Agreements like this are also frequently referred to as ‘premarital agreements’, ‘antenuptial agreements’ or simply ‘prenup’ – all of which are binding prenuptial agreements entered into prior to the marriage.
These are important agreements and require careful thought and should be drawn up with an experienced family law attorney. One can avoid extensive court battles if the agreement is drawn up properly covering all court requirements and states clearly what the agreement will ensure.
Generally, these prenuptial agreements apply to economic issues that can arise during a dissolution of marriage proceeding, such as dividing property (equitable distribution) or paying spousal support (alimony). Although some might call this ‘predicting failure’ or suggest that such an agreement is pessimistic, it provides a sense of certainty and comfort in an otherwise uncertain world.
Prenuptial agreements may be more appropriate for those with specific situations to address and protect. An individual who owns a business may wish to keep it separate in event of divorce. Or an individual who brings children to the marriage from a previous marriage may wish to simplify future inheritance issues in an agreement. Both individuals may have pre-marital assets they wish to protect.
At its most basic level, such an agreement is simply a contract between the prospective couple. Case law in Florida holds that prenuptial agreements must be in writing and signed by each individual to be valid. And the couple must end up married (the contract is, by definition, contingent on the marriage taking place). Further, it must include provisions that are substantively fair for the party attempting to challenge the agreement. Or the other party must make full financial disclosure at the time the agreement is executed.
Equally important, the agreement must be fully voluntarily. If a party is subjected to duress or coercion, or if a party does not fully understand the terms, it could render the agreement void. A court will consider a lack of independent counsel, the sophistication of parties in terms of their relative business and economic savvy, any time pressures or constraints imposed, and the parties’ knowledge of rights being waived (such as court-ordered remedies) when determining if an agreement was truly voluntary.