Thinking of getting a prenup in Miami? Congrats, and good for you! A prenuptial agreement, also known as a premarital agreement, functions as a contract between two individuals who intend to marry. This agreement comes into effect once the marriage takes place. Such contracts are a tool for both future spouses to establish the division of their assets and property in the event of divorce or death. Before engaging in a prenuptial agreement, it may be beneficial for both parties to seek guidance from individual licensed attorneys specializing in Miami prenuptial agreements. This consultation can help bolster the validity and enforceability of the agreement. Let’s get into everything you need to know about prenups and prenup lawyers in Florida.
When is a premarital agreement beneficial for a Miami resident?
Spoiler alert: Everyone should consider a premarital agreement in Miami. Premarital agreements extend their usefulness beyond just individuals of high wealth. In essence, a prenup outlines the division of property and allocates ownership. Even if your combined assets amount to $5,000, how should this be fairly divided? Should one of you get it all? No matter the value of your combined assets, you both will want to get your fair share…right?! Of course! Enter: The prenup.
In Florida, the state follows the legal framework of “equitable distribution,” which chooses fairness over an even split. In simpler terms, the court determines the distribution of your possessions; it’s not an automatic 50/50 split. A prenup increases the likelihood of the court honoring such an agreement, provided it’s a valid and enforceable agreement.
So, who should get a prenup? Regardless of their wealth status, nearly anyone can find advantages in a prenup. More specifically, couples with previous marriages, children from prior relationships, and/or those with separate property or business interests that they want to protect can discover significant value in a premarital agreement.
Should Florida law govern my prenup?
A consideration to keep in mind is state residency because you must choose a state to govern your prenup. For example, if you live in Florida, you probably should not just pick Minnesota because you feel like it. You should choose Florida laws to govern your prenup if that is where you plan to reside as a married couple. It is important to consider where you plan on residing in the future when it comes to choosing your choice of law state. If you are a Miami resident and you think you may one day leave Florida, it is important that you consult with a Miami attorney and/or an attorney in the potential state you may reside in.
What can a FL premarital agreement contain?
As you probably know, a prenup (i.e., a premarital agreement) tells you and your spouse “who gets what” in the event of a divorce and sometimes death. What is permitted in a prenup can vary from state to state. In Florida, an agreement can specify:
- What property should stay separate property, income, gifts, and/or inheritance
- What property is considered shared property (i.e., what is divisible in a divorce)
- Responsibility for separate debt and shared debt
- Waiving certain rights (i.e., inheritance, will, alimony)
Steer clear of topics regarding child custody and child support, and topics that violate public policy. Including any of these can get your prenup thrown out.
What makes a prenup enforceable in Miami?
In Florida, premarital agreements are governed by Florida’s Statutes (which follow the UPAA Guidelines). In order for a Florida prenup agreement to be enforceable, there are several things to be aware of:
- Must be signed before marriage
- Must be in writing
- Must not include unlawful terms
- Must be signed by both parties
- Must be signed voluntarily
- Must include full disclosure of all assets and liabilities
Keep in mind that while these are the baseline requirements under Florida law, courts will also consider the overall fairness and circumstances surrounding the agreement. For example, if one party was pressured into signing or didn’t have enough time to review the prenup before the wedding, a Miami judge could rule the agreement unenforceable.
What makes a prenup unenforceable in Miami?
Across the entire state of Florida, a prenup is generally unenforceable if it includes provisions that violate Florida law, provisions that violate public policy, provisions regarding child support and/or custody, extremely unfair/unreasonable provisions, or an alimony waiver that necessitates public assistance for one spouse. Prenups in Miami can also be unenforceable if they are overly one-sided or procedurally unconscionable, meaning they were created under involuntary or coerced circumstances.
Do I need a Miami prenup lawyer to review my prenup?
Short answer: No, you do not need a lawyer for a Miami prenup. In all of Florida, you don’t need a lawyer for an agreement to be valid and enforceable. For instance, in the case Gordon v. Gordon, 25 So. 3d 615 (2009), a Florida court stated that a person should have time before the wedding to consult a lawyer if they choose to. The court ruled that having 10 days before the wedding to seek legal advice is sufficient. However, hiring a lawyer is optional; what matters is that the person has the opportunity to do so.
