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What is a Prenuptial Agreement?

November 11th • 7 min read

If you are considering embarking on the journey of marriage, you might be wondering exactly “What is a prenuptial agreement and do I need one?” These are legitimate and extremely important questions, and having a prenup is one of the best ways to avoid a contested divorce or estate probate conflicts should such occasions arise. Here, we will discuss what a prenuptial agreement is, when you should consider one, and answer other common questions about taking this legal precaution prior to marriage.

prenupital agreement

Prenup 101: The Important Issues Premarital Agreements Discuss

In the majority of cases, couples will seek out a prenuptial agreement to override certain marriage laws in existence. In essence, a prenup supersedes such laws. Instructions in these contracts are actionable by law in cases where the parties part ways or one passes away.

These written contracts will typically cover financial components of the couple’s situations and will dictate final decisions couples make concerning:

  • Dividing and/or ownership of debts
  • Dividing and/or ownership of property and assets
  • Use of property and/or assets
  • Right to alimony or spousal support
  • Inheritance of property

However, a prenuptial agreement can serve a number of purposes beyond addressing divorce or death which we’ll discuss more later.

Who Needs a Prenuptial Agreement?

Depending on the couple’s situation, there are times when having a prenup in Florida is a really good idea. After all, you don’t want these decisions boiling down to what current state laws dictate solely. This is your opportunity to make your wishes known and to clarify any financial issues before walking down the aisle.

While not all couples will have the same issues they want or need to address, these are some circumstances in which our Daytona family lawyer recommends putting one into place.

  • Second or third marriages in which children are involved
  • When one partner has accumulated heavy debts or has complicated asset holdings
  • One partner is much wealthier or may receive a sizable inheritance
  • Unions in which one of you has a lucrative job or high income
  • When you have or plan to invest in valuable property or asset holdings
  • If one party owns a business or if partners co-own one
  • When one spouse has or plans to become involved in a profession with financial risks
  • One party plans to support the other’s educational pursuits
  • Marriages in which one or both spouses are seriously ill or are along in age

By no means is this list all-inclusive, as just about any type of agreement you choose to make with your betrothed can be included as a part of a prenuptial agreement in Florida. Stipulations about ‘what if?’ situations can also be components of these contracts.

Prenups Aren’t Always About Divorce

A prenuptial agreement can serve a number of purposes beyond addressing divorce or death. Prenups are often set up to ensure that all parties and their family members (such as adult children) are clear on specific rights held by both parties in the contract. These might include expectations, ownership and how assets and property are to be used during the term of the marriage.

However, in cases of death, a prenup can be used to supercede a final will for the estate. This ensures the prenup is honored by the estate even if the documents don't agree. It provides a strong case for the complaintant should the agreement be contested by other interested parties.

Such agreements can also include stipulations that outline marital goals and measures to be in place to reach them. This might include supporting one partner during higher education or setting up a monthly expense account for a spouse. Stipulations can be added to such agreements concerning conflict and resolution efforts such as incidents of bad faith by one party or to mandate mediation prior to the dissolution of a union.

What are the Risks of Not Having a Premarital Agreement?

Should you opt to not have a prenup put in place, you will be held accountable to the rules of the state in which the divorce is sought. If a couple has transferred to a new state, the laws are likely to differ in divorce cases, which could hold you accountable for contingencies like alimony or various child support rules, etc.

Not having a prenup is very risky for couples with high earnings or aspirations. Remember, life can change for the better or worse at any time, and not setting up a plan beforehand could cost you big time financially. One party could seek excessive support or one party might find themselves stuck in excessive debt or held liable for their spouse’s wrongdoing in certain situations without a prenup.

What are the Pros and Cons of Premarital Agreements?

The upside of arranging certain agreements prior to marriage include the fact that each spouse’s current assets and debts are documented to distinguish what is separate property and community property, and what type of property division will be made ultimately. A legal contract is established between parties that can assist in avoiding lengthy and costly litigation down the line.

Potential drawbacks to prenups might include that decisions are being made in advance of the marriage and might be somewhat uniformed, misguided or premature. However, the contract can be changed any time both parties agree to it. If one partner carries much more wealth than the other, feelings of mistrust or resentment can develop and create an imbalance of power.

Talk Prenups with the Family Law Attorneys at The Law Offices of Leonard R. Ross

Taking chances trying to write your own prenup or using online software is risky. However, should you go that route at least let an attorney look it over to ensure validity. That being said, it’s highly recommended to let an experienced family lawyer help you draft your prenuptial agreement

Our experienced family law attorneys are here to answer your questions about prenuptial agreements and will help you get through the trials of your family legal needs at any stage of the game. Contact the Daytona law office of Leonard R. Ross online or call 386-200-9950 to schedule a consultation.