When the word prenuptial agreement (or prenup) is mentioned, most people think of protecting assets and income from alimony claims. However, prenuptial agreements are not just for those with a large net worth. The most common function of a prenup is to determine who gets what assets in the event of divorce- from marital assets to family heirlooms. Another strong reason to get a prenuptial agreement is to minimize the attorney’s fees and costs of divorce.
Prenuptial agreements aid in a variety of situations; for example, if a spouse quits their job and relocates for marriage, a prenup can ensure financial security in event of separation or divorce. Prenuptial agreements can also aid in specifying who pays any debt incurred during the marriage if divorce occurs. Prenups cannot specify child custody but they can certainly indicate the parties intent as to child rearing when the marriage was on good terms, and courts often give weight to such factors. If you get married later in life, a prenup may be used to establish who receives your assets in the event of death.
Prenups are not do it yourself contracts and are often difficult to enforce unless written by an attorney. Given the close relationship of those intending to marry, special rules are applicable to prenuptial agreements which are troublesome even for some seasoned lawyers. For instance, in Florida to waive increases in the value of assets it may not be sufficient to waive any appreciation. You may be required to specify a waiver of both passive and active appreciation.
Another pitfall is that segregating assets acquired during the marriage as non-marital may not be enough. Prenuptial agreements need to specifically state the income and assets purchased from such income during the marriage are non-marital. Prenups are uniquely tailored to your specific situation and can be changed down the road, as long as both parties agree to it. However, if the agreement to modify the prenuptial is made during the intact marriage, there will be a requirement to exchange something of value for the amendment and there may be a heightened duty of fair dealing.
Some couples will draft prenups that disintegrate after a certain amount of time. If you decide after marriage that you wish you would have agreed on a prenuptial agreement, it’s not too late. Postnuptial agreements are quite common, and are often put into place to protect the inheritance of children.
The important thing to know is that a prenup is a legal agreement unique to the relationship between you and your future spouse. While others may have their own opinions and thoughts on the subject, only you and your partner can decide whether a prenuptial agreement is right for you.
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Partner at John F. Schutz, P.L.
Representing clients exclusively in family law cases for the past 24 years, Mr. Schutz is widely regarded as a marital and family law expert. He is Board Certified in marital and family law by The Florida Bar. As a Fellow of the American Academy of Matrimonial Lawyers (AAML), Mr. Schutz is committed to elevating the standards and improving the practice of family law.
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