Premarital Agreements & Post Marital

A sad fact of modern American life is that not all marriages last. In fact, about forty to fifty percent of marriages now end in divorce. It may not be pleasant to think about this possibility.

However, before a person does get married, he or she should consider taking certain precautions in case a divorce does happen. One such precaution is entering into a premarital agreement.

Premarital agreements are sometimes referred to as prenuptial agreements or antenuptial agreements. A premarital agreement is a legal contract that a couple enters into before getting married. In short, premarital agreements are made to establish the rights and obligations of the parties in the event the marriage was to suddenly end. This could include if the marriage were to end with one of the spouse’s deaths. However, more often, a premarital agreement is made to guard against the possibility of divorce.

A premarital agreement could, for example, stipulate that a spouse is only entitled to a predetermined amount of support and assets as part of a divorce settlement.

Premarital agreements can cover other scenarios as well. For example, a premarital agreement may include certain financial penalties for a spouse if that spouse was discovered to have been committing adultery during the marriage.

Couples make such agreements, so they are not bound by the Florida Statutes as to division of their assets and debts, or as to alimony and the like. Premarital Agreements do have certain limitations though. For example, agreements by the parties concerning the amount of child support that should be paid or time-sharing with a minor child can be changed by the court.

Be aware a premarital agreement may be challenged on two separate grounds. The first deals with fraud, duress, coercion, misrepresentation or overreaching. The second deals with "unfairness” or as it is sometimes called the "fair and reasonable test." However, if the challenging party cannot prove to the Court either of the above stated grounds, more likely than not a court will generally uphold an agreement between the party, so long as same was entered into freely and voluntarily by the parties and with adequate financial disclosure.

Due to these facts, there are many very good reasons for a person to enter into a premarital agreement with his or her spouse before marriage. This is especially the case for spouses that come into marriage with a large amount of assets compared to the other spouse. Another common reason is that the other spouse may have a high amount of debt. A person may not want to have to use his or her assets to pay off this debt in the event of a divorce.

For these reasons, obtaining such an agreement is a form of insurance to protect a person’s assets in the event the marriage does not go as planned. Without such an agreement, it is likely that a person may lose a lot more of their money and property after a divorce settlement.