Prenuptial Agreement Attorney in Miami, Florida
Entering into a marriage is one of the most significant legal decisions a person can make. A prenuptial agreement allows both parties to define their financial rights and obligations in advance, providing clarity and protection regardless of what the future holds. The Law Firm of Jeffrey Alan Aenlle, PLLC drafts, reviews, and litigates prenuptial and postnuptial agreements for clients throughout Miami-Dade County under the Florida Premarital Agreement Act, Fla. Stat. § 61.079.
What Is a Prenuptial Agreement in Florida?
A prenuptial agreement, also referred to as a premarital agreement or antenuptial agreement, is a written contract entered into by two people before marriage. Under Fla. Stat. § 61.079, a premarital agreement must be in writing and signed by both parties. The agreement becomes effective upon marriage. It does not require consideration beyond the marriage itself to be enforceable.
Prenuptial agreements are governed in Florida by the Uniform Premarital Agreement Act as adopted under Chapter 61, Florida Statutes. Courts in Florida generally enforce prenuptial agreements that meet the statutory requirements, and the agreement will be interpreted and enforced in accordance with Florida contract law.
What Can a Prenuptial Agreement Cover?
Under Fla. Stat. § 61.079(3), a prenuptial agreement may address the following:
The rights and obligations of each party with respect to property owned at the time of marriage or acquired thereafter. The right to buy, sell, transfer, or otherwise manage and control property. The disposition of property upon separation, divorce, death, or the occurrence of any other event. The modification or elimination of spousal support, including alimony. The making of a will, trust, or other estate planning arrangement. The ownership rights in and disposition of the death benefit from a life insurance policy. Any other matter, including the parties’ personal rights and obligations, that does not violate public policy or a statute imposing a criminal penalty.
What Cannot Be Included in a Prenuptial Agreement?
Florida law places important limitations on what a prenuptial agreement may address. Most significantly, a prenuptial agreement cannot adversely affect the right of a child to support. Under Fla. Stat. § 61.079(3)(b), the right of a child to support may not be adversely affected by a premarital agreement. Any provision purporting to limit or waive child support is unenforceable.
Additionally, a prenuptial agreement cannot require either party to do anything illegal, and any provision that violates public policy will not be enforced by a Florida court.
Requirements for a Valid Prenuptial Agreement in Florida
For a prenuptial agreement to be enforceable in Florida, it must satisfy several requirements. The agreement must be in writing and signed by both parties voluntarily. Florida courts will scrutinize whether each party had a reasonable opportunity to consult with independent legal counsel before signing. While independent counsel is not required by statute, the absence of counsel is a factor courts consider when evaluating whether execution was voluntary.
Full and fair disclosure of each party’s financial circumstances is critical. Under Fla. Stat. § 61.079(7), a prenuptial agreement is not enforceable if the challenging party proves that the agreement was the product of fraud, duress, coercion, or overreaching, or that the challenging party did not receive a fair and reasonable disclosure of the other party’s property and financial obligations, did not voluntarily waive any right to disclosure, and did not have adequate knowledge of the other party’s financial circumstances.
For this reason, it is strongly advisable for both parties to exchange full financial disclosures and to have the agreement reviewed by independent counsel well in advance of the wedding date.
Postnuptial Agreements in Florida
A postnuptial agreement is a written contract entered into by spouses after the marriage has already taken place. Postnuptial agreements serve the same general purpose as prenuptial agreements and may address property rights, spousal support, and asset division in the event of divorce or death.
Florida courts apply heightened scrutiny to postnuptial agreements compared to prenuptial agreements because the parties are already in a confidential relationship at the time of execution. The agreement must be fair, reasonable, and the product of full financial disclosure and voluntary execution by both parties. (See Casto v. Casto, 508 So. 2d 330 (Fla. 1987).)
If you are already married and wish to define your financial rights going forward, a postnuptial agreement may be an appropriate and enforceable solution.
Why You Need an Attorney to Draft Your Prenuptial Agreement
A prenuptial agreement that is improperly drafted or executed may be challenged and set aside entirely at the time of divorce. Common grounds for invalidating a prenuptial agreement in Florida include lack of voluntary execution, inadequate financial disclosure, unconscionability at the time of execution, and overreaching by one party.
Having an experienced Miami prenuptial agreement attorney draft and review the agreement significantly reduces the risk of a successful challenge. Each party should have their own independent legal counsel review the agreement before signing. The agreement should be executed well in advance of the wedding, not in the days immediately preceding it, as proximity to the wedding date can itself become evidence of duress or coercion in subsequent litigation.
Frequently Asked Questions: Florida Prenuptial Agreements
How far in advance of the wedding should a prenuptial agreement be signed?
There is no statutory minimum in Florida, but best practice is to have the agreement fully executed at least 30 days before the wedding. Signing a prenuptial agreement in the days immediately before the ceremony creates a risk that a court will later find the execution was not voluntary due to the pressure of the impending wedding.
Does a prenuptial agreement need to be notarized in Florida?
Florida law does not require notarization for a prenuptial agreement to be enforceable. However, notarization is strongly recommended as it provides additional evidence that the signatures were voluntary and authentic.
Can a prenuptial agreement be challenged in Florida?
Yes. Under Fla. Stat. § 61.079(7), a prenuptial agreement may be challenged on grounds of fraud, duress, coercion, overreaching, or failure to provide fair and reasonable financial disclosure. If a court finds the agreement was the product of any of these circumstances, it may set aside the agreement in whole or in part.
Can a prenuptial agreement include alimony provisions?
Yes. A prenuptial agreement may modify or eliminate the right to alimony entirely, subject to one important exception. Under Fla. Stat. § 61.079(7)(a)(2), if a provision modifying or eliminating alimony would cause one party to be eligible for public assistance at the time of divorce, a court may require the other party to provide support to the extent necessary to avoid that eligibility.
Can a prenuptial agreement protect a business I own before marriage?
Yes. A prenuptial agreement can designate a premarital business as separate property and address how any increase in the value of that business during the marriage will be treated in the event of divorce. Without such an agreement, the appreciation in value of a premarital business may be subject to equitable distribution under Florida law.
Is a prenuptial agreement enforceable if I did not have my own attorney?
Not necessarily unenforceable, but the absence of independent legal counsel is a factor a court will consider in determining whether execution was voluntary and whether the agreement is unconscionable. It is strongly advisable for both parties to retain independent counsel before signing.
What is the difference between a prenuptial agreement and a postnuptial agreement?
A prenuptial agreement is executed before marriage and takes effect upon the marriage. A postnuptial agreement is executed after the marriage has already taken place. Both can address property rights and spousal support, but Florida courts apply stricter scrutiny to postnuptial agreements because of the confidential relationship that exists between spouses.
Can a prenuptial agreement address what happens to property if one spouse dies?
Yes. A prenuptial agreement may address the disposition of property upon death, including the right to elect against a will and inheritance rights. However, a prenuptial agreement that affects elective share rights must comply with the requirements of both Fla. Stat. § 61.079 and the Florida Probate Code.
Speak with a Miami Prenuptial Agreement Attorney
Whether you are preparing for an upcoming marriage or are already married and considering a postnuptial agreement, the Law Firm of Jeffrey Alan Aenlle, PLLC can help you protect your financial interests and ensure that any agreement you enter into is enforceable under Florida law.
Contact us today to schedule a free consultation.