Florida Prenup & Divorce Statutes
You’re getting hitched in the sunny Florida and you’re wondering what to include in your prenup so it holds up against all of the sunshine, beautiful beaches, and Miami nights. Here is some information you need to know about Florida prenups, including the terminology you’ll want to know and links to the official state laws.
Florida Prenuptial Agreements
A prenuptial agreement (referred to as a premarital agreement in Florida) is a private contract between two people who plan to marry. Florida refers to their statute as the Uniform Premarital Agreement Act. A premarital agreement is drafted prior to marriage and details the financial rights and ownership of certain property both during the marriage and upon divorce or separation. Premarital agreements can also address in the event of death. In Florida, a premarital agreement is not in effect until the marriage takes place.
The Florida UPAA
Florida adopted the Uniform Premarital Agreement Act (UPAA) in 2007. The UPAA lays out uniform rules to help courts determine whether or not a prenuptial agreement should be enforced. You can read all about the Uniform Premarital Agreement Act here.
Want a little history lesson? In 1972, in the case of Posner v. Posner, 257 So. 2d 530 (Fla. 1972), the Florida Supreme Court upheld a prenuptial agreement containing spousal support provisions- this was previously a concept that had been deemed void as against public policy. In 1983, the Uniform Premarital Agreement Act (UPAA) was drafted in reaction to growing concern over the lack of uniformity in prenuptial agreements, as well as to validity and enforcement of these contracts. The demand for premarital agreements was steadily increasing. In 2007, Florida adopted parts of the UPAA, thereafter creating Florida’s own UPAA.
Florida Prenup Terminology
Property that is not marital: Non-marital Property
Property that is of the marriage: Marital Property
What to include in a Florida Prenup?
Here are some things you should keep in mind for your Florida prenup:
- Make sure it is in writing!
- The terms contained in the prenup must be lawful terms
- Both you and your fiancé must sign the agreement – and, we recommend initialing the bottom of each page!
- Your agreement must be signed voluntarily (this means without being under duress, intimidation, deceit, etc.)
- You should have your signatures notarized! This is not a requirement in all states, but is best practice.
- Financial disclosure (this is what your Schedule A or B financial schedule is for!)
What can you includein a valid Florida Prenup?
- Non-Marital Property – A Florida prenuptial agreement can specify what property should remain separate property of each party and not commingled or shared as a marital asset.
- Marital Property – A Florida premarital agreement can specify what property should be considered or become marital property. Marital property can include assets that were otherwise acquired prior to marriage (if you specify this should be the case- don’t forget about appreciation of otherwise non-marital property), as well as assets that may be acquired during the marriage.
- Alimony – This is AKA spousal support, or in some states, spousal maintenance, and is support of one spouse, by the other spouse. How alimony is calculated depends on state law. Your Florida prenuptial agreement can specify whether you and your future spouse will choose to follow the alimony laws of Florida, or whether you will choose to waive alimony altogether. These are points that can be negotiated in a premarital agreement.
- Support of Children – Child support or custody of children of the marriage may not be addressed in a prenuptial agreement.
Florida Uniform Premarital Agreement Act
The Florida Uniform Premarital Agreement Act dictates what can be included in a valid Florida premarital agreement. Per the Act, the definition of a premarital agreement is:
“Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”
Per the Act, you may contract with respect to the following:
Parties to a premarital agreement may contract with respect to:
1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The establishment, modification, waiver, or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
What to exclude from your Florida prenup agreement
Make sure you don’t include the following!
- Child custody or child support of children of the marriage
- Incentive to commit illegal acts
- Incentive for divorce
- Unfair, unjust, or deceptive terms
Statutes & terms to help know
*Major prenup hack alert!* We’ve created a “prenup encyclopedia” for your reference so you can seamlessly get through any concepts or phrases that are necessary for your prenup.
Official term for jointly owned property
In Florida, marital property is divided equitably in a divorce (but not always equally). States are considered to follow a community property theory or an equitable division theory. Florida is an equitable division state.
According to the Florida statute, Marital Assets and Liabilities can include:
“Marital assets and liabilities” include:
a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
b. The enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.
c. The paydown of principal of a note and mortgage secured by nonmarital real property and a portion of any passive appreciation in the property, if the note and mortgage secured by the property are paid down from marital funds during the marriage. The portion of passive appreciation in the property characterized as marital and subject to equitable distribution is determined by multiplying a coverture fraction by the passive appreciation in the property during the marriage.
Official term for independently owned property
According to the Florida family law statute, “Nonmarital assets and liabilities” include:
1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and
5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney’s fees and costs pursuant to s. 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney’s fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.
Alimony Upon Divorce
Here is the fine print from the Florida statute itself:
(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be bridge-the-gap, rehabilitative, durational, or permanent in nature or any combination of these forms of alimony. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.
(2) In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common.
(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties.
Florida Divorce Statute:
“Dissolution of Marriage:” State terminology used in referring to divorce
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(Not speaking about your marriage – commitment is absolutely necessary there).