Whether you elope or have a big wedding, chances are you’re concentrating on the emotional aspect of your upcoming marriage. That is, your wedding is a public declaration of commitment to the man or woman you love above all others.
As a family law attorney, I’d like to say love is all you need. But I believe the other aspect of marriage, that it is a legal contract governed by family law, should be recognized, too.
Some might say that it’s not at all romantic to recommend that engaged couples understand the legally binding union they are about to enter into.
However, I’d argue that being a fully aware individual is very romantic when you’re about to get married. It takes a great deal of maturity and love to sit down with your future spouse and discuss things like expectations for shared property, earnings and debt, and what happens if you have children.
Prenuptial Agreements
Instead of allowing the state to be the sole arbitrator in the event you got divorced, I recommend prenuptial agreements. These legal agreements are made before the wedding ceremony and specify what you want to happen if your marriage should end.
Don’t automatically discount getting a prenuptial agreement. Especially if you have a business, premarital assets or children from a previous marriage, it’s a smart thing to do.
I’ll discuss details about prenuptial agreements further below but first let’s talk about family law in Florida.
Marriage is fairly easy to enter into and there are few hoops to jump through. All you really have to do is get a marriage license and be married by someone like a pastor, judge or notary.
Divorce is another matter. The legal uncoupling of two spouses will occur in a court of law; it might be amiable or contentious, depending on the couple, but there will be papers to file, procedures to follow and appearances that must be made.
So here’s what I’m recommending. Get familiar with aspects of what could happen if you were to divorce.
Exploring this topic doesn’t mean you’re going to get divorced! Few couples go into marriage thinking they won’t make it and that’s a good thing. But you also don’t drive without your seatbelt buckled – at least I hope you don’t.
Broadly, here is some of what you should know:
After your wedding, according to Florida family law, the money you earn, the retirement funds you accrue and any property you buy will be a marital asset. In other words, it won’t belong just to you. It belongs equally to your spouse. The same principal holds in reverse. Your spouse’s earnings, retirement funds and property also are marital assets.
There are exceptions. Inherited money or property isn’t a marital asset and you won’t have to share it upon divorce. The same is true for any assets acquired before the marriage. There is a big IF, however. You can’t co-mingle these types of assets with marital accounts; if you do, they are absorbed into marital property.
An example is ownership of a house before the wedding. If it’s sold and the proceeds are used to buy another house with the new spouse, you now have a marital asset. If you divorce, you won’t automatically be entitled to more equity, even if your spouse didn’t put up a penny to buy it.
And then there’s debt. Did you know that any debt acquired in the marriage is going to belong to both of you, even if only one ran up the big credit card bill?
So talk with your fiancée about what would happen if your marriage dissolved. If you have children from a previous marriage, for instance, how should assets be distributed upon your death?
If you have a business, you need a prenuptial agreement. Please don’t be starry-eyed. In the event your business is incorporated, it will become a named party in the divorce suit if your spouse seeks company assets. Many of my clients who own businesses have become quite upset when they learn about this in the throes of divorce. They just didn’t know!
If one of you would expect alimony, you can decide how much it will be and for how long in a prenuptial agreement. The amount of child support or agreements about custody can’t be determined, however; that will still need to be set by state guidelines and a court-approved parenting agreement.
Be aware that you and your fiancé need to have your own attorneys when creating a prenuptial agreement. The court will want to know that no one was coerced into signing and having separate attorneys helps prove that. Also, create the agreement well before the wedding for the same reason.
There are many aspects of prenuptial agreements that you may not know. For instance, did you know that under the law, your 401k goes to your spouse after your death, regardless of any will you might write to the contrary? The only way to leave it to someone else, like your children from a previous marriage, is to have your spouse waive his or her rights. According to the law, this can be done only after the marriage. So I recommend putting a clause in a premarital agreement that the waiver will be signed after the wedding if you need the asset to go to someone else.
Another point to remember is that premarital agreements can be altered later. You can even stipulate what changes will occur once the marriage lasts a certain number of years.
The bottom line is don’t be surprised! Talk to an attorney about the ins and outs of a premarital agreement and how it might be right for you. At the Jeanne Coleman law offices, we have been writing premarital agreements for years and welcome the opportunity to help. Call us today for a consultation.
