Clearwater Prenuptial Agreement Attorney
Practical Method of Protecting Your Assets
One of the areas in family law that generates a tremendous amount of litigation is the area of Pre-Nuptial Agreements. There is no question that in some instances pre-nuptial agreements, “Prenups,” can be of benefit to some people. The benefits are that they allow each spouse to clearly establish what separate property they own and wish to maintain as being separate property. They can also be of value in deciding how marital property will be distributed and how debts will be handled. Additionally, prenups can address issues involving alimony and other financial obligations.
Significant problems can arise, however, with regards to the validity of a pre-nuptial agreement. Far too often these documents are put together at the last minute or in a haphazard manner. Both of these approaches, along with pre-nuptial provisions that are unreasonable in nature, can result in the agreement being declared void.
What sorts of issues can be decided with a prenuptial agreement?
The Florida statute on prenuptial agreements, known as the “Uniform Premarital Agreement Act,” specifies what sorts of decisions couples can make through a prenuptial agreement and what issues must instead be decided by a family court during a divorce proceeding. Couples can agree on how the following matters will be handled in their prenuptial agreement:
- Which spouse will own certain property or will be responsible for certain debts, regardless of when those debts or assets were acquired
- The spouses’ rights to sell, buy, manage, or transfer certain items
- How property will be distributed when one or both spouses die
- Whether a certain event will trigger a given outcome with regard to a certain item of property. For example, some couples agree that the amount of alimony owed or division of property will be different if the couple remains married over a certain number of years.
- A requirement that the spouses create a will or trust that carries out aspects of the prenuptial agreement
- Whether and how much alimony (also known as spousal support) one spouse will pay to another in the event of a divorce
- A requirement that the death benefit from a life insurance policy be paid to a spouse.
Even where a prenuptial agreement is otherwise valid, Florida law dictates that couples cannot make an agreement about the payment or amount of child support in a prenuptial agreement.
Creating a Valid Prenuptial Agreement
In order to create a valid prenuptial agreement, it is essential that each party fully disclose to the other the status of their financial affairs, including their assets, liabilities and income. It is also essential that both parties have ample time to consider and reflect upon the agreement. The case law is clear, a party cannot waive a right that they do not know they have to begin with. A valid prenup outlines the rights being waive and discloses them to the parties so as to ensure that the waiver is knowing and valid.
Prenuptial agreements will also be declared unenforceable when one spouse proves that the other spouse used force or coercion to get them to sign the agreement, that a spouse signed the agreement involuntarily, or that a spouse lied or otherwise committed fraud in obtaining their spouse’s signature on the prenuptial agreement.
If a prenuptial agreement would leave one spouse completely destitute, the court has a right to invalidate certain provisions after a divorce. If the court finds that one spouse would qualify for public assistance if they didn’t receive alimony payments, the court has the right to force the wealthier spouse to pay alimony, even if the couple had a valid prenuptial agreement where the couple agreed that no alimony would be paid.
A great many agreements are challenged in Court and the two most common reasons for their being declared null and void are the failure to properly disclose one’s assets and a party not being given sufficient time to consider the prenup and consult with a Clearwater prenuptial agreement attorney. An agreement presented to a bride just before a wedding is suspect, at best, and ones that do not include an adequate disclosure of the parties assets or that contain unreasonable provisions are easily subject to attack.
If you are thinking of having a prenup done, or someone has asked you to review and sign one, it is important that you talk with an experienced Clearwater family law attorney to discuss several issues:
- Do you actually need a pre-nuptial agreement?
- What is the purpose?
- What procedures must be followed in order to insure a valid agreement is created?
- What special considerations may apply in your case to insure the prenup is valid?
The idea of writing an agreement that says “what’s mine is mine and what’s yours is yours” seems like a fairly simple and straight forward problem. Unfortunately, it is not simple and it is not straight forward. There are various types of assets that appreciate in different ways and each type of appreciation must be specifically addressed. Did you know that there was a recent case law decision by an Appellate Court that ruled that “any and all types of appreciation” did not mean “any and all?” Rather “any and all” only meant passive appreciation and not active appreciation. These sorts of nuances can have a significant effect on the validity of your pre—nuptial agreement and, unless you are an expert in Marital and Family Law, you cannot begin to understand the nuances and complexities of a pre-nuptial agreement. As a Board Certified Expert in Marital and Family Law, Mr. Williams has the experience and training necessary to help you through the maze of pre-nuptial issues and to draft you a document that is valid and enforceable.
Choose Clearwater Prenuptial Agreement Lawyers At The Law Firm For Family Law
You should also be aware that post-nuptial agreements are becoming more common as well. We frequently use these types of documents when the financial circumstances of the parties change after marriage. A pre-marital business may develop into a major financial asset, one party may win the lottery or inherit a great deal of money. Any major financial development may justify the parties entering into a post-nuptial agreement for the purposes of establishing their rights to their assets post marriage. Here again, these contracts can be complicated to draft in a way to insure they are enforceable and valid. If you are thinking of having a pre-nuptial agreement or post –marital agreement written, make sure you use an expert attorney in Marital and Family Law to prepare your agreement. Call us today at (727) 531-8737 to schedule a free consultation to discuss your situation.