What a Prenuptial Agreement Can and Cannot Do under Florida Law

Are you looking to get married? If so, you may have considered a prenuptial agreement. Prenuptial agreements, or prenups, are becoming increasingly common among couples who recognize their benefits. Prenups are no longer associated with the ultra-rich and their second marriage. They are becoming standard practice for couples who are seeking to establish clear financial expectations.

A prenuptial agreement is a legal document that is signed before a marriage takes place. It can dictate how spousal support (alimony) and property distribution take place in the event of a divorce. Florida is considered an equitable distribution state. This means assets and debts that were acquired during the marriage are not necessarily split 50/50 between the couple. In cases where one spouse makes considerably more than the other, the court might see fit to award more of the marital estate to the lower-earning spouse. To avoid this, protect certain assets, and require your spouse to disclose their finances, a prenuptial agreement is necessary.

What can a prenuptial agreement do in Florida? 

Prenuptial agreements can handle a lot of matters, but they can’t handle all matters related to divorce. A well-drafted and legally sound prenuptial agreement can:

• Protect marital assets – Generally speaking, property that is owned by either spouse before the marriage takes place is considered their own separate and individual property. However, there is a danger that this property can become “commingled” with marital property or accrue value during the marriage that becomes marital property. A prenuptial agreement can prevent individually owned property from ever becoming marital property. In addition, a post-nuptial agreement can prevent property acquired during the marriage from being considered marital property.

• Dividing assets acquired during the marriage – If you or your spouse wants to keep a specific business, asset, investment, or your retirement funds separate from the marital estate (so that it’s not divided during equitable distribution), you can do so in a prenuptial or postnuptial agreement.

• Limiting spousal support or alimony – A prenuptial agreement can limit the amount and duration of alimony that you would pay to your spouse should you divorce. However, the agreement cannot entirely waive one spouse’s right to financial support, especially when there is a large difference in the spouses’ earning powers.

What can a prenuptial agreement not do? 

When it comes to making decisions regarding the children, prenuptial agreements have very limited power. Not only can you not place any stipulations regarding child custody into a prenuptial agreement, but you cannot limit how much child support you would pay. In both cases, the Florida courts employ the “best interests of the child” standard, and parents aren’t allowed to shirk their obligations to their children in a contract.

In addition, a prenuptial agreement cannot limit the inheritance rights of children. The agreement cannot prevent children from inheriting what they would otherwise be legally entitled to under Florida law.

Talk to a Clearwater, FL, Family Lawyer Today 

Cairns Law, P.A., represents the interests of spouses who are interested in drafting a prenuptial agreement in Clearwater, Florida. Call our Clearwater family lawyers today to schedule an appointment, and we can begin discussing your next steps right away.