Premarital (Prenuptial) Agreements

It is somewhat ironic that when a couple forms a business partnership that they typically prepare a written contract that specifies the contributions of each party to the partnership as well as how the business will be wound down if the partnership dissolves.  When a couple gets married, it is a partnership involving a far more fundamental blending of the lives of each partner. Yet many people enter into this more intense partnership without taking the financial precautions that are almost universal when forming a business partnership. While this may be based on notions that a premarital agreement is unromantic or reflects a pessimistic outlook on one’s marriage, the reality is that a premarital agreement in many situations is nothing more than sound financial planning when the divorce rate in the U.S. is around fifty percent.

Marital Stability through Premarital Financial Planning & Protection

While no one enters into a marriage believing that the marriage will end in a divorce, the possibility of divorce cannot be overlooked. The possibility that a marriage will end in divorce is no better in Florida, which has 11 of the fifty cities with the greatest number of divorces in the United States.  What many people do not recognize is that a premarital agreement can actually strengthen a marriage by making the consequences of ending the marriage clear.  There are certain situations where a premarital agreement is particularly appropriate:

• Either spouse owns a business

• There is substantial income inequality between spouses

• One spouse is an heir to substantial inheritance

• The spouses have substantially different net worth

• Either party has children from a prior relationship where inheritance disputes may arise

While a premarital agreement can be an effective way to provide stability throughout a couple’s marriage or financial predictability in the event of a divorce, it is very important to be aware of the potential pitfalls of such an approach.  Anyone considering entering into a premarital agreement should seek legal advice regarding his or her rights and obligations with regard to the successful execution of a premarital agreement.

A premarital agreement is a written agreement or contract between prospective spouses while contemplating marriage that becomes effective upon marriage.  In Florida, the formalities, content, and enforceability of a premarital agreement are outlined in section 61.079, Fla. Stat.   

During a contested divorce involving a premarital agreement, the court will examine the content of the agreement and circumstances at the time the parties entered into the agreement. If the court finds that the agreement was executed based on fraud, duress or undue influence, then the premarital agreement is not enforceable. 

Furthermore, if the premarital agreement includes a provision that limits or eliminates spousal support and that provision creates a situation whereby that spouse would qualify for public assistance, then the court may require the other party to provide support to the extent necessary for the receiving spouse to avoid being eligible for public assistance.

The danger of entering into a premarital agreement without the advice and assistance of legal counsel should be obvious.  The sacrifices made to obtain the agreement embodied in a premarital agreement can suddenly be for naught if a court redistributes the marital property or finds the agreement is otherwise unenforceable.  Our experienced Palm Beach premarital agreement lawyers advise clients regarding premarital agreements to help ensure that our clients’ intentions and expectations are not frustrated.  We also make sure that the agreement does not violate Florida law, which may result in the court disregarding the agreement between spouses. 

Financial Predictability in Worst Case Scenarios

Many individuals make the mistake of trying to draft such agreements without the advice of an experienced Palm Beach family law attorney. Common mistakes include trying to waive or limit child support, which is illegal and will not be enforced by a court.  A complete waiver of alimony can also be problematic under certain situations so it is important to understand the circumstances under which a Palm Beach court may not enforce such a provision. 

When a court disregards the terms of a premarital agreement, it can result in a substantial frustration of your intentions and result in an unacceptable change in the terms of the financial arrangements in your agreement.  Mr. Cunha and his legal team can analyze the terms of your proposed premarital agreement and advise you of potential problems as well as draft the agreement so that it embodies your intentions in an enforceable way. 

We are loyal and passionate about our clients’ cases and consistently seek the best possible resolution to their family law matters, including those involving the artful drafting and enforceability of premarital agreements.  We bring a substantial level of skill, knowledge and diligence along with the ability to think outside the box so that we can be the most effective advocates for our clients. Contact us today.