No one goes into a marriage thinking it might end in divorce. For many couples, however, the reality of divorce statistics makes it difficult not to consider a worst-case scenario. Florida allows couples to enter into prenuptial agreements which can dispense with many issues in the event the marriage fails. Orlando Family Team helps clients understand what a prenuptial agreement can (and cannot) do, and how divorce looks without one.
Basics Of A Prenuptial In Florida
A prenuptial agreement is a legally binding contract between soon-to-be spouses that addresses how certain issues will be resolved if they later divorce. A prenup can be used to protect certain assets, to avoid liabilities, and to secure future earnings that might be put at risk during the divorce process. Prenuptials are an ideal choice where one or the other spouse has significant assets before entering the marriage. But anyone with assets or liabilities that they are concerned may be impacted by divorce can use them.
These are some of the specific things a prenuptial can do:
- State which property will be distributed to which spouse. You or the other spouse may have premarital assets that you don’t want tangled up in a messy divorce. The prenuptial can make it clear that one spouse or the other will be given the property if the marriage ends.
- State which liabilities will be distributed to which spouse. The flip side of the above is that spouses often want to make sure they will not be on the hook for debts or other obligations on the other spouse’s property. In other words, the prenuptial can make it clear that liabilities on certain assets will be one or the other spouse’s responsibility if they divorce.
- Protect a business. Similarly, if you go into a marriage with a business, you may want to shield that from the divorce process. The prenuptial can clarify that business ownership, assets, and liabilities will be distributed to one spouse free of the other’s interest or obligation.
- Divide or protect retirement assets. Your retirement assets could be considered marital property, subject to a division upon divorce. However, the prenuptial can declare what happens to pensions and other retirement accounts, including that each spouse will retain their separately earned benefits.
- Determine alimony. Another major financial issue in divorce, besides property, is alimony and spousal support. The prospective spouses may decide whether alimony will be paid upon divorce, and how much. Similarly, the agreement could provide for required spousal support in the event one spouse cheats on the other.
Prenuptial agreements don’t only deal with issues upon divorce, however. They can also determine the respective financial and domestic roles of the spouses during the marriage. As an example, the prenuptial may clarify the right of either spouse to manage or control certain assets or debts during the marriage. It may also dictate things like where the couple will reside and which sources of income may be used to pursue an education during marriage.
What The Prenuptial Agreement Cannot Do in a Divorce
The prenuptial is a great tool for deciding financial and property issues upon divorce, or certain roles of the spouses during the marriage. Child custody and child support, however, are specific issues excluded from prenuptials. Courts always have the power to decide custody matters. As for child support, parents cannot agree to waive child support or set a predetermined amount for support.
While a prenuptial can waive alimony, there are some cases in which a court will not enforce it. For example, if one of the spouses would be dependent upon state-provided social services without alimony, or if the agreement was entered into on the basis of fraud or duress.
Divorce Without A Prenuptial Agreement
A prenuptial agreement is no guarantee that if the spouses divorce it will be a simple matter. But without one, divorce can be expensive and time-consuming. These are how the above issues will be handled in the absence of a prenuptial:
Property And Debt Division
If the parties don’t resolve these issues before marriage, then during divorce, these matters will be decided using something called equitable distribution. This is the process by which Florida courts determine which spouse should be allocated marital assets and liabilities. The court evaluates a series of statutory factors to decide how to most equitably allocate property and debts – meaning, not necessarily a 50/50 split.
There are several steps involved, such as classifying property and debt (as marital or separate), determining their values, and deciding who should get what. Having a prenuptial saves spouses from this potentially costly and lengthy process.
Alimony And Spousal Support
Alimony and spousal support exist to ensure that after a marriage ends, a dependent spouse can get back on their feet financially. A prenuptial agreement can either waive this requirement or set an amount that is reasonable. Without one, courts have to examine numerous issues in deciding whether a spouse should receive spousal support, and in what amount. Issues of infidelity are often brought up during divorce because they can invalidate a spouse’s right to alimony. Deciding this issue ahead of time is preferable to the stress and emotional turmoil of a divorce.
Child Custody And Child Support
In a divorce, these have to be addressed regardless, since prenuptials cannot deprive a court of its power to decide them. Child custody will be established based on the child’s best interests. Meanwhile, child support will be determined according to Florida’s child support guidelines.
Contact An Orlando Prenuptial Attorney Today
Prenuptials can help a couple determine what is in their best financial interests if they ever divorce. But having a properly drafted prenuptial is essential, and that’s why having an experienced family law attorney is everything. Orlando Family Team has extensive knowledge of Florida’s domestic laws, and we can customize a legal approach that meets your needs. Reach out to us today to find out how divorce can be made easier with a prenuptial agreement.