Tampa Prenuptial Agreement Attorney

Getting Divorced in Tampa with Prenup in Place

In one sense, parties who sign a prenuptial agreement have at least a fleeting thought that the marriage may not survive “until death do us part.” Florida stands only behind Nevada and Arkansas among the highest divorce rates in the United States. Between 2010 and 2020, roughly 4.8 out of every 1,000 marriages in Florida ended in divorce. Those married from five to nine years divorced at a rate of 64 percent.

Prenuptial agreements are a common part of many marriages in Tampa, especially when they have a lot of valuable things together. However, they’re not just for rich people. Under Florida law, any couple can enter into a prenuptial agreement, and once they’re in effect, they typically remain valid and enforceable as long as the marriage lasts.

Still, understanding these agreements and how they can impact your marriage–and divorce–is very important to your ability to protect yourself if your relationship reaches a breaking point. A prenup can simplify the end of a relationship, but it can also be unfair to one party or another. There’s also a chance that a prenup won’t hold up in a Florida courtroom.

At Robert Sparks Attorneys, we’re serious about protecting the rights and interests of our clients. Our team of Tampa divorce lawyers can guide you through the ins and outs of prenuptial agreements.

If you would like more information on these agreements and how they will affect you, contact us today for a confidential consultation.

What is a Prenuptial Agreement?

A prenuptial agreement–commonly known as a “prenup”–typically includes rules and plans that you and your partner agree on before getting married. Like many legal agreements, a prenuptial agreement is designed to safeguard individuals in case of a divorce, no matter the cause. In Florida, prenups are governed under the Uniform Premarital Agreement Act, which allows prenups to cover the following topics:

• Asset division – Prenups often outline how the couple’s assets, including real estate, investments, and personal property, will be divided in the event of a divorce or separation.
• Debts – They can specify how existing debts, such as loans or credit card balances, will be allocated between spouses.
• Spousal support – Prenups can establish whether one spouse will pay alimony or spousal support to the other and define the terms of such payments.
• Inheritance and gifts – These agreements can clarify how inheritance or gifts received during the marriage will be treated, whether they remain separate property or become marital assets.
• Business interests – If one or both spouses own businesses or professional practices, a prenup can address how those interests will be handled in case of divorce.
• Property rights – Prenups might determine whether certain properties or assets will be considered separate property (belonging to one spouse) or community property (shared by both spouses).
• Financial responsibilities – They can outline how financial responsibilities, such as household expenses and bills, will be shared during the marriage.
• Estate planning – Prenups can include provisions related to estate planning, such as specifying beneficiaries for life insurance policies or retirement accounts.
• Child custody and support – While prenups can’t legally determine child custody arrangements or child support, they can include preferences or agreements on how these matters should be handled.
• Dispute resolution – Prenuptial agreements may outline procedures for resolving disputes, such as whether mediation or arbitration will be used instead of going to court.

While a prenuptial agreement covers many of the issues that come up in a divorce, it’s important to understand that there are important legal boundaries in play for these contracts. Thus, when you or your spouse wants to enter into a prenup, you should be aware of the legalities.

Is a Prenuptial Agreement Legal in Tampa?

Generally speaking, a prenuptial agreement is like any other contract or binding agreement in Florida. As such, so long as both parties are of age, agree to the terms and conditions, and haven’t been misled, a signed prenuptial agreement is legally binding in Tampa.

That said, like child custody and support, there are certain things that can’t be included in a prenuptial agreement. These things include:

• Illegal activities – Prenups can’t involve illegal activities or encourage unlawful behavior. Similarly, they also can’t involve planning or supporting criminal behavior.
• Personal preferences – Matters related to personal preferences, such as where to live or how to raise children, are generally not enforceable in a prenup.
• Religious beliefs – Prenups can’t dictate religious beliefs or practices.
• Waiving rights – Certain rights, such as the right to spousal support, can’t be permanently waived in a prenup.
• Unfair or Unreasonable terms – Prenups that contain extremely unfair or unreasonable terms may be considered unconscionable and could be invalidated.
• Incentives for divorce – Clauses that provide incentives for divorce, such as financial rewards for ending the marriage, are usually not enforceable.
• Personal matters – Private and personal matters that don’t involve financial or property interests typically can’t be included.
• Healthcare decisions – Healthcare decisions and medical choices can’t be governed by a prenup.
• Privacy invasion – Provisions that invade a person’s privacy or dictate personal behavior are generally not allowed.

When creating a prenuptial agreement, it has to follow legal requirements and can’t include any provisions that could render the agreement unenforceable. Although legal in Tampa and throughout Florida, a prenuptial agreement being in effect can change quickly. As always, any legal questions you may have about prenuptial agreements should be taken up with our team of experienced Tampa divorce lawyers.

