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Prenuptial Agreements Part II

Many people seek to eliminate alimony in prenuptial agreements and many pre-nuptial agreement do state that no alimony will be owed and or that bother parties waive any right to alimony. That said, the law is still evolving in this area and there is case law indicating that a provision limiting alimony is subject to judicial review. This means that a Judge may award alimony despite any agreement stating otherwise. The cases which have discussed this are Posner v. Posner, 233 So.2d 381, 385-86 (Fla.1970) ("Posner I ") (an antenuptial agreement settling alimony rights is subject to increase or decrease under changed conditions as provided in section 61.14, Florida Statutes, as the parties are assumed to have known of the existence of the statute when they made their agreement); Posner v. Posner, 257 So.2d 530, 534 (Fla.1972) ("Posner II ") ("a change in circumstances of the party since the date of the agreement can be considered by the [Court] in modification of support and alimony provided for in an [pre-nuptial] agreement").

My interpretation of these cases leads me to believe that the Court are less likely to modify if a reasonable number has been provided. Because of this, I recommend that a reasonable alimony provision be included. That number can be based upon the number of years married. For example, I often recommend the following type of provision (not necessarily these exact numbers):

· 0-10 years - no alimony

· 10-15 years - 15% of annual income for a duration of ½ length of the marriage.

· 15-20 years - 20% of annual income for a duration of ½ length of the marriage.

· 20+ years - 30% of annual income for a duration of ½ length of the marriage.

Another provision commonly included in prenuptial agreement is one limiting attorney's fees. Under Florida law, absent a prenuptial agreement, basis attorney's fees on a concept of need and ability to pay. Meaning if one spouse has a need and the other has an ability to pay fees may be awarded. You can read my blog article for more information on this, located at /blog/2014/10/attorneys-fees-in-family-law-cases.shtml.

Florida Courts have found that "[i]t is well settled in Florida that a spouse's obligation to provide spousal support during the marriage, including the responsibility for attorney's fees and costs, may not be contracted away by prenuptial agreements." Lashkajani v. Lashkajani, 911 So. 2d 1154, 1156 (Fla. 2005)

However, there is a growing trend towards allowing parties to contract to the terms of their choice in marriage and divorce and because of this, including such a provision cannot hurt.

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