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A Thoughtful Approach to Florida Prenuptial Agreements

April 20, 2020 by in General

A Series of Actions in Florida Prenuptial Agreements

Miami, Fort Lauderdale, Boca Raton, Palm Beach and Naples, Prenuptial Agreements, and Prenuptial Agreements in Florida

There are different lawyers for different kinds of disputes, and choosing the right type of lawyer for your family law issue is necessary.  Hiring a family lawyer is sometimes a decision of last resort, either because it means that a situation in the family cannot be resolved by any other method, or it could lead to a possible uncomfortable situation with your spouse or soon-to-be spouse.  If you do retain a family law attorney, it should be the right fit for both your personality as well as your issue. Choose the best family lawyer for you, who knows how to tread carefully with sensitive subject matters. He or she should be able to perform their job as efficiently as possible. The hopeful result should be a resolution that leaves everyone involved feeling somewhat if not totally satisfied.  However, a sense of peace comes when familial conflict or pressures are put in the past and people can move on with their lives.

Family lawyers help you deal with all the legal issues that can arise within a family law setting. They help you deal with the complexities of divorce issues such as alimony, estate, asset or liability division as part of a divorce.  Some couples plan for this hopefully unlikely scenario before you are married through a Florida Prenuptial Agreement.  This can help you greatly should you wind up having to proceed through divorce court.  Unfortunately, the percentage of couples who experience divorce in the U.S. is around 50%, and divorce lawyers are often called upon to handle these cases. Not only can they help ease the divorce process itself, but it can also help guide you in the context of support, living arrangements, children’s issues like timesharing (child custody or visitation), child support, and more.  This is why choosing the best divorce lawyer or family law attorney for your particular case is so important.  But what about before you get married, is there any planning you can do?  Can you try to minimize the cost and complexity of a divorce before you get married?  The answer is yes.  Choosing the best divorce lawyer or family law attorney to help you pre-marriage can help you enter into Florida prenuptial agreements (or help you enforce your prenuptial agreement later).  We often work with parties in their Miami, Fort Lauderdale, Naples, Boca Raton and Palm Beach, FL Prenuptial Agreements, as well as all other cities within Miami-Dade County, Broward County, Palm Beach County and across the state of Florida (as the Prenuptial Agreement laws are the same throughout the state).

Florida Prenuptial Agreements: Do I Need a Prenup and How Do I Make One?

  • A Florida Prenuptial Agreement is essentially a contract between yourself and your future spouse. It lays out how you’re going to deal with assets, liabilities, and alimony in the case of a divorce. There may be multiple reasons why you want to form a prenuptial agreement and many issues that can be included in one. Such agreements tend to reduce risk and provide protection in all financial matters.
  • A Florida prenup, whether in Miami, Fort Lauderdale, Palm Beach, Boca Raton, Naples, or anywhere else within the state, can protect premarital assets, family businesses or property and your estate plan. They also allow each party to avoid debt liabilities. This means a spouse may not be liable for another spouse’s debts for things such as education or credit cards, which they otherwise could be responsible for in the divorce. A prenuptial agreement, antenuptial agreement, or premarital agreement is commonly abbreviated to “prenup” or “prenuptial.” It is a contract entered into before marriage, civil union or any other agreement before the main agreement by the people intending to marry or contract with each other.  This differs from a Postnuptial Agreement, which is entered during the marriage. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of the marriage. They may also include terms for the forfeiture of assets and exclusions for items like income you earn during the marriage, the marital effort that you put forth to build the value of a business or asset, as well as the future use of premarital assets or monies.

 Should You Get a Prenup in Florida?

  • Prenuptial agreements in Florida can vary when compared to prenuptial agreements in other states.  The laws governing Florida prenups are the same in Miami, Fort Lauderdale, Boca Raton, Palm Beach, Naples as they are anywhere else in Miami-Dade County, Broward County or Palm Beach County because the laws are governed by the state.  That is why we are called to draft prenuptial agreements across Florida, whether it be South Florida, Central Florida (Orlando, Tampa, etc.) or North Florida.
  • It is important to know exactly how these agreements can affect you and to make sure you understand the rules in your state.  Different states allow different prenuptial agreement protections and provisions.
  • It is always important to know the information and guidelines regarding prenuptial agreements between spouses.  This includes not just how they are drafted, but also about the enforcement of Florida prenuptial agreements as well as efforts to set aside a prenup.
  • In Florida, the prenup is essentially a financial agreement between spouses. It lays out responsibilities and guidelines in the event of a divorce.  Should you go through divorce later, the idea is that the prenuptial agreement is brought out, the Court is asked to enforce it, and the divorce process should be streamlined and hopefully much less expensive.
  • The prenup can also provide information on allocation of assets should one spouse die before the other, and how that relates to the execution of a legal will or creation of a trust or estate plan.

