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What makes a prenuptial agreement stand up in court?

Prenuptial agreements have become an important component of marriages in Florida, particularly when it will not be the first marriage for one or both spouses. But the prenup isn't legally airtight, it may be challenged in divorce litigation, particularly if they fail to meet the basic requirements under Florida's laws for contracts. 

This blog post will explain the factors that must be considered when drafting a prenuptial or post-nuptial agreement.

What can a prenuptial agreement do for you?

With few exceptions, any assets and debt accumulated during the course of a marriage in Florida may be classified as marital property and subject to equitable distribution between the parties. This does not mean that everything is converted to cash and the pile split right down the middle. It simply means that the property is subject to valuation and a negotiated settlement or litigation is required to determine how the property should be divided. 

Spouses with significant personal assets, however, may wish to ensure their property remains separate, in the event of divorce. The reasons vary, but often include protecting personal assets to pass down to children of a previous marriage. Through a valid prenuptial agreement, parties agree ahead of time what personal property (assets and/or debt) should remain separate. As long as the assets are not commingled (mixed together) with common marital assets during the marriage, the property specifically listed in the agreement will remain the separate property of the spouses.

Can prenuptial agreements be broken?

If the drafted agreement fails to meet the standards Florida courts expect of a valid contract between the signing parties, prenuptial agreements may be challenged for their validity. While any "contract" between parties may be open to interpretation and litigation, there are some important considerations that should be made when drafting and signing an agreement.

Legal representation: While one family law attorney may be chosen to draft the agreement, both signing parties must either be represented by their own lawyer, or forego hiring an attorney and choose to represent themselves.

Time: Both parties must be given sufficient time to consider the terms and conditions of the agreement. While the amount of time can be debated based on the circumstances, a minimum of six months prior to the marriage is a general rule of thumb.

Pressure: Neither party may feel pressured, threatened or placed under any emotional duress to sign the agreement.

Equal access under the law: The legal and financial interests of both parties must be taken into consideration. 

Clarity: The language use to define the specific property and terms under which it will remain separate property must be clear and specific.

Getting it done right can make or break a prenuptial agreement

If you are considering marriage, it makes sense to discuss the benefits of a prenuptial agreement with an experienced Florida divorce and family law attorney. Call the Law Office of Dennis R. Wallace in Punta Gorda to arrange a free, no obligation consultation.

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