Florida Prenuptial Agreements Explained

A Prenuptial Agreement is a written and executed contract that is usually entered into by intended spouses prior to the marriage. This agreement, commonly referred to as a "Pre-Nup" or "Premarital Agreement" is meant to define the anticipated property and financial rights of each spouse in the event of a divorce, separation or death. Not every state licenses family law practitioners to prepare these agreements. In fact, 26 states, including Texas, require attorneys to obtain specific certification in order to prepare a Prenuptial Agreement. For this reason, many individuals seek out the assistance of a qualified South Florida attorney to draft these agreements. Often, a Floridian is found on the receiving end of a bland, form document drafted by a loved one’s Texas based attorney. Be careful: not only are the forms unsuitable, but Florida statutes concerning the validity of a prenup differ from other states.
In 2007, the Florida Legislature passed the Florida Uniform Premarital Agreement Act (the "Act"). The Act details the requirements necessary for a valid Pre-Nup in Florida. Florida Statute 61.201(3) sets out a short definition for a Prenuptial Agreement, identifying it as " ‘an agreement between spouses made in contemplation of marriage and to be effective upon marriage.’"
In Florida, it is important to understand that neither spouse may have the unilateral right to dispose of the other’s assets. This is a key difference between Florida and many of those other states that require certification. A prenuptial agreement entered into in Florida may not actually be a true contract . This is one of the reasons why Florida has not clung to the certification requirement that remains in 26 states. In Florida, there exists no fiduciary duty between the couple that provides the enforceability for the agreement. Instead, the acting force is the Act. To that point, Florida courts have refused to categorize prenups as strictly a contract, despite the original intent of the Act.
One of the next points to keep in mind if you are contemplating a agreement is that the agreement is not subject to the modification requirements necessary for other contracts under Florida law. The premarital agreement is not subject to the statute of frauds when characteristic tenants of a contract are present. See Fla. Stat. § 725.01; see generally Schwartz v. Battey. 93 So.2d 738 (Fla. 1957); Plotkin v. Chenitz, 518 So.2d 373 (Fla. 4th DCA 1988); Pool v. Shelter Pest Control, Inc., 36 So.3d 75 (Fla. 4th DCA 2010).
Florida courts have held that the remedies for wrongful disclosure and/or nondisclosure of assets are currently limited to constructive trust remedies. In general, a Florida court will enforce the terms of a prenup to ensure the said terms do not result in an "unreasonable and unfair advantage" to one party. When deciding whether an agreement is valid and enforceable, a Florida court will consider if the terms were unconscionable due to any of the following; insufficient or lack of disclosure, whether each party was represented by independent counsel, whether each party had adequate time (at least 7 days) to review the agreement before signature, and whether the nuptial was performed under duress or coercion. If any of these factors exist, the agreement is unlikely to be upheld by a Florida court.

Important Parts That Must Be Included in a Florida Prenuptial Agreement

There are four essential elements to a valid prenuptial agreement. They are:
Full disclosure of assets and liabilities. Essentially, if a party is not open about what they have and owes, there cannot be a meaningful agreement as the parties did not truly know what they signed up for.
Joint Legal Representation is Preferred or, Absent That, the Right to Review by Independent Counsel. The lack of this could potentially invalidate the agreement. This is especially true if the parties agree they don’t have to disclose their assets and debts or if there is a waiver of a specific right or remedy.
Voluntary Agreement. The lack of a voluntary agreement essentially means there is no agreement at all. And if just one party was not acting voluntarily, then there is no real agreement.
Properly Executed. There are certain requirements under Florida law that a prenuptial agreement must follow, including notarization and proper witnessing.

The Advantages of Using a Prenuptial Agreement Template

A Florida prenuptial agreement template is an excellent way to get organized and decide what you want out of a prenuptial agreement with your fiancé. Even if you and your fiancé have discussed the basics of what will be included in your prenuptial agreement, chances are you aren’t lawyers and don’t understand how the decisions you have in mind will affect future decisions such as division of assets after divorce and child support. And, there is also that pesky thing called state law that could come into play in ways that you don’t know about. Whether or not you and your fiancé have discussed the basic ideas of your prenuptial agreement, a prenup template gives you both a starting place. From that point, you can then consult with a lawyer – or lawyers who are on opposite sides to you and your fiancé – to get their advice on your ideas, and to receive counsel on anything specific to your particular situation that a prenuptial agreement template can’t address. By using a pre-written prenup form before you consult your lawyer, you will save your money because you’ll have basically done the majority of work ahead of time.
There is also the benefit of time to consider. When you attempt to draft a prenuptial agreement from scratch, it can take a long time to negotiate all the factors for you and your fiancé. However, when you use a prenuptial agreement template, you get a single document that has pretty much everything that is commonly included in a prenup. Then, after you and your fiancé make any changes you want to, you can then submit it to your lawyers for legal input. Now, instead of spending days or weeks sending drafts back and forth, your lawyers will already have a solid idea about what is wanted, and be able to spot areas where legalese is needed, or where certain elements violate state law and therefore won’t hold up in court.

