Deciding to get married is an exciting decision and a big commitment. During your marriage preparation it may be tough to get past the butterflies and excitement to consider planning for your future financially, but it may be something that could be necessary for you and in your best interest. Proposing a prenuptial agreement to your future spouse may not be easy, but the experienced family attorneys at The Law Office of Knellinger & Associates in Gainesville, Florida can assist you with preparing this agreement in the most efficient and beneficial way possible.
You may want to consider proposing a prenuptial agreement if you:
Own or co-own a business or practice
May receive a large inheritance
Expect to see a large increase in income over time
Plan to support your spouse financially through post-secondary education
Have or will have a license or degree in a lucrative profession
Have valuable real estate
Have other loved ones who need a secure financial future such as a child from a previous relationship
A prenuptial agreement is a contract between two people who intend to marry typically covering a variety of financial related topics and setting forth the right if any, that each party has to the other’s property throughout the marriage, in the event of a divorce and even upon death. These topics may include:
Personal rights and obligations
Waive any rights provided to an individual by law
Identify separate property being brought into the marriage
Determine which funds from certain sources belong to one or both parties
State how both spouses will spend money during marriage
Religious upbringing for children
The Agreement must be fair, in writing, signed by both parties, and properly witnessed
The Agreement must be executed voluntarily
There must be full disclosure of each party’s financial picture as of the time of execution of the Agreement
It is also advised that each party obtain his or her own legal representation when drafting a prenuptial agreement to insure that each party is fully and fairly advised as to the consequences of entering the Agreement. Such a prenuptial agreement be more likely be upheld in the event of a divorce than if there were not separate lawyers involved. Our attorneys have years of experience in making sure that you take the appropriate steps in developing a solid and enforceable contract which is in your best interest.
If you are already married and did not create a prenuptial agreement, you are still eligible to develop a postnuptial agreement between you and your spouse. Our attorneys can assist with postnuptial agreements as well.
Currently, prenuptial agreements in the United States should not regulate most issues involving the current or future children of the marriage because those matters must be decided on based on the children’s best interests at the time of divorce. If the Agreement features terms that outline child custody, visitation, or child support, these terms may not be enforceable, and the court could potentially overturn the entire Agreement in the event of a divorce if its terms are co-dependent on invalid terms.
A sunset clause is a provision that specifies that after a certain amount of time, the prenuptial agreement will expire. If you only want the prenuptial agreement to stay in effect for say, the first ten years of your marriage, then adding a sunset clause may be advised.
The addition of an escalator clause can increase the amount of assets or support given to one spouse based on the length of the marriage or on a significant increase in one spouse’s assets or income.
If a prenuptial agreement was not created, the state of Florida currently employs equitable distribution laws regarding property division after the termination of a marriage.
If a provision modifies or eliminates spousal support and that modification causes one party to the Agreement to be eligible for support under a program of public assistance at the time of divorce, a court may require the other party to provide support to the extent necessary to avoid that eligibility.
If you and your spouse have a prenuptial agreement, and you feel as though your contract should not be upheld in court, consider the following reasons for which a prenuptial agreement may be overturned:
The Agreement was not signed voluntarily
The Agreement is unconscionable
There was not full disclosure of assets at the time of the Agreement’s creation
The Agreement includes invalid provisions regarding the children of the marriage
One party lacked capacity when signing the Agreement (Ill, medicated, intoxicated, etc.)
Although it is not a requirement, it is highly advised that a prenuptial agreement be created and signed well in advance of the wedding. A court is more likely to frown upon, and potentially overturn, an agreement that was signed a few days before a wedding as opposed to a few months. Depending upon numerous factors 30 days or more prior to the wedding is generally recommended.
People sometimes forget to consider how a prenuptial agreement might affect an existing will or trust. We may recommend that you either create an estate plan, or to modify your current one, when you create a prenuptial agreement.
If you or your spouse have separate children from an earlier relationship, and you pass away, the relative rights of your children and your surviving spouse should be resolved in the Agreement. The inheritance or disinheritance of a surviving spouse should be addressed in your agreement.
The Law Office of Knellinger & Associates provides legal advice and representation for individuals, entrepreneurs, and business owners in Gainesville, Florida, and communities throughout north central Florida, including cities such as Ocala, Starke, Palatka, Lake City, Middleburg, Trenton, Bronson, Lake Butler, Cross City, Williston, Chiefland, Alachua, Jasper, Live Oak, and Jacksonville, Florida.
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