Marital Settlement Agreements

Prenuptial agreements, or premarital agreements, are legal contracts between potential spouses addressing how certain marital issues like alimony and property division will be treated in the case of a divorce. More specifically, couples can use prenuptial agreements to determine:

• each spouse’s ability to manage or control property during the marriage;
• how the couple will divide their property in the event of a divorce, death, or other event;
• whether one spouse will pay the other alimony during a separation or divorce, and if so, the amount and duration of payment;
• how each spouse’s retirement plans or pensions may be divided in the case of divorce;
• what will happen to life insurance policies;
• whether either spouse is required to write a will to carry out the terms of the agreement.

Any couple can seek to draft a prenup, but individuals who may particularly want to create prenuptial agreements include those who:

• own assets prior to the marriage that they want to protect from division in case of divorce;
• have children from a previous relationship and want to protect their future inheritance;
• have business interests that they would like to keep separate from their spouse if the marriage fails; or
• seek to establish whether one spouse will pay the other alimony in the case of separation or divorce.

After drafting and signing, the prenup agreement will take effect the moment the couple marries.

Note that valid prenuptial agreements must be in writing and signed by both spouses in order to be legally enforceable. As a result, prenups will not be enforceable by Florida law if a spouse can prove:

• they didn’t sign the agreement voluntarily;
• the agreement was only signed due to fraud, duress, or coercion; or
• the agreement was unconscionable when the couple signed it, and the spouse challenging the agreement:
  • wasn’t given a fair and reasonable disclosure of the other spouse’s financial circumstances;
  • didn’t waive in writing the right to receive a fair disclosure of the other spouse’s assets and debts; and
  • couldn’t reasonably have had knowledge of the other spouse’s financial circumstances.