A Premarital Agreement, commonly known as a Prenup, is, “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. 61.079(2)(a). Said agreements may be enforceable, as well as unenforceable, in a variety of different situations. To begin to understand this area of the law, one needs to explore Florida Statute 61.079. First, as previously stated, such an agreement is made between two individuals, prior to getting married, who wish to contemplate their rights and responsibilities in anticipation of a marriage. As such, the premarital agreement, “must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.” 61.079(3).
In other words, so long as the agreement is in writing, you and your prospective spouse both sign the agreement, and you actually get married, you don’t need to exchange and/or give anything else to the other person in exchange for entering into said agreement.
Having said that, what are you allowed to agree to in a premarital agreement? Among other things, you are allowed to agree to anything that would pertain to your personal rights and obligations as it relates to your marriage; such things may include, but may not be limited to property rights, alimony, etc. 61.079(4). Generally, you may enter into a contract to dictate your personal rights and obligations as it relates to the marriage, so long as it is “not in violation of either the public policy of this state or a law imposing a criminal penalty.” 61.079(4)(a). So, if you’re trying to agree on something that is against public policy or illegal, it is likely that the court will not enforce your agreement. Moreover, you cannot contract away child support. Child support is a right of the child and cannot be waived. As such, in such agreements, “the right of a child to support may not be adversely affected by a premarital agreement.” 61.079(4)(b). “After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.” 61.079(6).
Therefore, if you’ve entered into a valid premarital agreement, get married, but later agreed in writing with your spouse to revoke or abandon said agreement, it is likely that the agreement will no longer be enforceable. A valid premarital agreement may also be unenforceable because of things such as, but not limited to, the party did not execute the agreement voluntarily, the agreement was the product of fraud, duress, coercion, or overreaching, or the agreement was unconscionable and before the agreement was entered into, that party was not provided full disclosure from the other party, while at the same time not waiving such rights to disclosure and did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party. 61.079(7). Issues of unconscionability of a premarital agreement are decided by the court as a matter of law. 61.079(7)(c).
In light of the current state of Florida law, it is advisable to seek a premarital agreement in most circumstances. If you are interested in doing so, contact Men’s Rights Law Firm today to discuss the possibility of obtaining a prenup for your financial protection.