Marital agreements and division of property

Question 1

Marital agreements (prenup)

Answer 1

A marital agreement is entered into before marriage, and in contemplation of marriage between prospective spouses.

Uniform premarital agreement act - prenuptial agreements may include the division of property, alimony, and attorneys fees, upon divorce, separation, or death. Premarital agreements, cannot determine child, support or custody.

Premarital agreements are subject to the statute of frauds, and must therefore be in writing. The effective date of the premarital agreement is the date of marriage.

Premarital agreement can only be amended, revoked, or abandoned by a writing, signed by the parties. 

Question 2

Premarital agreement requirements

Answer 2

• In writing
• Voluntarily executed
• No fraud, dress, coercion, or overreaching (courts will consider pressure to sign, lack of counsel, education, business, sophistication, Ej, House, and language proficiency)
• Must not be unconscionable at the time of execution (courts will consider disclosure of assets, lack of waiver of disclosure, lack of knowledge of undisclosed assets.)

Question 3

Post marital agreement

Answer 3

Post a marital agreements are made between spouses during marriage and can include separation agreement made and contemplation of divorce, which can be merged into a final settlement agreement. Post marital agreements can limit or preclude spousal support, but can never limits or preclude child support.

Post marital agreements are not subject to the statute of frauds, unless the subject of the agreement falls within the statute of frauds, such as the transfer of real property.

Question 4

Property division

Answer 4

Florida follows equitable distribution meaning courts will divide the marital property in a fair and equitable manner of divorce. This does not necessarily mean a 50-50 split. 50-50 is the starting point, but the court has broad discretion to adjust distribution of property.

Question 5

Marital property

Answer 5

Marital property as property acquired during marriage

This can include gifts between spouses, retirement, benefits, some personal injury, proceeds, goodwill of marital property, and equitably divided deaths.

Question 6

Non-marital property

Answer 6

Non-marital property as property acquired before marriage, and after marriage terminates

This can include passive appreciation of non-marital property, some personal injury proceeds, professional licenses, expectancy, Social Security, and equitably divided debts

Question 7

Required financial disclosures

Answer 7

Required financial disclosures include financial affidavit, three years of tax returns, paystub’s for three months of current income, and loan applications

Question 8

Factors regarding equitable distribution

Answer 8

• Length of marriage
• Economic circumstances of each spouse
• Contributions of each spouse during marriage
• Contributions to the education and career of another spouse
• Interruptions to one’s career education
• Interest of one spouse, retain an asset, such as a business or professional practice
• Contributions to the generation of income or incurring liabilities
• Intentional destruction of marital property
• retention of the marital residence for the children
• Any factors the court fines to be necessary and just

Question 9

Attorneys fees

Answer 9

Attorneys fees can be awarded to either spouse

Factors include: funds available or lack there of, duration of litigation, scope, and history of litigation, and harassment

Question 10

Collaborative law process

Answer 10

The collaborative law process allows for a collaborative divorce in which the parties work together to give the parties more control and reduce attorneys fees

The spouses usually share experts to reach a result