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Prepare to scrutinize premarital agreements when getting divorced

On Behalf of | Jan 9, 2024 | Prenuptial Agreements |

Premarital agreements – also referred to as prenuptial agreements or “prenups” – are commonly used in many Florida marriages. Often, this is due to one or both parties having substantial assets, owning a business, being in line to inherit a major sum or to protect themselves in the event of divorce.

Frequently, people are unhappy with the terms of the premarital agreement when the couple moves forward with a divorce proceeding. That could be from either perspective – the person who had the bulk of the assets entering the marriage or the one who had less. Although most of these agreements are upheld, there are times when they are not. Knowing the facts about premarital agreements, when they are valid, why they might be nullified and how to address concerns is imperative in a family law case.

What should I know about premarital agreements?

Just like any contract, the premarital agreement will state what happens if the marriage does not work out and the couple gets divorced. It can cover property division, spousal support, insurance policies, retirement accounts and estate plans. There are basics that must be understood from the start such as both sides signing and agreeing to it.

Regarding the content of the premarital agreement, it will specify what each person will keep or receive as part of the divorce. For example, if there is a marital home, vacation property, automobiles, sentimental items and collectibles, the premarital agreement can stipulate who will receive what. The person who entered the marriage with fewer assets might get a certain amount, but the property will not be assessed and divided by the court as part of the proceeding.

Spousal support can be a sticking point in the agreement and the person who is set to receive little or no support could question the fairness of such an agreement after the fact. Child support cannot be part of a premarital agreement, so if the couple has children, the agreement is not an issue in providing for the child.

There are situations in which the agreement’s validity could be questioned when there is an attempt to enforce it. There are several key factors that the court will consider if there are allegations that the agreement should not be enforced.

It must have been signed willingly. An involuntary agreement will not be considered valid. In some instances, a person forces the other party to sign the agreement. Perhaps they did not inform them of their financial and business situation; they might have coerced them by saying that there would be no wedding without signing it; or they might have committed fraud.

The court will also consider whether the agreement is fair. If it is not, it is called “unconscionable.” If the person signing it will be left destitute after the marriage is over, that could be considered unfair and the court can decide that the agreement should not be upheld. The person seeking to uphold the agreement could defend it by saying that the other party waived their right to have all property disclosed.

Analyzing a premarital agreement is imperative in a divorce

There are extensive consequences with a premarital agreement that people need to be aware of when they get divorced. These happen with people who have a lot to lose in a divorce and they need to be protected. To protect the agreement and make sure it is upheld or to call it into question, it is wise to understand the options and take the necessary steps to try and reach a positive result through negotiation or by going to court.


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