Notable Cases in Florida with regard to Premarital Agreements
If you are curious about how real courts treat real couples’ prenups in Florida, look no further. See below some important FL case law pertaining to prenups.
A case showing that you don’t need a lawyer in Florida for a prenup, but it can help
In this case, the Watons had been married for 18 years when they filed for divorce. Before they were married, they had signed a premarital agreement that provided for each party to retain their separate property and any separate assets they may acquire throughout the marriage. Ms. Waton also waived any right to alimony. Both parties were represented by separate attorneys, and the agreement was completed two weeks before the wedding.
Eventually, they filed for divorce, and Ms. Waton argued the agreement was not signed voluntarily and that Mr. Waton had not made a full financial disclosure, but the court disagreed. Due to the fact that both parties had separate attorneys and that the agreement had been signed two weeks before the wedding, they ruled the agreement was enforceable.
Although attorneys are not required for a valid and enforceable prenup in Florida, having one can add an extra layer of protection against your spouse challenging the prenup in the future. As shown in this case, the court pointed to the fact that Ms. Waton had her own attorney as part of the argument that the prenup was valid and enforceable. While not required, the attorney showed that she entered the agreement voluntarily. (Waton v. Waton, 887 So. 2d 419 (Fl. Dist. Ct. App. 2004)).
Executing a prenup hours before a wedding: Good idea or not?
We’ll give you the short answer: Executing a prenup an hour before your wedding is not recommended. Why? Many times, it will get thrown out by a court for duress. However, that is not always the case… Let’s dive into a case that shows how a prenup can be upheld, even if executed an hour before the wedding!
In this case, a Florida couple got married twice. The second time they married each other, they had a premarital agreement drawn up. Ms. Francavilla was seven months pregnant at the time she was given the premarital agreement, and both parties were represented by separate counsel. Negotiations continued for several months, and the agreement was not signed and notarized until an hour before the wedding.
When they got divorced, Ms. Francavilla claimed she signed the agreement under duress because she was presented with the prenup an hour before the wedding and did not want to cancel it. The court took into consideration the fact that both parties had the agreement for a long period of time prior to the signing, and both had been represented by attorneys. In addition, the court also considered the wedding venue when determining the enforceability of the agreement. The couple was getting married at the courthouse and found that the wedding could have been easily canceled if there was true duress here. The result? The prenup was enforceable. (Francavilla v. Francavilla, 969 So. 2d 522 (Fl. Dist. Ct. App. 2007)).
What constitutes duress in Florida? (Hint: Don’t sign a prenup the night before your wedding)
When a prenup is signed under duress, it’s not enforceable. A court won’t enforce a contract that someone was essentially forced into (i.e., under duress). Let’s look at a case that discusses this issue.
Mr. Flaherty wanted a premarital agreement. A month before his wedding, he gave his future bride a draft of an agreement along with a list of lawyers. The soon-to-be Mrs. Flaherty met with an attorney shortly before the wedding and was advised not to sign the agreement because she waived many of her rights, such as alimony and a portion of marital assets. However, the night before the wedding, late in the evening (around 11:30 PM), she was handed a final agreement that included limited alimony and health insurance. It was a chaotic time, and the wife did not speak with her attorney but signed the agreement without fully reading it, and the agreement was notarized at 2 AM.
When the couple divorced, Ms. Flaherty argued the agreement was unenforceable because she signed under duress and had not fully read it. The court agreed with her – this prenup was invalid and unenforceable. The lesson to be learned here: don’t present a prenup to your spouse the night before the wedding, or it risks being thrown. (Flaherty v. Flaherty, 128 So. 3d 920 (Fl. Dist. Ct. App. 2013)).
