How Prenuptial Agreements Can Impact a Divorce

If you have a prenuptial agreement (also known as a premarital agreement) and are thinking about filing for divorce, it is important to learn more about how your prenuptial agreement may impact your divorce proceedings. When two people enter into a premarital agreement, they often agree to a variety of terms that will be applicable in the event of divorce. However, in some situations, it turns out that certain terms of the premarital agreement are unenforceable. We will say more about the terms in your premarital agreement likely will be enforceable in your divorce, as well as the terms that a court ultimately may consider unenforceable.

Learning More About Premarital Agreements in Florida 

To understand how your prenuptial agreement will affect your divorce case, it is important to learn more about premarital agreements in general. Any premarital agreement created in Florida falls under Chapter 61 of the Florida Statutes (Fla. Stat. § 61.079). The statute defines a premarital agreement as “an agreement between prospective spouses made in contemplation of marriage to be effective upon marriage.” Under Florida law, couples are permitted to come to an agreement about many different issues in a premarital agreement, including but not limited to the following:

• Rights and obligations of either party with regard to property (whether it would be classified as separate property or marital property);
• Right to buy sell, use, transfer, exchange, abandon (or engage in most acts with regard to) property whether it would be classified as separate or marital property;
• How property will be divided in the event of a separation or divorce;
• Waiver of spousal support; and
• Ownership rights in a life insurance policy.

Now, it is important to be clear that there are specific issues that a couple cannot come to an agreement about in a premarital agreement. Examples of those issues include:

• Right of a child from the marriage to receive child support;
• Timesharing issues;
• Any issue that would be in violation of public policy; and
• Any issue that would be in violation of a criminal law (and that would result in the imposition of a criminal penalty).

How Your Premarital Agreement May Impact Your Divorce 

Generally speaking, as long as your premarital agreement does not include a waiver of child support or any agreement concerning child support, or an agreement that would be in violation of public policy or criminal law, it will be enforceable when you go through your divorce. However, even if a premarital agreement does not engage in any of the topics that are not permitted, a court can still decide that it is unenforceable under certain circumstances.

For example:

• One of the parties did not voluntarily agree to one or all of the terms of the premarital agreement;
• One of the parties signed the premarital agreement under duress, or through fraud, coercion, or overreaching; and/or
• One of the parties agreed to the terms, but one or more of the terms are unconscionable because that party did not receive a full disclosure of the other party’s property or financial obligations.

If only one part of the premarital agreement is unenforceable, the court can strike that term and follow the rest of the agreement. In some circumstances, however, the court may find that the entire agreement is unenforceable due to fraud, duress, coercion, or a similar issue.

Contact an Orlando Divorce Lawyer 

If you have questions about enforcing a premarital agreement in your divorce case or showing that your prenuptial agreement is unenforceable, an Orlando divorce lawyer can help. Contact Anderson & Ferrin to learn more.

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