Making Sure Your Prenup Works in a Divorce

Being pragmatic about marriage, and the unexpected ways life can change, leads some couples to create prenuptial agreements to cover potential issues in divorce. Prenuptial agreements are commonly associated with the wealthy and famous, but they can serve an important purpose for the non-wealthy couple as well. While prenuptial agreements may not be the most romantic and optimistic way to enter into a new marriage, they do offer each individual an opportunity to protect any assets brought into the marriage, keep any outstanding debts separate, and settle the often-contentious issues of property division and alimony in advance. Handling these issues before problems arise should reduce time, hassle and expense if divorce does occur. Prenuptial agreements are particularly effective for someone getting remarried, or married for the first time as an older adult. These individuals typically own more property and earn larger incomes, which are at stake if the marriage does not work out. However, just like any legal arrangement, the value of a prenuptial agreement is only viable if the document works as the parties intended, which means using a family law attorney experienced in drafting these agreements. It is possible to invalidate these agreements if the properties are not treated properly during the marriage. A discussion of the law on the types of terms allowed in prenuptial agreements, and ways to ensure the agreement remains enforceable, will follow below.

What Terms May Be Included

Florida is generally permissive in the types of terms that may be included within a prenuptial agreement, but does prohibit provisions that attempt to avoid child support obligations or violate public policy or criminal law. Thus, for example, a prenuptial agreement that includes terms related to sexual services or requiring a woman to have a certain number of children would not be enforceable.

Outside these areas, prenuptial agreements usually cover three general issues – property division, alimony and estate planning. Couples entering into prenuptial agreements have the ability to decide when and how each party can:

• individually or mutually manage, control, buy, sell or transfer property;
• which properties, if any, a party would retain upon divorce, separation, death or other event;
• establish, modify, waive or eliminate alimony;
• hold ownership rights in the death benefits of a life insurance policy; and
• make a will, form a trust, or create other types of estate planning vehicles to carry out the terms of the agreement.

Protecting the Validity of the Agreement

Since property is the primary matter handled in most prenuptial agreements, the most important point is to make sure the agreement definitively explains which property will remain separate and which will be considered part of the marital estate. Further, steps must be taken to keep separately-owned property out of the marital estate, or risk losing it in divorce. Specifically, separate property should not be available for use by the family or other spouse, funds from separate accounts should not be used for expenses that benefit the marriage, and the other spouse should be removed from decisions about the use, control or operation of the property to the extent possible. Failure to clearly delineate separate property from the marriage could result in the property being placed in the marital pot and divided in a divorce. A man recently learned this lesson when a court ruled that two residential properties slotted to remain in the husband’s name according to a prenuptial agreement would instead be considered jointly owned marital assets and divided. The court changed the status of these properties because both were used continuously as residences by the family throughout the marriage.

Talk to a Family Law Attorney

Prenuptial agreements can be a great tool for preserving the interests of both spouses, but to be most effective, they should be executed by a family law attorney experienced with avoiding inadvertent legal loopholes. The Tampa law firm of Bubley & Bubley, P.A. handles numerous issues in family law matters, and can help you get the property settlement that is best for you. Contact us to schedule an appointment.

Resources:

leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.079.html

flarecord.com/stories/511110650-florida-supreme-court-grants-donative-intent-in-divorce-case-upholding-standard-of-evidence