Editing a Florida Prenuptial Agreement Template

When you and your fiancé have made the profoundly important decision to marry, it is also a good idea to sit down to discuss whether to consider a prenuptial agreement to outline how finances and property will be handled in the event of divorce. Since no one wants to imagine the day when the marriage may not work out, instead think of it as a way to safeguard your financial futures together. Prenuptial agreements can cover just about every topic and can be extremely flexible, but there are some restrictions and limitations. Your lawyer can provide you with a sample Florida prenuptial agreement template so that you can see the possibilities and think about what may matter to you as a couple. Once you have seen some basic ideas, customize your own prenuptial agreement template to be as specific as possible about how you want your property, earnings, debts, and other financial aspects to be managed during the marriage and under various circumstances that may occur in the future. Here are some considerations for how you can customize your prenuptial agreement: Much of the language in a prenuptial agreement deals with highly specific conditions about various combinations of financial, property, and even child-related issues that may occur over time. Work with your attorney to create a customized template that can then be modified into a valid prenuptial agreement that meets Florida’s statutory requirements.

Common Prenuptial Agreement Mistakes to Avoid

When entering into a Florida prenuptial agreement it is vital to do everything you can to avoid making potentially costly mistakes. Here are some of the most common mistakes that people make when trying to create a prenuptial agreement, and how you can avoid them:

1. Not disclosing all of your assets.

A prenuptial is designed to protect your assets in the event you and your spouse eventually split up. Of course, for it to be effective at doing this your spouse needs to know what those assets are. Hiding assets during any negotiation is a recipe for future disaster. It could also be a crime.

2. Failing to properly follow the laws of the state where you are creating the agreement.

The requirements for a valid prenuptial may vary depending on the state. If you violate any of these laws, your agreement will be invalid . You should make sure to research the requirements for your state and follow them to the letter.

3. Pressuring the other party into signing the agreement.

A prenuptial is supposed to be a tool for you both – not just you. If it feels like a weapon to you, it’s probably coming off that way to your partner as well. If they feel pressured, they may have valid grounds to contest the agreement later on. Make sure your spouse has the opportunity to hire their own attorney and have the agreement reviewed before they sign it.

4. Giving one party an unfair advantage.

Both parties should be treated fairly in a prenuptial agreement. The goal isn’t to get the upper hand on your spouse on your wedding day, but rather to handle the potential for divorce in a fair manner ahead of time. If you try to pull fast one with oppressive terms, you are probably better off without a premarital agreement at all.

Making a Florida Prenuptial Agreement Legal

In order to properly execute a prenuptial agreement in Florida each party must first engage in full financial disclosure, as this is required by Florida law and failure to provide a complete disclosure can make the agreement invalid. After disclosure, the parties will then proceed to draft and negotiate the terms of their prenuptial agreement, following which both parties can contest that prenuptial agreement in court. For a prenup to be enforceable itself, it will need to satisfy the requirements set forth by Florida law, which states that: each party can rely upon its own legal counsel and understand the waiver of marital rights, and the prenuptial agreement will become effective once it has been executed and placed into writing.
Although Florida does not require a specific number of witnesses or notarization for a prenuptial agreement to be legal, it is strongly recommended that this document be signed and executed in the presence of a witness for future protection. It is also suggested that a prenuptial agreement is executed well in advance of the wedding as couples often mistake a prenuptial agreement as a tool of distrust, therefore causing couples to procrastinate signing this important legal document. Couples should not forget that a prenuptial agreement never has to be filed unless and until it needs to be presented in court, at which point it will be attached as an exhibit to one of the supporting affidavits within the case.
After full disclosure, a prenuptial agreement is finalized once it is signed, executed, and placed in a safe place for future reference.

Where to Download Florida Prenuptial Agreement Templates

For those who want to draft their own prenuptial agreement without hiring an attorney, there are several reliable and legally sound templates available specifically tailored for Florida. For example, you can find templates at reputable legal document preparation websites that cater to Florida residents. These templates are usually quite detailed and cover aspects unique to Florida law regarding prenuptial agreements. However, it is highly recommended that you have any prenuptial agreement you prepare reviewed by an experienced family law attorney before signing it to ensure all of your bases are covered and that you are protected in the future .
Another option is to hire a company that is dedicated to delivering completed legal documents to clients in an efficient and trustworthy manner. There are several like this in the state of Florida. The key here is to find a reputable service that you can trust. We do not recommend any specific company, as we have no experience with any. Having said that, after contacting several of them, our clear-cut favorite is We The People.