What is a prenuptial agreement?
A prenuptial agreement is signed by two people who are contemplating marriage. The purpose of the agreement is to predetermine some of the rights and responsibilities of each member of the marriage in the event that one of the following two scenarios occurs, and one will. These two scenarios are: 1) a divorce and 2) the death of a party during the intact marriage. You do not have to include both of these scenarios in a prenuptial agreement, the agreement may be written to apply to only one or the other.
As for the divorce scenario, you can largely predetermine what will happen with: 1) the division of assets and liabilities (also known as equitable distribution) and 2) the award of alimony, and 3) attorney’s fee awards. A prenuptial agreement cannot predetermine what will happen with minor child time-sharing or custody, nor with child support.
As for the “upon death” (or estate planning) scenario, a couple can agree to almost anything that is not offensive to the public policy of the state of Florida. This includes waiving or eliminating the particular Florida statutory provisions which restrict to whom married couples may leave their assets upon death and how they are permitted to do so.
Postnuptial agreements are similar in effect to prenuptial agreements except that they are signed by couples who have already entered into the bonds of marriage, as opposed to prior to the marriage. Though postnuptial agreements are similar to prenuptial agreements in how they operate, the rules for creating and signing them vary slightly.
What are the major reasons the Anton Legal Group suggests a couple should get a prenuptial agreement?
Consider the following reasons for a prenuptial agreement should you divorce:
- To protect your net worth;
- To protect you from debts incurred by your spouse;
- To protect your future income from alimony;
- To protect your children’s future inheritance;
- To limit your exposure to attorney’s fees; and
- To provide you with piece of mind during the inevitable rough patches of marriage.
Consider the following reasons for a prenuptial agreement in the event of death while married:
- To protect the inheritance of your non-spouse beneficiaries;
- To limit the effect of having the survivor spouse determine who will be the beneficiaries of your families unused wealth.
- To provide a supplement to your estate plan.
- To provide you with certainty and peace of mind.
These reasons for a prenuptial agreement will vary depending upon the particular circumstances of individuals. The use of a prenuptial agreement is not a one size fits all concept. Consider one marriage scenario with two 21-year-olds, who have no assets and few debts, who are about to begin similar careers, and neither anticipates receiving a large inheritance. A polar opposite scenario might be a couple who are both entering into their second marriage, who are in their sixties, who both have children from prior marriages, and who have very different net worth’s. The first engaged couple may have less of a need for a prenuptial agreement. For the second couple, the financially wealthier party may want to protect themselves and their separate children in case of a divorce. Both parties of the second scenario may want to protect their separate children in case of death while married to ensure that the children of the last surviving spouse do not receive all of the couple’s unused net worth.
The negotiation of a prenuptial agreement is a hugely important business transaction. In fact it is often the most important financial transaction of one’s life. These agreements frequently have both long lasting and large financial consequences which are only sometimes fully appreciated at the time of signing. In addition, these agreements are often negotiated and signed at a time when the happy parties are about to marry. As such, their natural senses of caution and skepticism are often muted. Put simply, they are blinded by love. Many times I have seen a trusting party who would sign anything in order to get the distasteful transaction done and return to their premarital bliss. This dangerous combination of event makes one’s need for experienced advice crucially important.
Can a prenup be discarded if both parties agree that they do not want it any longer?
Yes. Parties can discard a prenuptial agreement in two general ways. First, an agreement can include a sunset provision where all or a portion of its terms either terminate at a time certain or phase out over time. Second, both parties can agree to modify or terminate their agreement at a later date. However, both must agree.
What should someone bring to an appointment with the Anton Legal Group for a consultation on the prenuptial agreement?
For an initial consultation on a prenuptial agreement, you do not necessarily have to bring any paperwork, but you should bring the following general information:
- An understanding of your assets and liabilities and how each is titled;
- An understanding of your fiancée’s assets and liabilities and how each is titled;
- An understanding of any potential future inheritances or gifts which either you or your fiancée might receive in the future;
- You approximate income during the past and current year;
- Your fiancées approximate income during the past and current year; and
- Other obvious and typically known information about you and your fiancée.
If you want to bring paperwork, the best paperwork to bring is the income tax returns for both sides for the last two years. It would also be helpful to bring the most recent account statement for any significant financial accounts that you have, as well as any significant debts that you have.
In order for an agreement to be fully binding in Florida, you should make full financial disclosure. In order to address that topic, we typically add to the agreement a net worth and income statement for both sides. Accordingly, if someone argues many years later that someone did not provide full financial disclosure at the time of the signing of the agreement, then we show that it was attached. Thus, it does not become a he-said, she-said kind of a scenario.
Why should someone choose the Anton Legal Group for creating their prenuptial agreement?
We have prepared well over one hundred prenuptial agreements. Over the years the laws which govern both the interpretation and enforcement of these agreements have significantly change on several occasions. We keep abreast of the law through regular research and the attending of seminars. We know the law, we understand most scenarios, and we have litigated the cases. When entering into such an important transaction at such an emotional time, it only makes good business sense to use a professional who is both experienced and knowledgeable.