Prenuptial Agreements in Florida recently changed when the Florida Supreme Court affirmed the decision of a lower court that has attorneys baffled and scrambling to modify their standard pre-nuptial agreement language. In the case of Hooker v Hooker, the parties were married and prior to marrying they drafted and executed a pre-nup. Neither party says that the prenup was invalid for any reason - it was a good and proper pre-nup. It said that each would retain their own premarital property as non-marital assets including appreciation on those properties. There existed 2 properties purchased by the Husband. After a 23 year marriage while divorcing the Wife argued that both properties were marital because the Husband had intended them to be gift made to her as his Wife during the marriage. One of them the couple lived in together as a family in FL and it was deeded in Trust for the Husband. The other was titled in Husband's name alone and the family used it as a summer home in NY. The Husband paid for this home out of his separate money and upkeep of the property as well. The court found that despite titles and despite the pre-nup the family treated the properties as marital and therefore they were marital. The argument also included allegations that husband displayed the intent to gift the properties to the Wife during the marriage.
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").
Prenuptial agreements are agreements that two people enter into prior to marriage which attempts, usually successfully, to alter the distribution of property, award of alimony or award of attorney's fees in the event of a divorce. People enter into pre-nuptial agreements for many reasons, but the most common reasons are in order to ensure that pre-marital assets or business remain non-marital, or to ensure that property purchased during the marriage remains the property of just one spouse.
Advice to Women as to the Alimony Bill which will likely take effect July 1, 2013