In our last post, we began discussing the basic approach to property division in Florida. As we noted, Florida utilizes an approach called "equitable distribution," which aims to ensure a fair distribution of property between parties. Judges are empowered to consider all relevant circumstances in making a fair distribution of property, which means the outcome may not be predictable for couples.
It is important to point out that the rules of property division as laid out in state law can be replaced by an alternative set of rules laid out in advance by a couple in a prenuptial agreement. In this way, the agreement ends up trumping the default rules of property division, thus giving couples the opportunity to have more control over the terms of their divorce.
Under Florida state law, there are limitations on the types of things a prenuptial agreement can address. In particular, prenups may not include provisions which adversely affect a child's right to support, nor may they include provisions impacting custody and visitation rights.
Prenuptial agreements can, however, deal with a wide variety of rights pertaining to property ownership, as well as spousal support rights, the establishment of a will or trust, and the choice of law that will govern the agreement. While most people tend to think of prenuptial agreements as only dealing with the terms of a divorce, such agreements can also address how property is to be divided upon separation or death as well, or "the occurrence or nonoccurrence of any other event." That's leaves a lot of possibilities open for couples.
In a future post, we'll take a look at some of the requirements for setting up a valid prenuptial agreement.
Source: The Florida Bar Journal, "Relationship Dissolution Planning, Part 1: Nuptial Agreements," November 2006, Vol. 80, 10.