Before embarking on married life, many people have worries about what will happen if marriage does not work out. Prenuptial Agreements (also called Prenups or Antenuptial Agreements) are commonly used before marriage to preempt issues that may arise from a dissolution of marriage. If you are getting married, you may be wondering if a prenup is right for you. Couples considering a prenup may wonder:
- How often are prenups thrown out?
- Does cheating nullify a prenup?
- What does a prenup protect?
This guide will touch on the basics of what a prenup can do for you and your partner and how a prenup can impact the dissolution process. We will discuss what prenups are, their protective shield, the rare instances when they might be disregarded, the implications of infidelity, the typical lifespan of a prenup, and what the future holds post-divorce with a prenup in place.
Table of Contents
What Is a Prenup?
A prenuptial agreement is a legal document between a soon-to-be-married couple that addresses what will happen to assets, liabilities, and other topics if a couple decides to get divorced or separated. Although specifically tailored to address common issues that arise in a divorce, a prenuptial agreement is a contract and can cover a wide variety of topics.
The most commonly employed purpose of a prenup is to protect a couple’s premarital assets from becoming a part of a divorce settlement.
Some of the most common reasons a couple will create a prenup are:
- To ensure that premarital assets (assets and liabilities owned before the marriage) remain one spouse’s sole property during the marriage.
- To protect premarital businesses
- To determine alimony
- To expedite and streamline the dissolution process if it becomes necessary in the future
Generally speaking, in order to be valid, a prenup must be in writing, created a sufficient amount of time before the marriage, and the couple entering into the agreement must be legally married. As there are multiple pitfalls and potential issues that can arise when creating any contract, a prenuptial agreement should be created by an attorney with expertise in the legal proceedings of marriage and divorce to ensure the best protection for you.
What Does a Prenup Protect?
A prenup can provide protection for a wide variety of topics. In Florida, there are a few topics that cannot be addressed in a prenup; barring those topics, a couple can make agreements regarding anything (as long as it isn’t illegal).
Here are some of the items that can be discussed in a prenuptial agreement:
- Investments, bonds, and stocks
- Residences and other real estate properties, such as investment properties, beach condominiums, and cabins/lake homes
- Business Assets
- Alimony (amount, duration, or a waiver of alimony)
- Future attorney’s fees
Other types of assets could include heirlooms passed down through the family, vehicles/recreational vehicles, or other personal property.
Other items that cannot be included in a prenup:
- Provisions that violate state law, federal law, or public policies
- Waivers of temporary alimony and attorney’s fees (this is alimony/fees that are awarded during the litigation of a dissolution)
Personal vs. Marital Assets
When discussing the question, “What happens if you sign a prenup and get divorced?” it is critical to understand that most prenups focus on making a clear distinction between premarital and marital assets.
What each individual has in the form of premarital assets (assets owned or obtained before the marriage) is included in the prenup. Most prenuptial agreements also extend to assets, wealth, and liabilities accumulated during the marriage and set forth guidelines for determining whether said assets, wealth, and liabilities will be considered premarital or marital. It is very common for a prenup to set forth specific requirements for an asset to become marital to provide couples with the broadest spectrum of protection.
Alimony, Debt, and Legacy
Assets are the primary component of prenups that most people think about. But prenups transcend asset protection and have far-reaching capabilities for individuals trying to protect themselves if the marriage does not work out.
Debt Protection: Debt can be a heavy weight to carry and interfere with financial prosperity. Just as most prenups make provisions for the classification (premarital or marital) of assets, most make the same provisions for debts.
Alimony: Another of the most common provisions in a prenuptial agreement is for alimony payments. Depending on the couples’ specific desires, a prenup can include a complete waiver of alimony, or it can determine specific rates and timeframes for alimony payments. It can also set forth criteria for when a spouse is or is not eligible to receive alimony.
Testate/Intestate Rights: A frequently included provision in prenups is a waiver of the automatic rights a spouse has under Florida Law in the event that a spouse dies. In short, many pre nuptials include waivers of these rights and establish that only the wishes expressed in a spouse’s last will and testament will be in effect in the event of that spouse’s death.
What to Expect If You Get Divorced But Have a Prenup
Facing divorce is never easy. However, having the information you need about asset division and other key details equips you with insights and helps to set expectations of what typically occurs when you have a prenup.
How Assets Will Be Divided
Asset division will depend on the specifics of the prenup. As mentioned above, in most circumstances, prenups will include separating premarital and marital assets. Assets (and liabilities) designated as premarital in the prenup are awarded to each individual post-divorce.
Typically, assets and liabilities designated as marital are divided in accordance with Florida law. Florida courts operate under the law of “equitable distribution.” Essentially, this means that assets and liabilities designated as “marital” are designated equitably between the spouses. It is common for spouses to enter into a second agreement (usually referred to as a marital settlement agreement) to determine the division of marital assets and liabilities.
