Memorandum: Prenuptial Agreements

Is a prenuptial agreement valid and enforceable? The answer is, if done properly, absolutely. People make many mistakes, however when preparing a prenup. First of all, you can actually do a prenuptial agreement, or ante-nuptial agreement, prior to the marriage or after the marriage. People can negotiate their rights and how they want to dispose of them. Some tips to make sure the prenuptial agreement is enforceable are first, to make sure that the spouses do not sign it to close to the actual wedding event. It has been ruled in the past that a Wife signing a prenup agreement just days before the actual marriage was some form of duress and the prenuptial agreement was set aside. I would strongly suggest that you have the prenuptial agreement signed months ahead of time. 

It is also better for both parties’s to be represented by an attorney. This way, they cannot say something like misrepresentation or that the wife did not understand what she was signing etc. Make the language as clear as possible. Do not try to use big words and act like a smart person. Probably the biggest thing that is one of the most important things to do is to disclose everything. Do a financial affidavit, both parties, and attach to the signed agreement.  Make sure you do not forget anything. 

In Florida, you basically cannot pre-agree on custody or child support but virtually everything else you can agree on. You can agree on the separation of retirements, alimony, and property, basically anything. Even if the agreement is clearly not fair to one party, the courts will accept it provided the party has plenty of notice and disclosure and time to think about it.

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