You’ve just gotten engaged or you are thinking seriously about marriage and getting married. A prenuptial agreement in Florida may be the last thing on your mind right now but, if it is, you need to know what documents you’ll need to give a Florida lawyer for a Florida prenuptial agreement (also known as a “prenup”).

Maybe you or your family has some fears- if the unfortunate event of divorce occurs, will your children from previous partners be protected? Will you family business be decimated? A Florida family law and divorce attorney can help you create the best prenuptial agreement to fit your needs so you can have peace of mind about your upcoming marriage.

Technically, anyone can write a prenup, but the Florida courts won’t recognize and enforce just any prenuptial agreement. It has to meet certain criteria. The last thing you want after the difficult event of divorce is to then find out in that the Florida pre-nup drafted to protect your assets and family is unenforceable. 

In this article, experienced Naples, Florida divorce and family law attorney Russell Knight will tell you the requirements to create an enforceable prenuptial agreement in Florida.

Prenuptial Agreements in Florida State Law

Prenuptial agreements in Florida are governed by state law. Chapter 61 of Florida Statutes governs divorce proceedings, including how prenuptial agreements are enforced after divorce.    

Florida Statute Chapter 61.079(7)(a) specifically provides three conditions under which a prenuptial agreement will not be enforceable:

  1. The party did not execute the agreement voluntarily;
  2. The agreement was the product of fraud, duress, coercion, or overreaching; or
  3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
    • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
    • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
    • Did not have, or reasonably could not have had, and adequate knowledge of the property or financial obligations of the other party.

Below, we will discuss each of these points in greater detail and how to ensure your Florida prenup will protect your property, assets, and family.

First Step: Identify Your Goals to Strengthen your Florida Prenuptial Agreement

  1. What are your goals for your Florida prenuptial agreement?

The first step to creating a Florida prenuptial agreement is determining your goals. Florida prenuptial agreements are drafted for many reasons- in contemplation of death, to protect interests in a family business in the unfortunate event of divorce, to govern behavior during the marriage, or to ensure children from previous marriages are adequately provided for.

We encourage you to discuss any proposed goals of the prenuptial agreement with your future spouse first and ensure that you are in full agreement. This ensures that your future spouse enters the agreement willingly and that they won’t be unpleasantly surprised by the terms. In documenting the reasons why both parties are entering into the agreement, it gives the judge insight and it gives you additional credibility if this agreement is ever challenged in court.

Timeline: The Earlier the Better

  1. When are you planning to get married?

The closer to the wedding date the prenuptial agreement is signed, the more likely a judge will say that it was signed under “duress.” Conversely, the more time between the execution of the agreement and marriage, the more likely it will be upheld by court. We recommend executing the prenuptial agreement at least one month before the wedding and at bare minimum, for two weeks. 

Inheritance and Heirs

  1. Provide the full names of any children from either party, their dates of birth, and whether they are dependent on a party.
  2. Provide any wills you have along with names of prospective heirs and beneficiaries and their relationship to you.
  3. Provide any potential future inheritances you may receive from family members.

To satisfy condition three of F.S. 61.079(7)(a) listed above and ensure “full disclosure of property and financial obligations”, you will need to provide all information concerning any assets, present and future, that you may receive as a beneficiary as well as any and all information about your designated beneficiaries and heirs.

What to do about Homestead Property

  1. Would you like to wave spousal rights on your homestead property upon divorce or death? If so, provide the address of your homestead property and an estimated value.

“Homestead property” simply means your main place of residence. This typically is the home that you and your future spouse will reside in together after marriage. In most divorce settlements the homestead property is split between both parties. However, in some cases, you may wish to retain the homestead property. For instance, if you purchased the homestead property with pre-marital funds, you may wish to retain sole residence of it in the case of divorce.

The Most Important Step: Full Financial Disclosure

  1. Fill out the full financial affidavit form attached to this correspondence. The other documents listed in question 8 will help you complete the form. You may fill out the form digitally at the following link: https://www.flcourts.org/content/download/403038/3456562/902c.pdf
  2. List all of your assets. 
    • Provide the most recent copy of all bank account statements held solely or jointly in your name.
    • Provide the most recent copy of any investment account statements.
    • Provide documentation regarding any business owned in whole or in part, including an estimated value if available and the basis for valuation.   
    • Provide a copy of deeds to all real property.
    • Provide the property appraiser’s appraisal and tax bills for both real and personal property.
    • Provide a copy of all motor vehicle, airplane, boat, or vessel bills of sale, titles, or registrations.
    • Provide a detailed and complete list of tangible personal property with particular emphasis on jewelry, antiques, collectables, weapons, and significant furnishings.
    • Provide a list of all pets.
  1. List all of your liabilities and debts.
    • Provide a copy of any notes and mortgages on real property and status of payments.
    • Provide a copy of any notes and lien documents on tangible personal property.
    • Provide a copy of any unsecured notes and loans.
    • Provide a copy of any car loans.
    • Provide a copy of any credit card statements.
    • Provide a copy of any medical bills.
    • Provide a copy of any tax bills, including income tax and property tax.
  1. Provide all your income information.
    • Provide one year of personal and business tax returns.
    • Provide your most recent pay stubs.
    • Provide the most recent retirement plan annual statements.
    • Provide any recent financial statement provided to a bank or lending institution for any reason.

You may be wondering, who will have access to all these sensitive and personal documents? Please know that any sensitive and personal information will not be included in or attached to the prenuptial agreement. They will only be shown to your intended spouse, their legal counsel, tax advisor, and/or investment advisor under the signature of a notary public. Once they have reviewed all the documents listed above, you will have definitely “provided a fair and reasonable disclosure of the property or financial obligations” and will make your prenuptial agreement easier to enforce in the future.

Attorney for your Intended Spouse

  1. Is your intended spouse planning to hire their own attorney to represent them in this matter?

As legal counsel, we are only allowed to represent one party, even under amicable circumstances.  We strongly recommend for your intended spouse to hire their own attorney to represent them in the execution of the prenuptial agreement. This is a crucial step that will make this prenuptial agreement much more enforceable in the future. Any future judge will see that your intended spouse had legal representation and therefore, the agreement was not “overreaching” or made under “coercion.” If your intended spouse cannot afford an attorney, we recommend you providing funds to your spouse for this purpose but it is important to let them contact an attorney on their own.

Reimbursing Attorneys’ Fees

  1. Would you like to add a stipulation in your prenuptial agreement that should the agreement ever be challenged in court, the prevailing (winning) party can reimburse their divorce attorneys’ fees from the other party?

This stipulation can protect you from accruing large amounts of attorneys’ fees in the future should the other party challenge the prenuptial agreement in court and lose. It may also deter the other party from going to court at all.

Alimony

  1. Would you like to waive all alimony/maintenance in your prenuptial agreement?

Upon divorce, a party is typically awarded alimony if they cannot maintain their lifestyle without financial support from the other party. However, in a prenuptial agreement, you may add a stipulation that in the case of divorce, neither party would be able to seek maintenance or alimony from the other party. This only applies to spousal alimony, not to child support, which you cannot waive in a prenuptial agreement.

If you’d like to learn more about how to whether your current prenuptial agreement will hold up in a Florida court or if you’d like help drafting a prenuptial agreement, contact Naples, Florida family law attorney Russell Knight to learn about all your options.