LEGAL SPECIALIST LINE: HOW TO DECIDE WHETHER YOU NEED A PRENUPTIAL AGREEMENT

March 4, 2005

How to Decide Whether You Need a Prenuptial Agreement (And How to Proceed If You Do) By Elena B. Langan, Board Certified Marital and Family Lawyer

Couples who marry in Florida might not realize it but saying, "I do" means "I do intend to give you half of everything I earn from this day forward.” Couples often assume they will plan for financial issues after they are married – if they consider them at all – but too often they simply don’t get around to it. In the long run all you have from the wedding ceremony is a lot of memories and photographs; neither will provide you with a strong financial base and viable plan for managing the household.

A divorce court considers a marriage to be a partnership; couples also should view the relationship that way. While the partnership has many layers, emotional as well as financial, a sound financial plan and understanding of rights and responsibilities to each other as "partners" can ease some of the problems that arise from the financial aspects of marriage.

A prenuptial agreement is a written contract between two people who are preparing to marry that sets out terms for asset possession, future earnings, property control and potential division of assets if the marriage is eventually dissolved. You should consider entering into a prenuptial agreement if:

1. You are a serial monogamist, and have a string of ex-spouses.

2. You have children from a prior marriage or relationship who you want to protect financially. In Florida, if you die without a will your spouse at the time of death may claim up to one-third of your estate. This applies even in cases where a person dies with a will but the will does not make provisions for the current spouse.

3. You accumulated assets before your marriage that you want to protect in the event of a divorce. Even if these assets remain in your separate name throughout the marriage, if there is a divorce your spouse could claim entitlement to a portion of an asset if it increased in value during the marriage.

4. You are the beneficiary under any trust, especially if at some point you will receive a major distribution.

5. You are giving up a career, moving to a new location where you will not be employed, or giving up your entitlement to alimony or other support or benefits like health insurance from a former spouse by marrying again.

If any of the above describes your situation, you likely need a prenuptial agreement. Legal counsel can help you sort through provisions in a proposed prenup, but there are several obvious red flags you should watch for prior to signing:

- Make sure the agreement is given to you far enough in advance of the wedding date so there is time to negotiate any unreasonable provisions.

- Try not to use a lawyer recommended by your spouse-to-be. While an attorney is ethically bound to represent the best interests of her client, you may nost feel comfortable under the circumstances.

- Do not meet with your intended's attorney because you think you don’t need your own attorney. Again, that lawyer is ethically bound to represent his client's interests. He cannot explain to you what rights you are waiving that you would be entitled to in the event of marriage without an agreement.

The bottom line on prenuptial agreements: If the agreement is egregious or offensive don't sign it and don't get married. If this is your partner’s idea of how things should start out, then your circumstances will only go downhill from here.

Elena B. Langan is a Board Certified Marital and Family Lawyer in Miami, Florida. Certification is the highest level of recognition by The Florida Bar of the competency and experience of attorneys in the areas of law approved for certification by the Supreme Court of Florida. Contact her at 305-539-9033 or langane@langanlaw.net.

CONTACT: Lisa Garcia, APR
DATE: March 4, 2005
TELEPHONE: 850/561-5769