Do I need a prenup?

Do I need a prenup?

Premarital agreements are a complex area of Family Law. Often heavily disputed in courts, it is important to understand the purpose and legality of premarital agreements. There are many Tallahassee divorce lawyers who can draft a prenuptial agreement for you or who can review a prenup to analyze how it will effect you in the event of a divorce.

What is a prenup?

A prenuptial agreement, or a “prenup”, is a legal contract created between two prospective spouses. The contract is drafted before the marriage and details the distribution of debt, property and alimony in the event of a divorce. Divorce lawyers in Tallahassee and throughout Florida must be versed in the statutes and cases that govern prenup agreements.

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The purpose of a prenup is to create a mutual agreement between two future spouses if a divorce should occur, rather than having a judge determine the distribution of the before mentioned assets. For example, if a husband and a wife file for divorce without a prenup, one spouse may be able to claim alimony (periodic payments from the other spouse). However, if a Tallahassee divorce lawyer has prepared a prenup that indicates alimony would not be recoverable in the event of a divorce, then this agreement can be incorporated into a prenup.

The Uniform Premarital Agreement Act

The Uniform Premarital Agreement Act (UPAA) is an act detailing prenuptial agreements in the U.S. Since its creation, it has been adopted by Florida and 26 other states. The UPAA currently provides the laws governing Florida’s premarital agreements including what can be provided and legally guaranteed in a prenup. However, Tallahassee family lawyers and divorce attorneys throughout Florida must be aware of the case law that interprets these statutes and how they will effect a given case.

In Florida, a prenup can contain a wide range of contracted details including spousal rights to property, life insurance of the other spouse and future spousal support. In addition, a prenup can also contain “Any other matter…” as long as it is not in violation public policy or criminal laws. A prenup must also not adversely affect or infringe on the rights of a child. If a prenup is signed by both parties, it becomes binding upon marriage.

Can a prenup be voided?

The UPAA states that a prenup will be legally enforced, unless the opposing spouse can prove one of the following:

  • The spouse did not sign the document voluntarily.
  • The prenup was fraudulent.
  • The prenup was not reasonable. In order to prove this, a party must show that he/she did not have a reasonable understanding of the other spouse’s assets because they were not fully disclosed prior to the signing of the prenup.
  • If a marriage is not deemed void, a prenup is enforceable, but only so that the divorce does not result in an inequitable result.

A case study

Recently, Florida courts have followed a general trend of favoring rights that are implied in a prenup rather than explicitly stated. For example, consider the recent case heard by the Supreme Court of Florida: Hahamovitch v. Hahamovitch. It will be crucial for divorce lawyers in Tallahassee to understand the effects of the Hahamovitch case.

After filing for divorce, Mrs. Hahahmovitch argued that the prenup agreement she signed in 1986 did not explicitly give her husband rights to the enhanced value of her husband’s property despite the fact that the prenup entitled the husband to his property. However, on September 10, 2015, the Fourth District Court of Appeal did not side with Mrs. Hahamovitch and instead ruled in favor of Mr. Hahahmovitch. Essentially, the courts concluded that a prenup agreement does not have to explicitly detail a right to “enhanced value” if the right to that property is established in the prenup. In effect, courts are shifting responsibility to both spouses to agree to broad rights specified in their premarital agreement. Cases from the 4th District Court of Appeals are persuasive authority for Tallahassee family lawyers, but the Hahamovitch case will be binding on local trial courts so long as there is no conflicting case law from the 1st District Court of Appeals.

It is important to familiarize yourself with the opportunities available to you and your spouse before a marriage. Hiring competent attorneys can benefit both you and your spouse so that you do not run into issues if a divorce should occur. If you any further questions regarding prenups, please do not hesitate to reach out to your Tallahassee family law attorneys at Liebenhaut | Hesser.