The Role of Prenuptial Agreements in Divorce
When couples begin conversations about getting married and starting a future together, they are understandably reluctant to consider what could happen if the relationship does not last. At the outset of any happy time it is difficult to think about possible negative futures, but unfortunately not all marriages survive, and thinking about the financial ramifications of a divorce should lead many couples to explore the benefits of a prenuptial agreement. Prenuptial agreements are contracts executed before a couple marries that outline how property will be divided if they later divorce. The divorce of celebrity couple Brad Pitt and Angelina Jolie is the situation most people envision in which a prenuptial agreement has value. Thus, many couples believe, especially if they are young, that prenuptial agreements are unnecessary because they own very little of value, but it is hard to predict what a person’s financial situation will be in twenty or thirty years, and substantial assets could accumulate during the life of the marriage. In addition, if person is entering a second or third marriage, he/she will likely possess sizeable property and/or have concerns about protecting property for children from an earlier marriage. In either case, a prenuptial agreement would address these issues.
Creating a Prenuptial Agreement
The most important thing to realize about prenuptial agreements is that they must be created before the marriage occurs, and are only effective if the marriage takes place. As such, if a couple drafts an agreement, but later decides to skip marriage in favor of living together, the contract has no force as a prenuptial agreement if the couple later breaks up. The legal formalities for prenuptial agreements are simple: it must be written, and signed by both parties. Any changes to the content or decisions to revoke a prenuptial agreement must be writing and signed by both parties as well. Putting together the bare bones of an agreement is relatively easy, but figuring out which terms are permissible and make sense for each person’s unique situation requires more work.
What Can the Contract Say?
Florida law limits the content of prenuptial agreements to the division of a party’s financial assets, real and personal, tangible and intangible, and specifically delineates what the agreement may address. The permissible terms of a prenuptial agreement include:
- the rights of each party over property acquired at any time or under any circumstances;
- the right of either party to buy, sell, transfer, manage, or control property;
- what happens to property upon divorce or the occurrence of another event;
- whether and how spousal support will be paid;
- who retains ownership rights in death benefits paid under a life insurance policy; and
- the need to create a will, trust, or other estate planning arrangement to carry out the terms of the prenuptial agreement.
Note that prenuptial agreements cannot reduce or eliminate a party’s right to pay or receive child support, and if the elimination or modification of spousal support would cause a party to qualify for government assistance, a court has the authority to order spousal support notwithstanding the terms of the prenuptial agreement.
Get Legal Advice
The complexity of a prenuptial agreement is entirely dependent on the wishes of the parties and types of property they own, so do not assume a highly technical agreement is needed in every situation. However, protecting carefully accumulated assets is always in your best interest, and an experienced family law attorney can help you accomplish that interest. The Tampa Bay law firm All Family Group, P.A. is well versed in all areas of marital and divorce law, and is ready to help you with all your legal needs. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.
by Lynette Silon-Laguna Google+