Prenup Agreements and Florida’s No-Fault Divorce

Florida’s no-fault divorce system somewhat eases the process of divorce. That is, the couple or a petitioning spouse need only prove that the marriage stands “irrevocably broken.” You don’t need to resort to showing infidelity, indignities, cruelty, or the like to dissolve the marriage.

Prenuptial agreements can further reduce the complexities in a divorce proceeding. With a prenup, or premarital agreement, you and your spouse take many potential disputes and issues out of the court’s hands should a divorce petition become imminent. Further, you don’t spend time after separation negotiating property and family matters.

That said, you might come to the divorce with regrets about entering into a prenuptial agreement. Talking to a skilled Tampa prenup lawyer can help ease your mind and leave you in a far better position if divorce becomes necessary.

Below, we describe what goes into a prenuptial agreement, how it might affect a divorce proceeding, and how you might attack its validity.

What Does a Tampa Prenuptial Agreement Do?

Property Division

A valid prenuptial agreement controls what happens to the marital property in the event of a divorce. To that end, it takes the place of the equitable distribution statute. A spouse can plead the prenuptial agreement as a bar to a claim for equitable distribution. Without a prenup, the court would determine what assets are marital and either divide them equally or apply statutory factors for uneven distribution.

Through prenuptial contracts, the spouses may decide in advance what constitutes separate property. This comes in handy especially if you or your spouse have considerable assets that you owned before the marriage or may have assets from prior marriages.

One party may wish to ensure that the other spouse has no claim to improvements or increases to the value of a home, business, or other property.

A Tampa Divorce Attorney will examine any prenup you consider signing to make sure it’s not unfairly limiting your rights to possessions. We also help you fight back against an unfair prenup that’s already been signed.

Allow Fuller Inheritance By Heirs

Spouses may employ a prenuptial as part of their estate planning. By default, a surviving spouse has a right to an elective share of the deceased spouse’s estate. Through exercising the option, the surviving spouse can take at least a portion that the decedent intended for the children – perhaps from a prior marriage. A prenuptial agreement can provide and often provides that each spouse waives the right to share in the other’s estate. That includes rights to inherit or take shares of the elective estate.

Dealing With Alimony

In a prenuptial, parties will commonly waive the right to seek alimony in a divorce proceeding. Alimony provides a financially dependent spouse with continued support following a divorce. In Florida, alimony can take the form of permanent (indefinite), temporary, support needed to help a spouse transition to single-life, or support needed to achieve financial independence.

Generally, Florida courts will honor the waiver of alimony in prenuptial agreements. However, if you were to become eligible for public assistance at the time of separation, you can obtain alimony to the extent that alimony would keep you from qualifying for public assistance.

Child Custody and Support

Courts have the charge of promoting and protecting the bests interests of children. As such, a prenuptial does not bind a court when it comes to child support or custody. Specifically, Florida law does not allow the parties to waive or affect the rights of children to support. It won’t bar a custody or support claim or override a parenting plan agreed upon after the divorce or imposed by the court in a custody action.

How Long is a Prenuptial Agreement in Effect in Tampa?

Because a prenuptial agreement is basically a contract, it enters into effect once signed and generally lasts until the marriage ends. This endpoint is usually included in the prenup itself. However, there are certain conditions or events that can cause it to be voided or modified. Therefore, a prenuptial agreement remains in effect until any of the following happens:

• Both spouses agree to modify or revoke the prenup. This requires the same level of voluntary agreement as when the prenup was initially created.
• The couple divorces or legally separates, the prenup’s terms come into play to determine the division of assets, spousal support, and other financial matters, as outlined in the agreement.
• In the event of the death of one of the spouses, the prenup’s provisions may come into effect regarding matters like inheritance and distribution of property.
• The court invalidates certain provisions of a prenup if they are found to be unconscionable, not made voluntarily, or not properly executed. This might lead to certain terms being unenforceable while keeping the rest of the agreement intact.

Why Many Florida Prenuptial Agreements Are Unenforceable

Not Signed At All or Before Marriage

Florida law requires that prenuptial agreements be written and signed by both parties. When a prenuptial involves real property, the agreement must include witnesses and a notary for the parties and witnesses.

As the name suggests, a prenuptial agreement comes before marriage. If you don’t sign it until after the marriage, its provisions do not determine what happens upon divorce. You and your spouse would have needed a post-nuptial agreement to be signed after marriage.

The post-nuptial accomplishes many of the same things as a prenup with respect to dividing marital property, waiving or limiting alimony, and waiving inheritance rights upon the death of a spouse.

However, you or your spouse cannot rely upon marriage as the “consideration” for the contract because you are already married. Something else must serve as consideration. That could come from mutual promises to forego alimony or exchanging property.