 THE CONTENT OF FLORIDA PRENUPS;

Prenuptial Agreements in Broward County, Miami-Dade County, Palm Beach County and across Florida often include:

  • The division of property, assets, and liabilities (equitable distribution).  This can include business interests, inheritances, stocks, retirement accounts, cash accounts, debts, real estate, rental properties, and the like.
  • Spousal Support or alimony (including whether alimony will be paid and if so, will it be rehabilitative, bridge the gap, durational or permanent.  If there is alimony, you can govern when it will be paid (e.g., after how many years of marriage) as well as the amount.  Your prenuptial agreement can ensure that there is no alimony at all (an alimony waiver), or that alimony is paid fairly following the length of the marriage.  However, Florida Prenuptial Agreement Laws do not allow you to waive temporary alimony (that paid before the end of the divorce).
  • Children’s issues are typically not permitted to be governed by a Florida Prenuptial Agreement.  However, parents can include their intentions or wishes (which may not be binding but could be persuasive) on issues like Time Sharing (child custody or visitation), child support (particularly on otherwise non-required items like college tuition obligations, etc.)  and other issues which could relate to children.  Of course, many times parties entering into a prenuptial agreement do not have children yet; that is another reason why hopes and intentions can be stated but may not be binding at the time of divorce.
  • Specific terms to be carried out in the event one spouse engages in wrongdoing, such as dissipation of assets or committing adultery.
  • This is just the tip of the iceberg.  Prenuptial agreements allow a marrying couple to get creative and provide for almost any contingency in the event of a divorce, so long as it is not against Florida’s laws or public policy.

REQUIREMENTS FOR PRENUPS IN FLORIDA:

Florida Prenuptial Agreement Laws are covered by the Uniform Premarital Agreement Act or the case of Casto v. Casto, depending upon when the Agreement is entered.  Again, this does not matter if you are in South Florida (Miami, Fort Lauderdale, Naples, Boca Raton, Palm Beach, etc)., Central Florida (Tampa, Orlando, etc.) or North Florida, as the state laws remain the same. Some of those Florida Prenuptial Agreement requirements are:

  • Provisions to both parties which are not contrary to other Florida laws or Florida’s public policy.
  • Include certain formalities with execution.
  • Must be read and signed by both parties
  • Cannot be an oral agreement
  • Be validated by a marriage

At Young, Berman, Karpf & Gonzalez, P.A. our Florida Bar Board Certified Marital and Family Law lawyers are often called upon to draft Florida Prenuptial Agreements, to enforce Prenups later, or to set aside a Prenuptial Agreement which may be contrary to Florida law.  This also requires a thorough understanding of Florida Family Law.

An Outline of Florida Family Law

The rising frequency of family issues like divorce across the country makes the need for an experienced and knowledgeable family law lawyer more important than ever. Few people realize the extent of family law before they are having to live through it. The majority of families law issues are governed by Florida state law. There are mainly two types of family law relationships :

  • Marriage Relationship – marriage, divorce, prenuptial agreements.  This is where issues like equitable distribution of assets and liabilities, alimony, and children’s issues (parental responsibility, timesharing (child custody or visitation) and child support), and attorney’s fees come into play.
  • Parent-Child Relationships – paternity and children born out of wedlock.  These involve determining parentage and paternity, timesharing (child custody or visitation), and child support obligations.

In a Family, the law lays out and protects the rights and responsibilities of family members. Family members need to understand their rights and responsibilities about not only their finances but also how divorce and paternity issues affect children. Starting with Marriage Relationships – How is a Marriage Relationship created? There are generally two possible ways as follows:-

  1. Formal Marriage or Ceremonial Marriage in which a license is obtained.  This is how marriages are solidified in Florida.
  2. Informal Marriage or Common Law Marriage where a license is not a must but differs according to some State/s Jurisdictions.  Florida does not recognize common law marriage.

What are the Rights and Obligations of the Parties involved in Family Law?

  • What property rights do the parties have? Marital assets typically include those acquired during the marriage (with exceptions).
  • What liability for debts do the parties have? Marital debts typically include those created during the marriage (with exceptions).
  • Alimony and child support obligations.
  • Children’s issues like parental responsibility and timesharing (child custody or visitation).
  • Attorney’s fees, such as who will pay?
  • And many sub-items under these categories, such as business interests, retirement accounts, dissipation of assets and the like.

