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 agreements offer a mechanism for both future spouses to establish the division of their assets and property in the event of divorce or a spouse’s passing. 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.
What is the UPAA/UPMAA?
In 1983, the Uniform Premarital Act was created with the aim of promoting uniformity and consistency in the interpretation and application of prenuptial agreements (also called premarital or antenuptial agreements) across different states. To simplify, the UPAA establishes a set of regulations for prenups, some requirements include putting a prenup in writing and requiring signatures. In 2012, this Act underwent an update and was rebranded as the Uniform Premarital and Marital Agreements Act (UPMAA). Currently, twenty-eight (28) states have adopted this standardized framework. Florida (including Miami of course) is one of the 28 states that has adopted the framework.
Prenuptial agreements, referred to as “Premarital Agreements” in Miami, are legal in the Sunshine State. You can find the laws governing Florida Premarital Agreements under the s61.079 Premarital Agreements Florida Statute, which applies to Miami prenups. These laws are aligned with the UPAA standards.
When is a Premarital Agreement beneficial for a Miami Resident?
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? Nearly anyone can find advantages in a prenup, regardless of their wealth status. 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.
“Choice of Law”
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.
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.
In any case, if you move in the future, the state you move to will enforce your agreement under the laws of the state you contracted in (if you divorce, that is).
What Can A 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 of 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 Premarital Agreement Enforceable in Miami?
In Florida, premarital agreements are governed by Florida’s Statutes (which follow the UPAA/UPMAA 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
What Makes a Premarital Agreement 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.
Notable Cases in Florida with regards to Premarital Agreements
You Don’t Need a Lawyer in Florida for a Prenup, But it Can Help!
Waton v. Waton, 887 So. 2d 419 (Fl. Dist. Ct. App. 2004)
The Watons were married for eighteen years when they filed for divorce. Before they were married, they had signed a premarital agreement that had provisions for each party to retain their separate property, as well as 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 there had not been a full financial disclosure by Mr. Waton, 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 it is not required to have attorneys for a valid and enforceable prenup in Florida, it can add an extra layer of protection against your spouse challenging the prenup in the future. As shown in this case, the court pointed towards 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.
Executing a Prenup Hours Before a Wedding: Good idea or not?
Francavilla v. Francavilla, 969 So. 2d 522 (Fl. Dist. Ct. App. 2007)
We’ll give you the short answer: it’s not recommended to execute a prenup an hour before your wedding. 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!
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 went on for several months, and the agreement itself 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.
What Constitutes Duress in Florida? (Hint: Don’t Sign a Prenup the Night Before Your Wedding)
Flaherty v. Flaherty, 128 So. 3d 920 (Fl. Dist. Ct. App. 2013)
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 due to the fact she signed under duress and she 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.
Florida Terms and Statutes
- Separate Property (i.e., Non-marital assets or liabilities): Property owned before marriage, or any gifts, or anything gained as part of an inheritance while married. This can also include assets listed as Separate Property in a prenuptial agreement.
- Marital Property (i.e., joint property): All assets and debt acquired by a couple during the marriage or other property deemed joint as per their prenuptial agreement.
- Divorce: Florida is a no-fault divorce state. This means that either party can file for divorce without a minimum waiting period and without proving the other party’s at fault. In other words, you can file for divorce by simply stating that the marriage has failed due to “the marriage being irrevocably broken.” See 61.052 Dissolution of marriage.
- Alimony: can be temporary or permanent payments from one spouse to another in the event of a divorce. The amount and duration is determined by many factors. Some factors that determine the length and amount of alimony may include:
- Length of marriage (Three years versus thirty-three years makes a big difference in terms of an alimony award in the court’s eyes)
- Potential for employment (if the wife had been a stay at home mom for fifteen years and has no college education it is going to be harder to support herself versus a doctor with no kids)
- Financial situation of both parties
See 61.08 Alimony
Conventional Prenup Expenses vs. HelloPrenup Expenses
The typical cost of a prenuptial agreement across the United States stands at about $2,500. This figure reflects the expense of obtaining a prenup through the “traditional” route of hiring an attorney, as opposed to utilizing an online platform like HelloPrenup to make your prenup. However, it’s important to note that this $2,500 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, or if you opt for a high-cost attorney, you might be faced with a substantial bill well over the national average cost. What are your other options!? This doesn’t seem right! $2,500 just to protect your finances?! Enter: HelloPrenup.
Compare this standard expense of $2,500+ and contrast it with HelloPrenup’s cost of $599 per couple. By utilizing HelloPrenup’s self-serve prenup platform, you are able to save an incredible $1,900 or more. Why would someone use HelloPrenup’s platform? Well, it’s cheaper, the process is much faster, and it gives YOU control over your prenup.
Even if you choose to utilize HelloPrenup’s platform while also seeking an attorney’s review for legal questions or legal advice, you’ll still save a significant amount of money. Confused? We get it. Let’s break it down for you: HelloPrenup’s approach reduces your attorney’s hours that it would take them to draft up the initial prenup. It could take a lawyer two to twenty hours to write up your prenup. When you use HelloPrenup, you already have a draft in hand.
Locating 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’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.
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: [email protected]
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