As more people use prenups, there are lots of cases about them. If you ever need to make one in Florida, be careful of some common problems. First, make sure the prenup says that getting married is the reason for it. Also, both people need to share all their money and income, not just their stuff. Don’t only use tax returns to show income. Put all the money info in the prenup and have both people sign it. It’s important to be open and honest about your finances when making a prenuptial agreement, but you don’t have to give exact values for everything. Estimates can be okay, but it’s best to give the other person a chance to get things appraised if they want to. It’s also a good idea to say what kind of value you’re estimating, like book value or fair market value. If the agreement is fair for both people or if the other person already knows roughly what you have, you might not have to disclose everything. But it’s safer to just be open about everything to avoid problems later on. The Prenuptial Agreement (PA) should not be signed at the last minute before the wedding. It should be given to both parties at least two to three weeks before the wedding, so there is enough time to review it. In one case, the PA was given to the wife just two days before the wedding, and she didn’t have enough time to understand it or get advice from her own lawyer. The court said this was not fair and the PA was not valid. In another case, the PA was given to the wife two weeks before the wedding, and the court said this was okay because she had enough time to review it. If it’s possible, record the signing of the prenuptial agreement to show that both parties were there with their lawyers and not under any pressure. If the agreement has terms for what happens if someone dies or if there’s a divorce, it needs to be signed with two witnesses like a will. The parts of the agreement about children aren’t enforceable, so it doesn’t make sense to include them. If the agreement is supposed to waive one person’s right to alimony, it needs to be very clear about that. But a general statement about waiving other rights won’t work. Some agreements also have parts where one person gives up the right to temporary support or paying for lawyers, but those parts might not hold up in court. A prenuptial agreement (PA) can’t have a provision that offsets temporary relief payments or waives interest in certain types of income and assets. If you want to keep your income and assets separate, the PA must specifically say so. Also, if you want to protect your separate property from your spouse, the PA should include language about appreciation of that property. Lastly, be aware that a waiver of interest in retirement plans may not be enforceable if the parties weren’t married when the agreement was signed. In order to avoid problems with prenuptial agreements, the nonparticipating party should sign any required waivers after the marriage. If they refuse, the agreement could be enforced by a court and the noncompliant party would have to pay for legal costs. It’s important to remember that different laws apply to different types of benefits and rights in a divorce. For example, you can’t waive survivor benefits, but you can waive rights to marital property. If you’re getting divorced in Florida, it’s important to understand the rights you have in your family home. Both spouses need to agree to sell the home, and if one spouse dies, the other gets to live there for the rest of their life. In some cases, one spouse might have to pay the other cash as part of the divorce agreement. It’s important to think about the taxes on these payments and decide how they will be handled. It’s also important to think about how income taxes on separate property will be paid. Make sure to discuss these things with your lawyer to avoid any surprises later on. Some prenuptial agreements may require parties to file tax returns together, while others allow for joint filing by request. It’s important to avoid mixing separate and joint funds, as it could change the nature of the separate property. It’s also smart to have a lawyer look over the agreement before signing, to make sure everything is fair. Each party should have their own lawyer to avoid any conflicts of interest. It’s common for one party’s lawyer to give the other party a few options for lawyers to choose from. It’s not a good idea to only give one option. The party with less money should try to avoid paying for the other party’s lawyer. If the prenuptial agreement (PA) is challenged in court, the lawyer who prepared it may not get paid for the time they spend testifying. To avoid this, the lawyer might charge more for preparing the PA and include in their contract that they’ll get paid for testifying. Prenuptial agreements are often challenged in court, but being careful and avoiding these problems can help make the agreement stronger. People in America move around a lot, so it’s hard to predict when someone will become a Florida resident and have to follow their laws about prenuptial agreements (PAs).
Some family lawyers don’t want to write PAs because they don’t make much money from them and could get sued for making a mistake.
In Florida, as long as two people get married, that’s enough reason for a PA to be valid.
When it comes to PAs in Florida, both parties need to disclose what they own and owe before the agreement is signed. If they don’t, the PA might not be enforceable.
If one party rushes the other to sign the PA, it might not count and could be thrown out by the court.
PAs can affect taxes and retirement benefits, so it’s important to get professional help when writing one.
If one person doesn’t have a lawyer when signing a PA, it could cause problems later on.
This article was written by lawyers for the Family Law Section. Make sure lawyer’s follow rules, be good at their job, and help people.
Source: https://www.floridabar.org/the-florida-bar-journal/probable-problematic-pitfalls-in-preparing-prenuptial-agreements/
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