If you’ve ever thought of making your own DIY prenup, you may want to think again. Writing your own prenup in Florida can be a dangerous game (and that’s true for any state). While it is “dangerous,” it’s still technically possible to create a valid prenup on your own (it’s just not recommended). Let’s dive into why this could be “dangerous,” and if you ARE willing to take the risk, what you should be sure to include (and not include) in your homemade Florida prenup.
What is a Prenuptial Agreement?
First things first–what is a prenup? A prenuptial agreement (a.k.a. antenuptial agreement or premarital agreement in Florida) is a legal document that outlines how assets, liabilities, and property will be handled in a divorce or separation. It can also cover other things such as alimony, confidentiality, joint tax filing, joint bank accounts, and more.
Prenups can also be an emotional document as much as a legal/financial document. For example, in order to come to terms with your future spouse on all things financial and marital, you will need to do some in-depth communication and align on goals. This helps set expectations for the marriage to get it started off on the right foot!
Can I Write My Own Prenup in Florida?
Technically, yes, you can write your own prenup in Florida. There is no law that says you can’t. However, it is important to note that prenups are contracts that must comply with Florida law to be enforceable. If your prenup does not meet the legal requirements, it may not be enforceable in court. This is why it is highly (highly) advised that you seek out legal help, whether through an attorney or a state-compliant platform like HelloPrenup.
Benefits of Hiring an Attorney for a Prenup
An experienced attorney can ensure that your prenup complies with Florida law and covers all of the necessary issues. Not only that, but a lawyer can also provide guidance on what can and cannot be incorporated into your prenup for your specific circumstances. You can also ask them legal questions, get advice, and hear what works best from their experience with prenups and divorce.
Benefits of Using HelloPrenup for a Prenup
HelloPrenup is an affordable way to make your own prenup without a lawyer (if your state allows this). It gives YOU and your partner the control to oversee everything that goes into your prenup while maintaining state compliance. Using HelloPrenup can also be a lot quicker (and, of course, cheaper) than using an attorney, which is a huge plus for many.
What Makes a Prenup Valid in Florida?
Let’s dive right into what makes a prenup valid in Florida. To be valid and enforceable in Florida, a prenup must meet the following requirements:
- The prenup must be in writing
- Both partners must sign the agreement
- Both partners must enter into the agreement voluntarily and without fraud or duress
- The prenup itself must be reasonable when signed or when enforcing it
- Both partners must fully disclose their finances (assets, debts, future inheritances)
- The subject matter of the prenup must not be against public policy or other laws
- An alimony waiver would not be enforceable if waiving it would cause one person to be eligible for public assistance
If any of the above criteria are not met, then the prenup is subject to being thrown out by a court, which is why it is crucial to seek legal help when creating a prenup because it can be difficult for a non-lawyer to make sure all of the above are properly done.
What Can a Florida Prenup Include?
What about the contents of the prenup? What can you actually write into a Florida prenup? A prenup may include the following:
- Separate property versus marital property in the event of divorce
- How premarital and marital debt should be handled in divorce
- Alimony waivers or modifications
- Lump sum clauses (also known as equalization clauses)
- How property should be divided upon death
- Confidentiality
- How to handle engagement rings upon divorce
- Sunset clauses (i.e., expiration dates on the prenup)
- Whether or not alternative dispute resolution is required
- Whether or not one spouse is required to maintain health and life insurance for the other person
- Pet “custody”
- Whether one person may remain in the primary residence upon divorce for a set amount of time
- And more.
As you can see, there are many things that you can include in a prenup, and without a lawyer, it may be difficult to understand what is “allowed” under each category. For example, what are the limits around alimony waivers? Well, they can easily be thrown out if not done properly in Florida.
What Should You NOT Include in a Florida Prenup?
A prenup should not include provisions that are illegal or against public policy. A Florida prenup may also NOT include provisions about child support or child custody. Another thing to avoid would be adding unreasonable clauses. This one can be more difficult to discern as a non-lawyer because what is “reasonable” isn’t necessarily a straightforward black-and-white answer.
Can a Florida Prenup Be Challenged in Court?
Yes, a Florida prenup (or a prenup in any state) can be challenged in court and ultimately thrown out if the court finds it unenforceable. If one party believes that the prenup is unfair or invalid, they can challenge it during a divorce or separation. The court will then decide whether or not the prenup should “stand.”
Here are some ways that a person can challenge a Florida Prenup:
- Lack of proper formalities: The prenup was not in writing or not signed.
- Lack of reasonableness: The prenup includes provisions that were unreasonable at the time of signing it or have become unreasonable at the time of divorce.
- Lack of voluntary consent: If one party was coerced or forced into signing the prenup, it might be considered invalid.
- Lack of full disclosure: If one party did not fully disclose their assets, debts, or future inheritances, the prenup may be considered invalid.
- Against public policy or unlawful: If the prenup includes provisions that are against public policy or against the law. (This is where adding child support/child custody clauses may fall).
If any of these things are brought to a court, a court will then look at the prenup and the circumstances and make a decision–the prenup either stands or gets thrown out.
Pros and Cons of Writing Your Own Florida Prenup
As you can see, there are both upsides and downsides to writing your own prenup in Florida. Let’s start with the pros of writing your own prenup:
- Cost savings: Of course, number one is that it’s the cheapest option. Writing your own prenup can save you money on attorney fees.
- Control: Writing your own prenup gives you more control over the terms of the agreement. (Although HelloPrenup also offers this same level of control, with the reassurance of state compliance).
- Flexibility: A DIY prenup allows you to write your prenup on your own time, without the constraint of an attorney’s schedule or other outside factors.
Let’s take a look at some of the cons of a DIY Florida prenup:
- Lack of legal compliance: Prenups must comply with Florida law to be enforceable, and it can be difficult to ensure that you are meeting all of the legal requirements without the help of an attorney or HelloPrenup.
- Not understanding all of your options: Without using legal resources such as HelloPrenup or an attorney, you may have no idea what your options are. You may not even know that a certain clause exists that would be super useful for you; however, by using an attorney or HelloPrenup, all of your options will be provided to you.
- Time spent researching: Prenups can be complex legal documents, and it can be difficult to ensure that you are covering all of the necessary issues without the help of an attorney. This can lead to frustration and a lot of time spent researching.
- Lack of peace of mind: Knowing how complex prenups are, when you create your homemade prenup, you may not have the same peace of mind that your assets are protected, knowing that there’s a higher chance your prenup can be challenged and thrown out in a divorce.
- Getting taken advantage of: Without legal advice, you may not know what your rights are and what you should/should not include in the prenup. This can lead to an unfair outcome that you may have to live with, in the event of a divorce.
Common Mistakes to Avoid When Writing a Florida Prenup
If you’re still headstrong on writing your own prenup, there are several common mistakes you should learn about and avoid. Some of these include:
- Not fully disclosing finances (assets, debt, inheritances)
- Including provisions that are against public policy
- Including provisions that are against the law (this includes adding clauses related to child support/child custody)
- Creating a prenup that is unreasonable or likely to become unreasonable in the future
- Not putting the prenup in writing
- Not signing the prenup properly
- Forcing your partner to sign the prenup
As you can see, there are a lot of “landmines” you could step on while making a prenup without legal help. This is why it is highly (HIGHLY) recommended that you use an attorney and/or HelloPrenup for your prenup needs.
The Bottom Line
In Florida, while it is possible to write your own prenup, it is not recommended to do so. It’s best to hire an attorney or use a state-compliant platform like HelloPrenup to ensure that your prenup complies with Florida law and covers all of the necessary requirements.
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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