage of the parties. After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration. Individuals cannot contract to waive a child’s right to financial support within a prenuptial agreement.

Parties to a premarital agreement may contract with respect to the following:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The establishment, modification, waiver, or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.

A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

1. The party did not execute the agreement voluntarily;
2. The agreement was the product of fraud, duress, coercion, or overreaching; or
3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

Postnuptial Agreement

A postnuptial agreement is similar to a prenuptial agreement except that it occurs after the couple has already legally married. Read the information related to prenuptial agreements to learn more about each parties’ rights and the specifics surrounding these agreements.

Recent Pre & Postnuptial Agreement Articles

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