What You Should Know About Prenuptial Agreements Before Divorce
When you are thinking about filing for divorce in Florida, you should always work with an experienced Tampa divorce attorney to ensure that your case runs as smoothly as possible. One of the ways in which your divorce might not go exactly as planned is if you have a premarital agreement—also known as a prenuptial agreement—that turns out to be completely unenforceable, or that has unenforceable clauses. On the flip side, you could end up with unwanted surprises in your divorce if you have a fully enforceable prenuptial agreement that results in consequences you were not expecting.
Concerns about premarital agreements often arise in cases where the couple attempted to create the contract themselves without the help of a lawyer prior to their marriage, in situations where one or both of the parties had ineffective counsel, or in scenarios in which one or both of the parties failed to disclose important information about their finances at the time the premarital agreement was signed. We want to give you some basic information about premarital agreements to keep in mind when you file for divorce.
- Any Terms Concerning Child Support Are Unenforceable
Under Florida law pertaining to premarital agreements (Fla. Stat. § 61.079), premarital agreements cannot, under any circumstances, affect a child’s right to child support.
- Your Premarital Agreement Is Unenforceable If It Is Not Written and Signed
In order to enforce the terms of a premarital agreement upon divorce, the agreement must be in writing, and it must be signed by both parties. If these basic elements are not met, the terms of the agreement will not be considered in your divorce case.
- If Your Marriage is Annulled, Your Premarital Agreement May Be Completely Unenforceable
Under the Florida Statutes, “if a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.” In other words, if you are seeking an annulment as opposed to a divorce because your marriage was not legal in the first place under Florida law, the court will only enforce a premarital agreement if failing to do so would be unfair to one or both of the parties. If abandoning the premarital agreement would not lead to an “inequitable result,” then an annulment typically means that a premarital agreement is unenforceable.
- Terms in Prenups Can Be Invalidated If They Are Unconscionable
Even if it appears that your prenup was executed properly and according to the statute, a court can invalidate parts or all of the premarital agreement if the court determines that the agreement is unconscionable or would produce an unconscionable result.
Seek Advice from an Experienced Tampa Divorce Attorney
If you are considering divorce and have questions about how the court will handle your prenuptial agreement, you should get in touch with an experienced divorce lawyer in Tampa as soon as possible. Even if one or more of the terms in your prenuptial agreement may be unenforceable, it may still be possible to enter into a post-nuptial agreement with your spouse to ensure that property division and other financial issues work out as you both planned. Contact Bubley & Bubley, P.A. today for more information about the family law services we provide to clients in Florida.