MARLENE POSNER FALKEN, P.A. ATTORNEY AT LAW
SUITE 102
7471 WEST OAKLAND PARK BLVD.
LAUDERHILL, FLORIDA 33319
TELEPHONE: (954) 749-8400 FAX: (954) 749-8474

Prenuptial Agreements in general:

It is a contract, a 'meeting of the minds' of both parties as to how to divide up premarital and after marriage assets and debts. While it undoubtedly has a patina of pessimism about it, it equally undoubtedly creates a promise of protection for the person with many premarital assets. If properly formulated, a Prenuptial Agreement will overrule Florida statutory marital rights!

1) In the past, a couple stayed married until 'death do they part'; today, more and more individuals are entering second, third and fourth marriages. One or both of the parties has assets accumulated from a prior marriage and/or earnings from a separate job and/or business with retirement monies and/or an inheritance etc. One or both individuals may have children. One or both individuals may have sizable debt. Consequently, what will remain separate and apart from the marriage and what will be considered marital must be spelled out in a contract format.

2) It is a customized contract and can stay in effect as long as the couple stay married, or it can terminate according to the wishes of the parties.

3) To be valid, the Prenuptial Agreement must be in writing, both parties must make full and frank financial disclosure of all assets and debts, there should be no undue influence, and the Agreement can not be so one sided in one party's favor that one of the partners would become impoverished (unconscionable). *Failure to disclose financial facts constitutes fraud, and fraud invalidates all contracts, Prenuptial or otherwise. *Each party must have adequate time to decide what he or she wants included in the Agreement, and there has to be adequate time for each party to seek independent assistance from an attorney before signing the Agreement. However, one indication of both parties' understanding of the Agreement is evidenced by 'negotiations' and input by both parties. However, even if the Prenuptial Agreement is handed to the other party very close to the marriage date, a Judge looks at all the factors to prove undue influence (not just the close proximity to the wedding). Therefore, it may provide the protection sought even if undue influence is later claimed.

4) Without a Prenuptial Agreement, children from a previous marriage may not receive the inheritance their deceased, remarried parent intended. A current spouse is entitled to receive 1/3 of all property of the deceased spouse if the remaining spouse does not like what was left him/her in the Will ('elective share'). A Prenuptial Agreement can allow each partner to make provisions for the distribution of property without having to worry that the surviving spouse will back out of an oral promise to take a reduced share, or even nothing at all of the deceased spouse's property.