In today’s society, second marriages or more are common. In the past, prenuptial agreements have been given a negative connotation. Most people felt insulted at the suggestion of a prenuptial. However, for couples who have children by prior marriage, prenuptial agreements are extremely helpful in sorting out assets between the new spouse and the children. Without proper estate planning before your marriage, the consequences upon death or divorce, can be devastatingly different than your intentions or wishes for your loved ones. In addition to a prenuptial agreement, a properly drafted Will and power of attorney is crucial to carrying out your wishes and ensuring your children are protected as well as your new spouse.
Prenuptial agreements, also known as premarital agreements or “prenups”, are documents created before a couple gets married to establish guidelines about financial matters such as asset and debt division in the event of a divorce or death. Divorce and death are two outcomes that no couple wants to contemplate when they are ready to start a new life together.
A prenup can address just about every financial issue that may come up, and this can give spouses greater assurance about these issues as they enter the marriage. There are some topics that are off limits, however.
Here is a more detailed breakdown of what can and cannot be included in a prenuptial agreement:
What CAN be Included in a Prenuptial Agreement?
Assets that Will Be Considered Marital Property
When a couple gets divorced, marital property is separated based on state laws, which in Florida means fair and equitable distribution. A premarital agreement can stipulate which assets and property will be part of the marital estate for the purposes of property distribution during divorce or separation.
How Marital Assets will be Divided in a Divorce
In addition to determining what assets and property are considered marital, a prenup can go further and provide details about how marital assets will be divided if the couple gets divorced. In the absence of such an agreement, the court decides marital property division if the couple is not able to negotiate the issue themselves.
Limit Liability for Debts that Belong to One Spouse
Another important financial issue is the debts that each spouse brings into a marriage. For example, one spouse might have significantly more assets, but they may have a lot more debt as well. Premarital agreements can specify which debts belong to each spouse, so the creditors cannot go after the spouse who did not accumulate the debt.
Financial Responsibilities during the Marriage
A prenuptial agreement can lay out the financial responsibilities that each spouse will have during the marriage, such as who will manage the household expenses, whether to keep joint or separate bank accounts, how joint accounts (if any) will be handled, contributions from each spouse’s income to these accounts, and how financial disputes will be resolved.
Protection of Family Businesses and Family Property
If one spouse is a partner in a family business or part owner of a piece of real estate with other relatives, a prenup can ensure that this business or property stays within the family.
Provision for Children from Prior Relationships
There are a lot of second marriages these days as well as marriages among older couples who are widows and widowers and have children. Those who are bringing children into a new marriage can use a prenup to ensure that their kids will receive their rightful inheritance.
In addition to providing for children from previous relationships, prenups can be used in conjunction with wills, trusts, and other documents to help accomplish a wide range of other estate planning goals.
Some couples choose to insert a sunset clause that voids the premarital agreement when the marriage lasts for a certain period of time. For example, the agreement (or certain provisions within it) could be deemed null and void if the couple stays married for at least 10 years.
What CANNOT be Included in a Prenuptial Agreement?
Decisions about Child Custody and Support
A prenup cannot include any provisions about child support and child custody/visitation. These are matters that are decided by the family court in keeping with the best interests of the child, and thus they cannot be addressed in a premarital agreement.
Provisions That are Illegal
Any provisions within a prenuptial agreement that violate the law are not legally enforceable, and in some cases, they might cause the entire agreement to be null and void.
Provisions that Appear to Encourage a Divorce
If there are any provisions that seem to offer a financial incentive to divorce or otherwise encourage divorce, the court will likely strike them out of the agreement.
Provisions about Personal Rather than Financial Matters
A premarital agreement cannot include provisions about personal matters that have nothing to do with the finances, such as where the couple will spend their holidays, how they will raise their children, or which household chores each spouse is responsible for.
Contact an Experienced Pensacola, FL Family Law Attorney
If you are considering a prenuptial agreement and you have further questions and/or want to begin drafting one, contact Whibbs, Stone, & Barnett for assistance. Call our office today at calling 1-888-219-4561 or message us online to schedule a consultation. We look forward to serving you!