Upon Divorce, how are these issues to be decided?  While Florida law is the same whether, in Broward County, Miami-Dade County, Palm Beach County or anywhere else in Florida, different jurisdictions may have different customs or results.  That means that considerations of your divorce in Miami can be different than Fort Lauderdale, which can be different than Boca Raton or Palm Beach, etc.   Even different judges in the same county or part of the state could lead to different results, so long as the results are in the range of reasonableness provided by Florida law.  This is another reason why having a valid and enforceable Florida Prenuptial Agreement can be so beneficial and minimize conflict in the event of a divorce.  Parties who are not involved in a premarital agreement or prenuptial agreement before marriage may have additional issues to address during divorce, which could have been planned out beforehand.  Florida Prenuptial Agreements, therefore, remains a necessary consideration before getting married.

How a Marriage Relationship terminated?

  • Death
  • Divorce (In Florida, this requires one party to claim that the marriage is irretrievably broken and does not want to be married anymore).
  • Annulment happens when you prove to the Court that your marriage is void.

In addition to dealing with marriage relations and parent-child relationships, family law also deals with other issues not necessarily in the context of an original divorce or paternity lawsuit. There are several other types of family law issues, each one involving different circumstances. Most common types of family law or other family law related matters are as follows:

  • Contempt and Enforcement Orders, such as when a person compelled to pay child support or spousal support.  Once granted an alimony or child support award, it remains enforceable until modified or terminated by Florida law.  Alimony is an allowance or amount which a court orders one party to pay to the other as financial support, based upon need, ability to pay, and the lifestyle enjoyed during the marriage.
  • Enforcing timesharing or parental responsibility rights in Florida (also known as child custody or visitation).  These include rights to physical, video and phone contact with their child, or situations where the parents cannot agree on a holiday or timesharing schedule.
  • Enforcement or contempt of property divisions.

What about Alimony ‘Reform’ in the Florida State, and do we consider that in a Prenuptial Agreement?

Miami, Fort Lauderdale, Boca Raton, Naples and Palm Beach, and across South Florida, Central Florida and Florida there have been advocates for and against Florida alimony reform.  So far, no such laws have been passed so until they are, any discussion on alimony reform is tentative on the future.

Florida Statute Section 61.08 covers Florida Alimony Laws and related provisions. If there is a divorce case either pending or finalized between couples and one spouse is required to contribute to the financial support of the other spouse, whether on a temporary or long term basis, that is known as ‘Alimony’  While this used to be primarily a Husband paying alimony to a Wife, traditional alimony rights and terms have changed greatly and we often see a Wife paying alimony to a Husband.  Either spouse is entitled to alimony and it depends on two major parameters.

Two main threshold issues need to be addressed first in ‘Alimony’:- Two issues that are judged who have to consider first before determining whether to order alimony

  1. Does the spouse claim alimony need the alimony?
  2. Does the other spouse have the capability to pay alimony?

The above-cited issues met there is a question of what type of alimony? Statutorily under Florida Family Law, there are four types of alimony;

  • Bridge-the-Gap Alimony – Bridge-the-gap alimony is very short-term alimony. It is only fruitful to help the recipient during the transitional period after the divorce. This type of alimony can last a maximum of two years and is worth to meet short-term needs.
  • Rehabilitative Alimony – Rehabilitative alimony helps one spouse to support themselves while they work on being able to support themselves. This includes paying for education or training that is necessary to secure gainful employment. To receive rehabilitative alimony, the requester must submit a plan which indicates the time and money required to achieve his or her goals.
  • Durational Alimony – A court may decide that durational alimony is the best possible option. The court may opt durational alimony method if other options are insufficient. The length of durational alimony is dependent on the length of the marriage.  Durational alimony cannot exceed the length of the marriage, and a good rule of thumb for consideration is often half of the length of the marriage.
  • Permanent Alimony – Permanent alimony is awarded where no other form of alimony is fair and reasonable under the circumstances, as one spouse will need support for the indefinite future.
  • While alimony reform has been attempted in Florida for several years now, until a law is passed, those changes are not in effect.  While your Prenuptial Agreement can make provisions based upon the chance that Florida law changes in the future, it should be clear and also provide alternatives.

Conclusion:

Florida Prenuptial Agreements can be a safe way to protect your assets and govern alimony and support before you get married in the event a divorce ends up occurring. Finding the best Family Law Attorney who handles Prenuptial Agreements is an important factor.  Florida’s Prenuptial Agreement laws are the same in Broward County, Miami-Dade County, Palm Beach County and across the state of Florida, but finding a divorce and family law lawyer who has experience in drafting Prenuptial Agreements is important so that you can reduce the chances of having the prenup set aside during divorce.

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