Forgery

Proof that the other spouse forged your signature voids a prenuptial agreement. Getting to that point may be difficult, but not impossible, in light of the requirement that signatures to a prenuptial be notarized. You may look for evidence that the supposed notary on the prenup is irregular or not in compliance with Florida law. In particular, the notary may not be registered by the State of Florida as such. Determine if a son, daughter, or parent of your spouse appears as the notary. Florida law prohibits a notary from notarizing the signatures of immediate family members on documents.

Beyond improprieties with the notary, you or your lawyer might engage a handwriting expert to compare what appears on the prenup with other documents you have signed. Evidence that you were not present at the place where you allegedly signed the prenup may come from witnesses who saw you elsewhere or receipts that indicate purchases or other transactions at a time other than when the agreement was allegedly signed. A divorce lawyer may pose interrogatories or depose the notary or the opposing spouse as to the circumstances of signing the document.

Duress

Duress occurs when one spouse’s illegal or improper actions pressure the other into signing it against the free will of the spouse seeking to invalidate the agreement. The forces that give rise to duress involve threats of bodily, reputational, or property harm.

Successful duress claims feature one spouse threatening to divulge embarrassing or perhaps unlawful actions of the one contesting the prenuptial – even if the party guilty of duress had a legal right to reveal the information. For instance, you may invoke duress if your spouse threatened to:

• Report you to the Internal Revenue Service or other taxing authorities for tax evasion
• Tell family members about prior acts of infidelity or that a cousin is actually a child from the spouse’s prior marriage
• Have you been prosecuted for criminal activity

You must prove in these instances that you would not have signed the prenuptial agreement had these or other acts of duress not occurred.

Having a Tampa Divorce and Prenuptial Agreement Lawyer look over any document you are considering signing is always the best choice.

Your Tampa Divorce Lawyer goes over each clause in a prenup agreement with you and makes sure you understand what you’re signing away. Your lawyer also stands by you if a marriage does come to an end to see that a prenup agreement is enforced fairly.

Coercion

You understandably might treat coercion as the same as duress. However, Florida courts tend to view coercion more broadly than duress. Under the umbrella of coercion, you will find conduct that exerts undue influence on the spouse challenging the agreement. Pressure comes from economic and moral forces rather than just threats to harm one’s person, property, or reputation.

A spouse might claim that the other would not go through with the marriage without the prenuptial. Standing alone, such a refusal does not invalidate a prenuptial. Judges look for additional circumstances, such as:

• That the agreement was signed just hours or a couple of days before the wedding
• The party trying to enforce the agreement misrepresented the necessity of a prenuptial to validate the marriage or meet other legal requirements

Unconscionability Plus

Courts may find the scales of a prenup so imbalanced as to render it unfair and unconscionable. Such agreements saddle one spouse with the vast majority of burdens and conditions, and the other gets the lion’s share of the benefits. Unconscionability alone will not invalidate a prenup in Florida.

You must point to the other spouse’s failure to fairly and reasonably disclose assets and obligations at the time of the prenup. The duty of disclosure includes those properties or debts that you likely won’t find from searching public records. These encompass:

• Stocks, bonds, mutual funds, and other investments
• Checking, savings accounts, and certificates of deposits
• Credit cards and personal loans
• Interests in unregistered partnerships or joint ventures
• Beneficial interests in trusts
• Insurance policies

If your spouse hid assets or liabilities at the time you signed the agreement, you should also show that you did not waive in writing your right to know what was not disclosed and that you did not know and could not reasonably know what was hidden. Your Tampa Divorce Lawyer protects you from these and other unfair tactics used by a spouse or another attorney.

Should You Get a Prenup in Tampa?

The question as to whether or not you need a prenup depends heavily on the circumstances. Although prenuptial agreements might not be required in all situations, they generally offer significant advantages. This is particularly true if your circumstances align with specific criteria, such as:

• You or your partner possess substantial assets.
• You or your partner carry debt.
• You or your partner have previous marriage experiences.
• You or your partner have children.
• You or your partner are business owners.

Practically speaking, prenups have the benefit of fostering open communication between you and your future spouse. These clear expectations contribute to building trust, which is a foundational element of any successful marriage. Still, being prepared is always best. Our team can make sure you know what you’re getting into if you have a prenuptial agreement.

Dedicated and Experienced Tampa Prenup Lawyers

When you and your partner are prepared to enter into a prenuptial agreement, it’s always a good idea to consult our team of skilled Tampa divorce lawyers at Robert Sparks Attorneys.

Our team can help you review your information and make sure that your rights and interests are taken into account in the agreement. And if you feel like your spouse isn’t taking this into account, we’ll make sure you reach a satisfactory agreement.

Robert Sparks Attorneys stands by you through divorce negotiations and litigation while putting a priority on your wellbeing. We make sure you’ll have what you need to rebuild your life once a divorce is finalized.

Don’t wait to get the help you need. Contact us today to set up a confidential consultation.