Orlando

Prenuptial Agreement

Attorneys

As your firm, we will help you with every aspect of the pre-nuptial or post-nuptial agreement process. The Orlando Family Firm is a full service law firm with significant experience in handling pre-nuptial or post-nuptial agreements.

Q:  What is a pre-nuptial agreement?

A pre-nuptial agreement is an agreement between prospective spouses made in contemplation of marriage.

Q:  In entering into a pre-nuptial agreement, what is the waiving party actually contracting to?

A:  By entering into a pre-nuptial agreement, the waiving party is agreeing to give up of all their rights and to all benefits that would pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the agreement or waiver.  Florida Statutes § 732.702 (2002).  The waiving party is relinquishing all known rights by a party in possession of all known material facts as to the rights they are relinquishing.  De Garcia’s Estate v. Garcia, 399 So. 2d 486 (Fla. 3d DCA 1981), review denied, 407 So.2d 1103.

Q:  Are pre-nuptial agreements only for people who have significant assets?

A:  No.  While pre-nuptial agreements are beneficial to individuals who have significant assets, pre-nuptial agreements are also beneficial for many other types of individuals.  For example, individuals who may be receiving an inheritance, who are new professionals hoping to accumulate future income and wealth, who are starting a new business, or who had an earlier failed marriage could also benefit from having a properly drafted prenuptial agreement.

Q:  What topics does a pre-nuptial agreement cover?

A:  The parties to a pre-nuptial or post-nuptial agreement may make a contract pertaining to:

  • the rights and obligations of the parties in any of the property of either or both of them whenever and wherever acquired or located; the right to buy, sell, use, transfer, exchange, lease, assign, mortgage, encumber, dispose of, or otherwise manage and control property;
  • the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
  • the establishment, modification, waiver, or elimination of alimony;
  • the making of a will, trust or other arrangement to carry out the provisions of the agreement;
  • the ownership rights in and disposition of the death benefit from a life insurance policy.

Florida Statute § 61.079.

Q:  Can the right of a child to support be affected by a pre-nuptial agreement?

A:  No.  Florida Statute § 61.079.

Q:  What type of property can be included in a prenuptial agreement?

A:  The parties can contract their rights as it pertains to property that includes present or future, legal or equitable, vested or contingent, interests in real or personal property, which may be tangible or intangible.  This may include income and earnings, both active and passive.  Florida Statute § 61.079.

Q:  When does a pre-nuptial agreement become effective?

A:  A pre-nuptial agreement becomes effective upon the marriage of the parties.  Florida Statute § 61.079.

Q:  What requirements must be met for a pre-nuptial agreement to be valid?

A:  In order for a prenuptial agreement to be valid, the party relinquishing their rights under the agreement must sign the agreement in the presence of two subscribing witnesses.  Florida Statutes § 732.702 (2002).  No disclosure of assets must be made from one spouse to the other spouse.  Florida Statutes § 732.702 (2002).

Q:  What constitutes a valid pre-nuptial agreement?

A:  A valid pre-nuptial agreement contemplates a fair and reasonable provision therein for the party waiving their spousal rights, or, absent such provision, a full and frank disclosure to the party waiving their spousal rights, before the signing of the agreement, of the other party’s worth, or, absent such disclosure, a general and approximate knowledge by the party waiving their spousal rights of the prospective spouse’s property.  Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962).  In weighing the fairness and reasonableness of the provision for the party waiving their spousal rights, the courts will consider the relative situation of the parties, their respective ages, health and experience, their respective properties, their family ties and connection, the party’s needs and such factors as tend to show whether the agreement was understandingly made.  Id.; Casto v. Casto, 508 So. 2d 330 (Fla. 1987).

Q:  Are there any circumstances under which a pre-nuptial agreement cannot be enforced?

A:  A pre-nuptial agreement is not enforceable if the party against whom enforcement is sought proves that:

  • the party did not execute the agreement voluntarily;
  • the agreement was the product of fraud, duress, coercion, or overreaching; or
  • the agreement was unconscionable when it was executed and, before execution of the agreement, that party:was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
  • did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
  • did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Florida Statute § 61.079.

Q:  After the parties’ marriage, can the pre-nuptial agreement be changed?

A:  After the parties’ marriage, a pre-nuptial agreement can be amended, revoked, or abandoned but only by a written agreement signed by the parties.  There is no requirement that the parties exchange consideration for the amendment, revocation, or abandonment.  Florida Statute § 61.079.

Q:  What are the advantages of entering into a pre-nuptial agreement?

A:  The advantages of entering into a pre-nuptial agreement are many.  A pre-nuptial agreement helps the parties avoid litigation costs, protects against fears of family members, protects the parties’ family and business assets, and protects the parties against creditors.

POST-NUPTIAL AGREEMENTS

Q:  What is a post-nuptial agreement?

A:  A post-nuptial agreement is an agreement between two spouses entered into after the parties’ marriage to settle the parties’ affairs and assets in the event of a separation or divorce.

Q:  In entering into a post-nuptial agreement, what is the waiving party actually contracting to?

A:  By entering into a post-nuptial agreement, the waiving party is agreeing to give up of all their rights and to all benefits that would pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the agreement or waiver.  Florida Statutes § 732.702 (2002).  The waiving party is relinquishing all known rights by a party in possession of all known material facts as to the rights they are relinquishing.  De Garcia’s Estate v. Garcia, 399 So. 2d 486 (Fla. 3d DCA 1981), review denied, 407 So.2d 1103.

Q:  What may the parties to a pre-nuptial agreement contract with respect to?

A:  The parties to a pre-nuptial or post-nuptial agreement may make a contract pertaining to:

  • the rights and obligations of the parties in any of the property of either or both of them whenever and wherever acquired or located; the right to buy, sell, use, transfer, exchange, lease, assign, mortgage, encumber, dispose of, or otherwise manage and control property;
  • the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
  • the establishment, modification, waiver, or elimination of alimony;
  • the making of a will, trust or other arrangement to carry out the provisions of the agreement;
  • the ownership rights in and disposition of the death benefit from a life insurance policy.
Q:  What requirements must be met for a post-nuptial agreement to be valid?

A:  In order for a post-nuptial agreement to be valid, the party relinquishing their rights under the agreement must sign the agreement in the presence of two subscribing witnesses.  Florida Statutes § 732.702 (2002).  Additionally, each spouse must make a fair disclosure to the other spouse of that spouse’s assets.  Florida Statutes § 732.702 (2002).

Q:  What constitutes a valid post-nuptial agreement?

A:  The critical test in determining validity of a post-nuptial agreement is whether there was fraud or overreaching on one side, or, assuming unreasonableness, whether challenging spouse did not have adequate knowledge of marital property and income of parties at time agreement was reached.  Casto v. Casto, 508 So. 2d 330 (Fla. 1987).

Q:  Are there any circumstances under which a post-nuptial agreement cannot be enforced?

A:  A post-nuptial agreement is not enforceable if the party against whom enforcement is sought proves that:

  • the agreement was the product of fraud, duress, coercion, or overreaching; or
  • the agreement makes an unfair or unreasonable provision for that spouse by demonstrating the parties’ relative situations, including their respective ages, health, education, and financial status.

Casto v. Casto, 508 So. 2d 330 (Fla. 1987).

Q:  Can a post-nuptial agreement be changed after it is entered into?

A:  Yes, a post-nuptial agreement can be modified if the party against whom enforcement is sought can demonstrate that the post-nuptial agreement was originally reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.  Casto v. Casto, 508 So. 2d 330 (Fla. 1987).

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