If you are part of the growing number of couples in Florida who have decided to take your future into your own hands by creating a prenuptial agreement (thereby limiting the ability of an unknown judge to make unpredictable decisions regarding your property years from now), the next step is to decide what should be included in your prenuptial agreement. Florida state law does limit what types of clauses in a prenuptial agreement will be enforced by the courts, and thus you should make sure to include all such applicable clauses while not wasting time negotiating those clauses that should not be included.

The Right to Own Property Acquired During the Marriage

Absent a prenuptial agreement, most property earned or acquired during the marriage will be considered marital property belonging to both parties, and a judge overseeing a divorce will take steps to ensure that such property is equitably distributed to the spouses regardless of who earned or acquired it. With a prenuptial agreement, you can set out who will own what property that is earned or acquired during the marriage.

The Right to Enter into Transactions Regarding Existing Property

In addition to questions of ownership of party, you can also set out what rights and obligations each spouse regarding transactions to buy, sell, lease, mortgage, or dispose of property. For example, you may want an agreement that both spouses must agree before certain types of property can be sold or instead giving that right to one spouse in particular.

The Disposition of Property Upon Divorce or Death

Related to the above categories, a prime reason that couples enter into prenuptial agreements is to clearly specify what spouse should receive what property following a divorce or upon the death of one the spouses so that this does not have to be negotiated later when tempers are flaring or left in the hands of a judge applying state law principles in an expensive trial.

The Right to Spousal Support (If Any) Upon Divorce

In a Florida divorce action, it is not uncommon for one spouse to be awarded spousal support (also called “alimony”) to be paid by the other spouse for years, and sometimes indefinitely, following the divorce. In some cases, the total cost of spousal support over the years can be larger than the assets held by the spouses at a divorce. With a prenuptial agreement, both spouses can get a clear picture of what their rights and obligations to spousal support throughout the marriage (which can include no right to spousal support at all).

Issues Concerning Life Insurance and Wills

A prenuptial agreement can require one or both spouses to create a will enforcing the provisions of the prenuptial agreement or to purchase life insurance naming the other as a beneficiary.

Any Other Issue Not Violating Public Policy

Florida law allows wide latitude for other issues to be included in a prenuptial agreement so long as they do not violate public policy or criminal laws. An example of a clause that would violate public policy is one requiring the parties to divorce after a certain period of time.

What Cannot Be Included

Specific items that should not be included in a prenuptial agreement provisions relating to child custody and child support. Although potential spouses are free to negotiate amongst themselves regarding property rights following a divorce, Florida approaches decisions regarding child custody and child support based on the best interests of the child as opposed to the parent’s wishes.

Legal Counsel in Your Florida Prenuptial Agreement

If you have any questions regarding the negotiation, creation, finalization, or enforceability of a prenuptial agreement in Florida, The Law Offices of Ira M. Marcus, P.A. in Miami can help. Contact our office today to set up a consultation with a trusted and caring Florida family law attorney.

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