Florida’s Prenuptial Agreement Requirements

Prenuptial Agreement Requirements in Florida

Florida’s Prenuptial Agreement Requirements

A prenuptial agreement, or prenup, is a written contract signed by the parties intending to get married before the marriage. A Florida prenup lays out what will happen upon divorces such as division of property and debt, spousal support, or alimony. What is laid out in a prenup may be much different than what a judge would decide if there was no prenup, so it is important to carefully draft and execute a valid prenuptial agreement, especially if the money and assets at stake are significant. There are five main requirements to a prenuptial agreement in Florida outlined below.

1. The agreement must be in writing.

To be enforceable, a prenuptial agreement must be in writing. Things that may be included in the contract are: rights and obligations of each party in properties owned by either or both of them; the right to buy, sell, rent, use, mortgage, dispose of, or otherwise manage and control property; the disposition of property upon death, divorce, or separation; the ownership rights in and disposition of the benefit from a life insurance policy; the choice of law in the creation of the agreement; and any other matter including rights and obligations that do not violate Florida law. It is important to disclose all assets, properties, and debts when drafting a prenuptial agreement. If proper disclosure is not made, it is possible for the agreement to be invalidated in court by a judge. Also, the writing of the agreement should not be ambiguous. If the agreement is not clear, it could be successfully challenged in court. It is important to use a competent attorney that can draft a sound and clear agreement.

2. Both parties must sign the agreement voluntarily.

If only one party has signed the prenuptial agreement, it will not be enforced. If both parties signed the prenuptial agreement, but one of the parties signed involuntarily, it will not be enforced. Duress arguments are a frequent reason people try to get a prenuptial agreement thrown out in court; however, they are also typically the least successful. Legally speaking, duress means constraint illegally exercised to force someone to perform an act they normally would not perform. In regards to prenuptial agreements, grounds for a duress argument are issues such as too short of a deadline between the presentment of the prenup and marriage date, lack of funds, lack of an attorney, and an imbalance in sophistication. Also, if one party is under the influence of alcohol or drugs at the time of signing the prenuptial agreement, they can argue that they did not have the mental capacity to sign the agreement. It is wise to present the prenuptial agreement long enough ahead of the wedding date to give the other party sufficient time to contemplate the terms (about one to three months), negotiate a better deal if they desire, and secure a lawyer. If the other party cannot afford a lawyer, it may be a good idea to give them money to hire a lawyer of their choosing to avoid the lack of an attorney argument.

3. The agreement must be notarized.

A prenuptial agreement must be notarized by a certified notary public. The division of houses and property is normally included in prenuptial agreements, and Florida law requires that any contract involving real estate have two witnesses and a notary. Having witnesses and a notary also help prevent the argument that a party’s signature was forged.

4. The agreement must be validated by a marriage

While a prenuptial agreement may be drafted well before the wedding date, its terms are not effective until the marriage of the parties involved. If the parties shared assets before the marriage and ended the relationship before the marriage took place, the prenuptial agreement would not be enforced. If the marriage does take place but is determined to be void, the agreement will be enforceable only to the extent necessary to avoid an inequitable result.

5. A prenuptial agreement cannot be an oral agreement.

As stated in the first agreement, prenuptial agreements in Florida must be in writing. Written agreements are required due to the statute of frauds, which refers to the requirement that certain types of contracts, including prenuptial agreements, be in writing, signed by the party(s) to be charged, and with sufficient content to evidence the contract. However, if an oral agreement is then written and properly signed, the writing of the oral agreement may be enforceable at the dissolution of marriage.

Because of the possibility of extended court proceedings, it is important to carefully draft a prenuptial agreement that abides by all of Florida’s court requirements and strictly follow the process before either party signs the prenuptial agreement. Prenuptial agreements that are properly written and executed can significantly reduce the time spent fighting in court if a divorce does occur.