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What Can’t Be In My Prenup?

Prenup6

Because they are extremely adaptable and common in this day and age, some couples wind up thinking that their prenuptial agreement can be a hodgepodge of anything, and it will pass legal muster. The fact is that there are several issues that Florida law does not allow a prenup to resolve – such questions can only be dealt with in court or as they come up in daily life. Knowing what these are can save you the time and trouble of amending or even rewriting your prenup.

Anything Against Public Policy

There are some stipulations that can generally be attributed to common sense – namely, that any provision which runs against the public policy of the state of Florida may not be included in a prenup. Generally, any kind of illegality cannot be part of a valid contract (which a prenup is) without voiding the contract. Terms regarding how to split up unethical or illegal gains, or demanding one spouse or the other commit a crime or withhold information about a crime committed is unacceptable and will essentially invalidate your prenup.

Not only criminal conduct is against public policy, however. Any provision that is unconscionable – in other words, something that shocks the conscience of the average person – will be struck down as well, especially if one spouse lacked the information to know what they were signing. The rationale is that divorce does not eliminate the requirement to ensure all involved (both spouses and any children) are provided for according to an acceptable standard of living. An unconscionable provision in a prenup would be one that, for example, states that the spouse who makes significantly more money would under no circumstances have to pay alimony to a spouse that doesn’t work, potentially leaving that spouse without any income at all.

Anything Regarding Child Custody Or Support

The only broad, sweeping category which is essentially forbidden to discuss in a prenup is that surrounding child custody and/or support. There are multiple reasons for this, but the major issue with trying to negotiate child support is that the duty of support for a child is owed to that child, not to the parent, and it is not possible to negotiate away the rights of someone who is not a party to the agreement, even a minor.

Florida generally makes custody and support decisions based almost solely on the best interests of the child, which means that any other right asserted will be subordinate. A prenuptial agreement governs only the interests of the spouses – it does not (or should not) touch on the interests of any children that the parties have or will have during the marriage.  Given that prenups deal only with the spouses, only the spouses’ rights and assets can be disposed of in the document itself.

Contact An Experienced Attorney

Prenups are becoming more common in this day and age, but if you and your intended spouse decide to have one, understanding its capabilities is important. Enlisting an attorney can be a big help. The Hollywood family lawyers at the Law Offices of Steven A. Mason, P.A. are ready and willing to sit down with you to evaluate your options. 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.

Resource:

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

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