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What Prenuptial Agreements Cannot Cover

Prenuptial agreements, or prenups, can cover most of the issues that any couple will face if they decide to split up. However, there are some legal niceties that are not, by law, permitted to be handled in a prenuptial agreement. If you place certain provisions in an agreement, you run the risk of having the entire agreement declared unenforceable.

Acceptable Provisions

In most states, including Florida, if something is not permitted to be included in a prenup, it is the exception, rather than the rule. Couples have quite a bit of leeway in deciding what their prenup will cover. Examples include:

  • Questions involving marital property (that is, property acquired after the marriage began, or other items held to be marital property by a judge);
  • Creation and disposition of estate planning tools; for example, re-working wills or trusts;
  • Debt management (such as protecting your spouse from being responsible for your debts);
  • Ensuring that your property is inherited by the right people, such as children from a previous marriage; and
  • Questions about the agreement itself, such as when it will become binding, and the choice of law that will apply to its provisions.

The Florida statute is unusual in one respect: many other states hold that a prenuptial agreement may not discuss the question of spousal support. Florida has no such prohibition, though there is a requirement that any waiver of spousal support must not put the waiving spouse below the line where they would be eligible for financial assistance.

Unacceptable Provisions

The most well-known mandate regarding prenuptial agreements is that no prenup may erase a child’s right to be supported. Florida courts have parlayed that directive into a statement holding that child support may generally not be discussed in any prenuptial agreement, and this will almost always be upheld.

It is also possible to have an entire prenuptial agreement nullified, though it is unlikely, if fraud or coercion can be proven. Florida law also states that if someone is unaware (or could not reasonably have been aware) of the extent of their spouse’s debt, it lends credence to a finding of unconscionability. Prenuptial agreements, like other contracts, may have what is referred to as a severability provision, meaning that if one part of the agreement is found to be void, the rest of the agreement may still be held as valid – but only if an actual severability provision is included. If there is none, and one part of the prenup is held to be unconscionable or unenforceable, the entire agreement will fail.

An Experienced Divorce Attorney Can Help

Divorce is an extremely difficult process for most people. A prenuptial agreement can be of great help – if it is crafted properly. If you are going to be married, and you want to safeguard your and your spouse’s rights and responsibilities, a prenup is one of the best ways to do so, but it is easy to miss minor points. The Fort Lauderdale divorce attorneys at the law firm of Steven A. Mason, P.A. have many years of experience helping couples to craft the prenuptial agreement that best suits them and their needs. Contact the Fort Lauderdale and Hollywood Law Offices of Steven A. Mason, P.A. for legal advice at 954-963-5900 or leave a message online.

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