Conventional Miami prenup cost vs. HelloPrenup expenses
The typical cost of a Florida prenuptial agreement is $1,850 for one spouse, according to Florida prenup attorney Adalbert Martinez. This figure reflects the expense of obtaining a prenup through the “traditional” route of hiring an attorney instead of utilizing an online platform like HelloPrenup to make your prenup. However, it’s important to note that this $1,850 estimation is just that–an estimate. Depending on your circumstances, the cost of a prenup can surge to $10,000 or even beyond. If you have an intricate financial situation, or your prenup requirements are complex. What are your other options!? This doesn’t seem right! $1,850 per person just to protect your finances?! Enter: HelloPrenup.
Compare this standard expense of $1,850+ for one partner with HelloPrenup’s cost of $599 per couple. By utilizing HelloPrenup’s self-serve prenup platform, you can save thousands. Why would someone use HelloPrenup’s platform? Well, it’s cheaper, the process is much faster, and it gives you control over your prenup.
Finding a prenup lawyer in Miami
Now that you’ve grasped the fundamentals, let’s delve into the process of finding a prenuptial agreement lawyer in Miami. Here are some pointers to help you discover an exceptional lawyer to assist you on your prenup journey:
Google Search
Initiate your quest by using good ol’ Google. Enter search terms like “prenup lawyer Miami” or “prenuptial agreement lawyer Florida.” Scan through the search results that appear. You might come across well-established law firms in your vicinity specializing in family law or matrimonial cases. Remember, you’re seeking a family law lawyer with expertise in prenuptial agreements. Keep in mind that not all family lawyers handle prenups.
Seek Out Family and Friends’ Recommendations
Word of mouth can be extremely helpful in finding an excellent Miami prenup lawyer. Reach out to friends, family, and colleagues who have engaged the services of a family law attorney in Miami before. Personal recommendations can offer insights into an attorney’s competence, demeanor, and overall approach. It’s important to emphasize that you’re in search of a PRENUPTIAL attorney, someone well-versed in prenuptial agreements (no, not all family law attorneys are).
Florida Bar Association
Look up the Florida State Bar Association for referrals to reputable family law attorneys who specialize in prenuptial agreements. By looking up lawyer referral services on the Florida State Bar Association and narrowing your search to family law lawyers in Miami, you’ll discover a huge list of qualified attorneys.
By following these steps, you can streamline the process of finding a skilled prenuptial agreement lawyer in Florida who can guide you through your prenup journey.
How to get married in Miami
If you’re looking into a prenup lawyer in Miami, it means you’re getting married–congrats! If you’ve chosen the vivacious city of Miami as the backdrop for your wedding, understanding the necessary formalities is essential to ensure a seamless experience. Here’s a comprehensive breakdown of the key steps involved in getting married in Miami:
Obtain a Marriage License
Kickstart your marital journey by obtaining a marriage license from the Miami-Dade County Clerk’s Office. Both you and your partner must fill out a form before appearing in person with valid identification, such as a driver’s license or passport. Keep in mind that there is an $86 fee for the marriage license, and there’s a mandatory three-day waiting period before the license becomes effective. This waiting period can be waived if you complete a four-hour premarital course from a registered provider.
Plan a Ceremony
Choose the type of ceremony that resonates with you both. Whether it’s a religious ceremony, a secular one, or a personalized union, Miami offers a range of options to suit you and your beau. Don’t forget that the ceremony must be performed within 60 days of the marriage license issuance.
Choose an Officiant
Not just anyone can marry you. You need a special person (typically called a marriage officiant) to perform the ceremony. Each state is different. In Miami, Florida, these are the acceptable types of officiants:
- An ordained minister, priest, rabbi or other clergy
- A Florida judge
- A Florida Clerk of the Circuit Court
- A Florida public notary
Return the marriage license
After the ceremony takes place, you must return the marriage license to the Miami-Dade County Marriage License Bureau within 10 days of said ceremony.
The bottom line on prenups and prenup lawyers in Miami
Well, there you have it. Everything you need to know about prenups and prenup lawyers in Miami. From the legal requirements and what makes a prenuptial agreement enforceable to how to get married and make it all official! Remember, you have to get married in order for your agreement to be legitimate. And while a prenup lawyer in Miami isn’t required, it’s a way to increase the odds of enforceability because it shows a court that each party entered into the agreement voluntarily and knowingly. So, go on and get that prenup started so you can get back to wedding planning. Congrats and happy planning!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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