How Quickly Are Assets Divided?
The timeline will depend on the prenup quality and the divorce’s complexity. When all prenuptial agreement provisions are well-written, reasonable, and legally valid, the timeline will be shorter. If the prenuptial agreement is poorly written or has unreasonable provisions, one or more of the provisions could be contested and would take more time.
Additionally, the complexity of the divorce and the marital assets will be factors in the timeline, including whether children are involved, what types of assets are involved, and how long it takes to gather documentation of each spouse’s assets.
Division can go very quickly or be delayed if there are disagreements over how marital assets should be divided.
The standard range for a divorce to be completed is about 4-6 months. However, very complex or contentious cases can last longer. If the spouses have a well-written prenuptial agreement and are able to amicably settle matters not covered by the prenup, the dissolution process can be as short as 6 weeks.
Does Cheating Nullify a Prenup?
Florida is a “no-fault” divorce state. The laws do not consider fault (cheating or otherwise) in the division of assets. Behaviors, including cheating, would not nullify a prenup unless there is an explicit clause in the prenup stating that cheating would nullify the agreement.
However, the state allows a “lifestyle” clause to be included in a prenuptial agreement that penalizes those who cheat, which means couples can agree to a provision that if there is infidelity in a marriage, the spouse who cheats has to pay the other spouse a specified amount of money.
These lifestyle clauses are not necessarily common, as they are difficult subjects to approach when people are about to marry.
The bottom line: cheating does not nullify a prenup, but spouses can be compensated if the other one is unfaithful and there is a lifestyle clause in the agreement.
How Often Are Prenups Thrown Out?
Prenuptial agreements written well and with reasonable provisions are rarely overturned or thrown out. It is more likely that a poorly written provision or unreasonable provision of the agreement is overturned than the entire document.
In order for a prenup or provisions of a prenup to be thrown out in Florida, the person contesting the prenup has to prove that there was some form of fraud, duress, or coercion when the document was created or that the agreement is so one-sided and unfair as to make the agreement intolerable. Some of the most common grounds for contesting a prenup arise when a spouse fails to disclose financial information or when the time between the preparation and signing of the agreement and the wedding is so short as to make it impossible to fully understand the conditions and rights being waived in the agreement.
What Makes a Prenup Valid or Invalid?
Certain non-negotiable pillars uphold a prenup’s validity. These pillars establish its validity and its foundation.
Here are the components that make a prenup valid:
- The agreement must be in writing.
- The agreement must be notarized.
- The agreement must be executed before the marriage.
- Full disclosure must be provided by both parties at the time of execution.
- The agreement must be fair for both parties.
- The parties must be legally married for the agreement to go into effect.
With these pillars, the prenuptial agreement is considered legally sound, giving both parties the confidence that it will be valid if the marriage ends in divorce.
For a prenup to be considered invalid, there certain types of evidence need to be present, including:
- The agreement was signed by a party that was under duress or coercion.
- One or both parties did not provide full financial disclosure when the agreement was executed.
Due to the significance of a prenuptial agreement in the case of divorce, it is highly recommended to work with an attorney with expertise in executing these legal documents.
How Long Do Prenups Last?
The terms of a prenup do not typically expire and are enforceable contracts, whether you have been married for seven months, seven years, or more. They are activated in the event of divorce or death, which occurs if you stay in one state or move out of state.
Even if you have been married a long time, the prenup would be valid as long as it meets the validity requirements – unless both parties consent to an amendment or revocation. It is not uncommon for circumstances to change over time, and it may be in a spouse’s interest to get a modification created with an attorney and file it with the court.
Sunset Clauses: Prenup’s Timed Existence
While prenups do not typically expire, they can have what is referred to as a “sunset clause,” which is a clause in the agreement that does set a time for it to end. For example, a couple may opt to place a sunset clause after 20 years of marriage.
If the original agreement has a sunset clause, then the court would recognize that date, which is not necessarily common but is possible. It is often advisable to have a prenup modified or amended rather than to allow the sunset clause to take effect. Even after many years of marriage, relying on state divorce laws may not be the best decision.
Each spouse should be very familiar with the provisions of their prenup, including whether or not there is a sunset clause, to ensure their interests remain legally protected.
Get Expert Guidance on Your Prenup
Prenups provide security and peace of mind, acting as a powerful legal tool for individuals about to get married and couples who are getting divorced. It is of utmost importance to have expert counsel when dealing with prenups to ensure the stability of your future.
You should prioritize understanding, preparation, and foresight, which is central to securing your interests for years to come. You are in the best position for an optimum outcome when you have the proper guidance with developing or amending prenups and during divorce proceedings.
Golden Key Law Group has experience in prenups, divorce, and family law and can help. Contact us today.