You have met a wonderful person later in life, and you fall in love. While talking about your exciting life together, you or maybe even your loved one mentions a prenuptial or premarital agreement. The realities of your financial situation weigh on your mind. You own many valuable assets – assets you would like to protect in case things don’t go as planned. You have children from a previous marriage whom you would like to include in your estate planning.
You certainly don’t want to be a “killjoy,” and you certainly don’t want your intended to think your assets and your children are more important than your beloved. However, you need to address your concerns. Although you love your intended and believe your relationship will stand the test of time, you are a realist and know that despite your intention to make this marriage work, statistically it may fail.
So, what do you do?
First, you should be honest and let your intended know that you want a prenuptial/premarital agreement. The more you understand why you want and need this document signed before marrying, the more successful you will be in helping your intended and your lawyer understand your goals. How you handle the conversation regarding a prenuptial/premarital agreement directly affects the reception of the agreement. The fact that you are wanting to discuss what happens in the event you divorce can be disconcerting. Therefore, spending time thinking about the real reasons you need a prenuptial/premarital agreement will help not only you and your lawyer, but also your spouse-to-be, understand the importance of this agreement.
Talking about a prenuptial/premarital agreement at an early stage helps to ensure proper pacing and preparing. It is important not to rush drafting or executing these agreements. This process should be carefully paced and well-considered. (You certainly wouldn’t want to present a prenuptial/premarital agreement to your spouse-to-be the night before the wedding).
Prenuptial/premarital agreements are part of what we call “preventive law.” In preventive law, we attempt to look into the future and determine what might happen…and we usually attempt to evaluate the worst case scenario.
Creating a prenuptial agreement can be a kind thing to do. This is especially so if you include language that requires civil and respectful behavior and communication. Your agreement can also dictate how issues can be settled with a requirement for arbitration or mediation before litigation. Setting the stage for respect and civility in the midst of potential conflict can help the parties deal with the potential conflict.
Although this may seem obvious, every detail for which you require agreement should be in the document. Surprisingly, it was not until 2007 that Florida Statutes Section 61.079 made this a requirement. If you forgot to include something, want to change an item, or a new issue arises after the proper execution of the agreement, the parties would need to agree to a revised or modified agreement, and the document would need to be drafted and executed with the same formalities as the original agreement.
Although prenuptial/premarital agreements have many potential pitfalls, one that stands out is the need for full disclosure. You may wish to save the time and effort and not provide or require a full and complete disclosure of the assets at issue. You may feel uncomfortable insisting upon full and open disclosure while you are happily planning your wedding. Or you may feel like you are raining on a parade by providing your future spouse with in-depth documentation while you are tasting wedding cakes.
However, in order to preserve the validity of your prenuptial/premarital agreement, you must consider the following:
The Casto case (508 So. 2d 330) gives us guidelines for disclosure requirements in the event the validity of an agreement is challenged. While the Casto case dealt with a postnuptial agreement, it is established that the rules set forth in Casto regarding this type of challenge apply not only to postnuptial agreements, but also to prenuptial agreements. The Posner case (233 So. 2d 381) in which a prenuptial agreement was at issue, helps us understand via Del Vecchio (143 So. 2d 17), also a prenup case, that the rules for ascertaining the validity of a postnuptial agreement and a prenuptial agreement are the same, courtesy of the Weeks case (143 Fla. 686) in which one of the issues was a postnuptial agreement.
Per Casto, the challenging spouse must first prove that the agreement is unreasonable or unfair (another issue of which you need to be aware when drafting). After this step, the presumption of concealing assets can be rebutted by the spouse defending the agreement by showing “(a) a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and the income of the parties, or (b) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties.”
As you can see based on the language in Casto, option “A” leaves less room for disagreement.
In the period before a wedding, which can be an emotional time for either or both parties, logical thought is not usually taking the forefront. But, it’s no time to disregard proper disclosure. Be totally frank. Put everything into a spreadsheet. Make sure the other party understands your financial circumstances in detail. And then, make sure this disclosure step receives the same formalities as the agreement to come. The exchange and understanding should be in writing and executed by both parties.
In the future, you may be thanking your “self of the past” for taking the time to contemplate unexpected turns in the road.
I would be honored to be of service to you should you choose to have a prenuptial/premarital agreement. Please call Mara Law P.A. to schedule your consultation.
This article was prepared by Wendy A. Mara, Attorney at Law. Mrs. Mara practices in the Daytona Beach-Volusia County area. Like all members of the Finding Assisted Living family of associate businesses and professionals, she is highly qualified to provide expert advice in her area of professional practice. Finding Assisted Living and FindingAssistedLiving.com exist to make the transition to a senior lifestyle a safe, secure and satisfying experience. FAL is a source of impartial, professional and expert advice on life transition matters. Please call on us for help in matters ranging from locating an assisted living facility to finding expert advice on legal, tax, real estate or other life transition questions. You can contact us by clicking here or by calling 866-333-2657.