Over the past several years there has been an increase in couples entering into prenuptial agreements before getting married. A recent study conducted by the American Academy of Matrimonial Lawyers (AAML) found that 62% of surveyed attorneys reported an increase in the number of prenups they were writing for marrying couples. The big question: why, now more than ever, are couples entering into such agreements? In this blog post, we'll explore some possible explanations.
What Is a Prenuptial Agreement?
First, it is important to have an understanding of what a prenuptial agreement is. A prenuptial agreement (sometimes referred to as an “antenuptial” agreement) is an “agreement made before marriage used to resolve issues of support and property division if the marriage ends in divorce or by the death of a spouse.”[1] It differs from a postnuptial agreement in that a postnuptial agreement is an agreement entered into during a marriage to define those each spouse’s property rights in the event of death or divorce.[2]
In both cases, a separation or divorce is not imminent, but rather one agreement is made prior to the parties’ “nuptials” and the other after. Like any contract, there must be consideration (or something bargained for and received by the two parties) in order for same to be binding. For a prenuptial agreement, however, the promise to get married, and the subsequent action of getting married, is valid consideration. This is not the case for postnuptial agreements since the marriage has already occurred prior to execution of the contract.
Florida’s Uniform Premarital Agreement Act
Premarital agreements in Florida are governed[3] by section 61.079, Florida Statutes, commonly referred to as the “Uniform Premarital Agreement Act” (UPAA). Under the UPAA, parties entering into a premarital agreement may contract regarding:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The establishment, modification, waiver, or elimination of spousal support;
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- The ownership rights in a disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter, including their personal rights and obligations, not in violation of either the public policy of the state of Florida or a law imposing a criminal penalty.
Essentially, parties entering into a prenuptial agreement can contract regarding most anything with limited exception: for example, parties cannot enter into a prenuptial agreement that governs any child-related issues (e.g., child visitation/timesharing or child support) or prohibits either party from seeking temporary attorneys’ fees and/or temporary spousal support in the event that the parties dissolve their marriage.
Why Are More Couples Seeking Prenuptial Agreements?
There are several explanations as to why prenuptial agreements are becoming more popular. One reason may be that people are getting married later in life. This means that they are more likely to have already established long-tenured careers, accumulated significant wealth, and ultimately acquired more assets than someone who gets married in their 20s or early 30s, for example. With more to potentially “lose” as a result of a dissolution their marriage, it makes sense that they would want to protect themselves and limit potential exposure with a prenuptial agreement.
Another reason may be that couples are simply more aware of prenuptial agreements than they were in the past. With the rise of the internet, individuals have greater access to information than ever before. This and through the media, for better or worse, has exposed the idea of the prenuptial agreement to more people, and those people are now researching prenuptial agreements and their effects on their own. Many people now do their own research to learn about prenuptial agreements. However, anyone seeking to draft a prenuptial agreement or seeking advice on whether to enter into a prenuptial agreement should consult a Florida marital and family law attorney for legal advice.
What Are the Benefits of a Prenuptial Agreement?
Dissolutions of marriage in the state of Florida are broadly governed by Chapter 61, Florida Statutes. As part of a dissolution of marriage action in Florida, the court will be required to equitably divide what will be known as your “marital estate”, which will include all marital assets acquired during the course of your marriage and will include all marital debt incurred during the course of your marriage.
Entering into a prenuptial agreement can provide peace of mind to spouses because the prenuptial agreement will already be in place to govern what happens with your property, assets, and liabilities in the event of a divorce. Each spouses’ separate, non-marital property also could be, and should be, addressed in a prenuptial agreement (as explained above), and this too will allow greater peace of mind when going through a divorce.
As often is the case, especially in divorces that do not include minor children, much of each parties’ time and money go toward fighting over these assets and liabilities in court.
A prenuptial agreement can also protect you from your spouse's debts. For example, if your spouse has accumulated a lot of debt (e.g., student loans or credit cards) you may be responsible for a portion of that debt following your marriage to that spouse if you do not have a prenuptial agreement in place that otherwise establishes what happens to that debt.
Finally, a prenuptial agreement gives spouses the opportunity to set financial goals for their marriage. You and your spouse can discuss your expectations regarding finances and have the chance to agree on matters such as how much you will save each month, what your retirement goals are, or what you would do with any extra money that either of you receive throughout the course of your marriage.
Do You Need a Prenuptial Agreement?
Whether or not you need a prenuptial agreement is something that you should discuss with your future spouse. If you have significant assets or debt, it may be worth considering a prenuptial agreement to protect yourself financially. However, if you trust that your spouse will be fair with you financially, a prenuptial agreement may not be necessary.
No matter what you decide, it's important to have an open and honest conversation about money with your future spouse. This will help ensure that you are on the same page regarding finances and can avoid any surprises down the road.
The Marital and Family Law Experts at Sasser, Cestero & Roy, P.A. Can Help You Determine What’s Best for Your Marriage
While prenuptial agreements are becoming more popular, they are not right for everyone. It is important to discuss your financial situation with your future spouse to decide if a prenup is right for you. Regardless of what decision you make, open and honest communication about money is key to a happy marriage.
Contacting an experienced Florida marital and family law attorney is the best first step to determine whether a prenuptial agreement may be necessary and, if so, what a valid and enforceable prenuptial agreement will eventually look like. The attorneys at Sasser, Cestero & Roy, P.A. are prepared to help you make the decision that is right for you and your family.
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