South Florida Attorney Eric N. Klein

Prenuptial Agreement

Florida Prenuptial attorney, Eric N. Klein, explains what a prenuptial agreement is and how it can help you in the long run.

What is a Prenuptial or Antenuptial Agreement?

A prenuptial agreement, also known as an antenuptial agreement, is a contract entered into between two people contemplating marriage. The purpose of a prenuptial agreement is to determine what each person’s assets will be in the event of divorce or death. In order to be valid, a prenuptial agreement must be executed before the wedding. Both parties should have legal counsel and full financial disclosure of all assets of the parties is a must. The agreement is generally enforceable if it is executed properly and there is no fraud or duress involved in its execution.

What happens if I don't have a Prenuptial Agreement?

If you don't have a prenuptial agreement, the divorce laws of the State of Florida at the time of your divorce will apply to your situation, and the laws of inheritance will apply if you die. If you are comfortable allowing the state laws to determine the distribution of your assets at the time of divorce or death, then there is no need for a prenuptial agreement.

What are the State Laws of Inheritance?

These are very complicated in Florida. One cannot completely disinherit a surviving spouse. Under Florida law, if you write a will that leaves nothing to your spouse, the law gives your spouse a right to claim his or her forced share of your estate.

Contact Florida Prenuptial Attorney,
Eric N. Klein, Today!
561-353-2800 or by Email

What are the State Laws of Divorce?

These laws are also complicated and hard to summarize in one paragraph in that the courts have a great deal of discretion in awarding alimony and dividing property in the event of a divorce. As a general rule of thumb, in Florida, the longer you are married, the more likely it is that your entire estate will be divided equally with your spouse upon divorce. In a short term marriage the most typical approach is to return the parties to the situation they were in before they got married. There is no hard and fast rule on what constitutes a short term marriage or a long term marriage. The courts consider as factors what your assets were at the time of the marriage, but merely because they were assets acquired before the marriage does not exempt them from division at the time of divorce. If there are any extenuating circumstances, a court can award alimony or divide assets to aid a sick or disabled spouse even if the marriage was for a very short period of time. Courts are also entitled to consider marital fault when dividing assets and awarding alimony so there is no way of completely anticipating what will happen to your property in the event of divorce.

So why have a Prenuptial Agreement if State Law covers these things?

The reason to have a prenuptial agreement is so that you can determine in advance how to handle inheritance, division of assets and alimony in the event of a divorce. If you desire a greater degree of certainty, you can expect that under most circumstances a judge will enforce a validly executed prenuptial agreement.

So, for example, if it is your desire that you want all of your property to remain yours in the event of divorce, or to go to your parents, or children from a prior marriage, upon your death, that is something that will generally be enforced in a prenuptial agreement, but without a prenuptial agreement, state law would generally not permit it. With respect to alimony, the case law is a little less clear, but, if a prenuptial agreement contains a provision in which both parties waive alimony, this provision will generally be enforced, at least in a short term marriage. If the marriage lasts a long time or one spouse is particularly in need of financial help at the time of divorce, it may be possible that a prenuptial agreement will not be enforced, based upon all of the facts of that particular case.

So each case is different. The benefit of a prenuptial agreement is that you are increasing the chances that you can predict what will happen if you divorce or die. But there is no absolute certainty.

If you have any questions about prenuptial agreements, contact Florida Prenuptial Attorney, Eric N. Klein at 561-353-2800 or email him today.