Florida Criminal Defense and DUI Defense Blog

18Aug, 21

family law in floridaToday, Associate Attorney Wendy Diaz is sharing some information on pre-nuptial agreements and post-nuptial agreements.

Prenuptials – you’re thinking about getting married and with all of the great planning, let’s just add one more thing, let’s just add a contract.

That’s what a prenuptial is. It is a contract between future-husband and future-wife to plan in case an emergency happens, such as a dissolution or a death.

Forty to forty-five percent of first-time couples end up getting a divorce, and as they remarry, the chances of getting a divorce go up with the number of marriages.

So, other than on the Lifestyles Of The Rich And Famous, who really benefits from a prenuptial.

Well, if you have either family money, family property, you’re coming into this relationship with your own property and you want to keep it protected, or maybe you’re a budding entrepreneur with a start-up company and you see the potential for growth and you want to protect your own assets.

What are the benefits of a prenup in regards to the types of things?

Well, first of all, I’m a control freak. A prenup gives you control, rather than giving the judge control over dividing assets, liabilities, and alimony, if that’s a factor in your dissolution.

It’s really just a safety plan, just to make sure. No one wants to get a divorce when they talk about getting married, but a prenup is a contingency.

Florida defaults to equitable distribution of assets and liabilities. Basically, a judge is going to cut everything in half, 50-50, and what you owe is what you owe and what you gain is what you gain.

The great thing about having a prenup is you can kind of tailor that to however much of an asset you put in or how much of a liability you bring into the marriage or create.

Things that can be put into the agreement involve property, alimony, life insurance, whether or not there is a will or revocable trust. It just dictates what your wishes are, should something happen.

What is not covered under Florida statute: child support.

Child support and child custody can be put into the agreement, but the judge won’t listen to it. Why? Because the judges want the best interests of the child to supersede the best interests of Mom and Dad. Sometimes when planning the agreement, couples might not have children and might not have thought of that occurrence further along, should the marriage be dissolved later.

Also, contract rules apply. So, if you are wanting to do a prenuptial agreement, think ahead. If you are the primary bread-winner now, are you going to be the primary bread-winner five, ten, fifteen, twenty years from now? It could switch. If a lot of the money is in real estate, real estate fluctuates. And if you have a start-up, you never really know how successful one is going to be. Always have a contingency plan, even if you’re the bread-winner right now, because life does happen.

The only way to have a prenuptial agreement voided by the court is if one of the basic contract rules didn’t apply, and it’s a very hard burden to overcome.

Now, let’s talk about postnups.

Yay! You’re married!

Your loving spouse and you are talking about everything, and you realize you just want to protect yourself now.

So, what happens after you get married and want to plan just in case?

Some of the basic things apply as a prenuptial agreement in a postnuptial agreement. It has to be in writing, and it has to be signed by husband and wife.

The thing that is different from a prenuptial agreement is each party has to make a statement regarding their financial status, because in contract there’s a consideration. Generally, the consideration is the marriage itself, but when you’re married, what you’re giving that could be taken away is the finances.

You have to have a truthful disclosure to the other spouse in order for the postnuptial agreement to be valid. Then the court is going to look at the agreement to make sure that it is fair. If it’s not fair, the court could reject the agreement and you’re going to have to go back to the drawing board.

The one way a postnuptial agreement cannot be enforced is if there is a show that the financial statement was made out of fraud, or there was some sort of duress, overreaching.

The first thing a court is going to look at when a dissolution starts, if there is a postnuptial agreement, is whether it was fair, was it fair in regards to the time that it was made, where each person stood financially and what agreement is actually in the contract.

Looking into this, maybe a prenuptial and a postnuptial agreement aren’t really more of the Lifestyles Of The Rich And Famous, but more of the prudent planner. You be the judge.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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