No couple reasonably expects to file for divorce. Sometimes, however, a divorce is absolutely necessary in order to maintain the happiness and wellbeing of each party. When couples files for divorce, a prenuptial agreement can serve to protect each party’s marital and non-marital assets.
For assistance with prenuptial agreements and determining if such form of contract is the appropriate option for your family, contact The Law Office of Silverman, Mack & Associates to speak with an experienced Gainesville divorce lawyer.
What Is A Prenuptial Agreement?
A prenuptial agreement can prevent a divorce from becoming a messy and difficult process. This important document identifies and outlines the assets and property of each individual in a marriage, and it establishes predetermining guidelines as to how these assets should and/or will be distributed, should a divorce becomes necessary. In order to draft a prenuptial agreement, it’s best to contact a family law attorney to assist you and your spouse with understanding the available options and clauses; what prenuptial agreements entail, and how to draft the perfect binding document for your family’s unique economic and emotional situation. Prenuptial agreements are often arranged during a series of private meetings and negotiations with each spouse, an attorney, and/or a mediator.
How Are Assets Divided In A Prenuptial Agreement?
Florida law dictates what happens to each spouse’s assets and debts upon a dissolution of marriage. Oftentimes, the distribution of assets and debts that were acquired during the marriage will be divided equally. However, this may not always be the case due to a number of factors. In order to avoid litigation during a divorce, a prenuptial agreement is highly recommended. A couple can enter a prenuptial agreement that dictates how any and all acquired assets and debts will be distributed in the event of a divorce. A valid and binding prenuptial agreement can limit or eliminate the need for spousal support or can provide for a certain amount of support following the dissolution of marriage. The terms and conditions of this document must be adhered to and protected under Florida law.
Common Types Of Prenuptial Clauses
There are many different types of prenuptial agreements. Depending on the couple’s desires and needs, specific rules may be placed in prenuptial agreements regarding matters, such as debt and assets, as well as less technical stipulations, including how the household will be run and how everyday conflicts will be handled. Two of the most common clauses associated with prenuptial agreements are the sunset clause and the escalator clause.
Escalator clauses allow for the possibility of an increase in the amount of alimony support and/or assets that a spouse receives in the event of a divorce. In most cases, this is a result of an increase in one spouse’s income or property assets. Escalator clauses allow for appropriate increases — and sometimes decreases — in the distribution of assets.
A sunset clause is a stipulation which places a time limit and/or deadline on the terms and conditions of a prenuptial agreement. In other words, a pre-established date and/or year determines when the document will expire, and no longer serve as a legally binding document.
What Issues Are Addressed In A Prenuptial Agreement?
Although prenuptial agreements can simplify the divorce process, there are certain steps that should be taken in order to make the prenuptial agreement valid and binding. There are many issues that these agreements should address in order to avoid future complications.
One important issue is the need for financial disclosure. Inadequate financial disclosure before the agreement is signed may make it harder to enforce the agreement at the appropriate time. A Gainesville attorney can ensure that the appropriate amount of disclosure takes place and is properly documented in order to help preserve the enforceability of the agreement at a later date.
Additionally, prenuptial agreements will be strictly construed and interpreted. The agreement will not provide either party with additional protection beyond what is included in the agreement. As such, it is important to have a knowledgeable family law attorney prepare this contract. There are also some issues that can’t be waived in a prenuptial agreement, such as the issue of temporary support.
Under Which Circumstances Can A Prenuptial Agreement Become Void?
While prenuptial agreements are legally binding documents, there a number of reasons that may cause a prenup to become null and void. The following are the most common factors for invalidating prenuptial agreements.
- Inadequate Mental Capacity. When drafting a prenup, both spouses are expected to be in their best mental state. Brainwashing, illness, and the presence of alcohol and other drugs can impair one’s memory. If an investigation proves that one or both spouses were not operating in his or her full mental capacity at the time of the arrangement, a family court may consider the agreement to be invalid.
- Forced Measures. Both spouses should voluntarily agree to a prenuptial agreement. Emotional, financial and/or physical force is considered illegal.
- Fraud. Prenuptial agreements are expected to identify all assets and debts of each spouse. If any information is purposely excluded from the document, or if there is an inaccurate representation of spouses’ assets, the prenuptial agreement is viewed as fraudulent, and can therefore not be honored in a court of law.
- Lack Of Counsel. Every citizen has the right to adequate legal representation. If a spouse did not receive proper legal counsel when agreeing to the document, the prenup may be voided in a court of law.
- Improper Filing. Like all legal documents, prenuptial agreements must be filed appropriately, in a timely manner, and with the right offices/departments. Failure to adhere to these deadlines and structures may void the agreement.