Frequently Asked Questions: Prenuptial Agreements

Prenuptial agreements or ‘prenups’ have always had a bit of a mixed reputation in the U.S., with some deeming them “unromantic” or arguing that wanting one constitutes a lack of trust. Others argue that a prenup is intended to protect the rights and assets of both spouses in a marriage, and having one means that a couple can rest easy in terms of estate planning and any potential divorce. Regardless of which side one comes down upon, it is true that there are several persistent myths about the legalities of this kind of document.

Are They Enforceable?

A prenup is a contract under Florida law, executed between two people about to marry. In order to ensure that a prenup is enforceable, the two parties to the agreement must make sure that none of the provisions is unenforceable – and/or, to be safer, include what is known as a severability clause in the document. A severability clause is a note declaring that if one provision of a contract is invalid, the other provisions remain valid – in short, that each provision is independent of the others.

In general, a prenup will be considered enforceable as long as it is in writing and signed by both parties, and if its contents are equitable and do not shock the conscience of the public – in other words, if nothing is against public policy. Determining if something is against public policy can be difficult in some cases, as its definition is vague – but in a prenup, the most common example of a choice being against public policy is when the division of assets is so one-sided as to leave one spouse dependent on public assistance. This is not in the public’s best interest, so it is not usually permitted to stand.

Are They Changeable?

Many couples are scared away from having a prenuptial agreement because they believe it cannot be changed after the fact. In reality, it is possible to alter a prenup, but only if both parties consent to do so in writing. There are multiple ways to actually alter the document, but that consent must be present before doing so. Failure to obtain it will not only put one spouse at risk for potential financial penalties – it may, in extreme cases, lead to criminal charges for fraud.

Life changes without warning, and a prenup must be just as adaptable as the people who have signed it. If both spouses do consent to modifying a prenuptial agreement, they can do so in one of three ways: (1) they may execute a modification, which is a document added to the original prenup; (2) they may execute a postnuptial agreement, which invalidates the original and sets out new parameters; or (3) they may simply revoke the entire document and not create a new one. Obviously, different couples choose differently, but the ability to modify the document is often a load off one’s mind.

Contact A Hollywood, FL Prenuptial Agreement Attorney

A prenup can help two spouses rest easier, but only if the document is properly executed and understood. A Hollywood, FL family attorney can help – contact The Law Offices Of Steven A. Mason, P.A. today to schedule a consultation.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.079.html