What is a Prenuptial Agreement or Contract?***
Property agreements between engaged couples are nothing new. People have been making prenuptial agreements for thousands of years.
- Soon after the Prophet Mohammad's death, his great-granddaughter, Sukayna, who was married several times, at least once stipulated in writing that her husband was forbidden to disagree with her about anything.
- The Hebrew marriage contract, called the ketubah, is at least 2,000 years old. This contract was intended to protect women in case of divorce or widowhood by setting out the husband's financial obligation to the wife. This agreement also made it expensive for a husband to divorce his wife and so made marriages more stable.
- Dowries, often considered to be early prenuptial agreements, were mentioned in seventh century writings as a necessity.
- By the ninth century, in Europe, husbands were required to secure one-third of their property to their wives on their deaths as dower rights. Under English common law and in colonial America, "dower" was the share of a deceased husband's real estate to which his widow was entitled after his death.
- Wives sometimes brought dowries of money or land to the marriage. These arrangements were covered in an agreement drawn up before the marriage.
- In fifteenth century England, Edward IV reportedly had a prenuptial agreement with Eleanor Butler sometime between 1461 and 1464.
- Up until the 19th century in the United States, married women could not own property. This began to change when New York State passed the Married Women's Property Act of 1848. Before then, women needed marriage contracts to guarantee them property in case of divorce or the husband's death.
Marriage as an economic vehicle
Historically, before the advent of modern "romance," parents of the bride and groom negotiated a financial agreement on the new couple's behalf as marriage was often exclusively used as a means of distributing wealth and inheritance, making marriage choice more about the exchange of economic capital, and less about romantic love. Although economic independence was the main prerequisite for marriage, the reasons people married were heavily entrenched in the exchange of economic capital between families. Dowries and marriage as an economic exchange of capital remained the norm until the advent of the industrial revolution, marking the move from an agrarian to an industrial economy.
Marriage and romantic love
The second major force for "modern" marriage can be dated to 1740 when a flood of novels poured on to the market with romantic love as their theme. Hardy, Jonathan-Gathorne, Love, Sex, Marriage and Divorce. London: Jonathan Cape, 1981, p. 129. The transformation of the marital relationship, however, could not come from literature alone. With families clustering in cities to work in factories, economic exchange became less important as there was less land or inheritance to bequeath to future generations. As people moved from a peasant economy, and, therefore, the land, the familial exchange of economic capital became irrelevant as the land itself became less important.
The musical, Fiddler on the Roof, set in Tsarist Russia in 1905, and based on Tevye and his Daughters (or Tevye the Milkman) and other tales by Sholem Aleichem, best captures the change in marriage choices and prenuptial contracts affected by the advent of the industrial revolution and the rise of "romance" in early nineteenth century Europe. The story centers on Tevye, a poor milkman, the father of five daughters, and his attempts to maintain his family and religious traditions while outside influences encroach upon their lives. He must cope with the strong-willed actions of his three older daughters, as each one's choice of a husband moves further away from the customs of her faith. In the end, after much soul searching, Tevye relents to the marriage of Perchik and his daughter Hodel. The world is changing, and he must change with it. Tevye explains these events to his astonished wife Golde. "Love," he says, "it's the new style."
This may be the first popularized example of the change in how prenuptial agreements were made. Where historically marriage contracts were negotiated by parents, the modern prenuptial allows couples themselves to assure the safety of their economic assets.
Destructive to marriage
Although the nature of marriage contracts may have changed, there was little room in the United States for prenuptial contracts. Until the 1960s, American courts refused, on public policy grounds, to enforce prenuptial agreements designed to apportion property in the event of divorce as the enforcement of such contracts was viewed as being deleterious to the constancy of marriage.
That changed in 1968, when a Florida appellate decision followed precedent in invalidating a prenuptial agreement, but a dissenting judge indicated that the contract should have been upheld as "not in contemplation of divorce, but in contemplation of marriage." Posner v. Posner, 206 So.2d 416, 420 (Fla. Dist. Ct. App. 1968) (Swann, J. dissenting), rev'd, 233 So. 2d 381 (Fla. 1970). On appeal, the Florida Supreme Court agreed with the lower court dissent and held that prenuptial agreements settling alimony and property rights upon divorce are not void as contrary to public policy. Thus, the era of prenuptial agreements began.
From Posner on, prenuptial agreements have increasingly entered the awareness of marrying couples as the prevalence of divorce and remarriage has prompted both men and women to plan more carefully, realistically, and independently for their economic futures. In addition, women increasingly bring tangible assets to the marriage as a result of both their rising participation in the labor force and the older age at which they are likely to marry for the first time. These women use prenuptial agreements to protect their individually earned and held assets.
Nevertheless, despite increasing public awareness, research suggests that most people do not see themselves as needing, or benefitting from, prenuptial agreements. An online study by Harris Interactive, on behalf of Lawyers.com, reports that while more than one-fourth (28%) of Americans say that prenuptial agreements make smart financial sense for anyone getting married, another fourth (25%) think that such agreements are only for the rich and famous, not "regular" people. A romantic one in five (19%) believes in true love and feels that a prenuptial agreement is never needed when the two people involved really love each other, and another 15% are convinced that a prenuptial agreement dooms a marriage to failure from the start.
Once the romance has ended, however, divorced respondents feel differently: one-half (49%) of divorced Americans believe that prenuptial agreements make financial sense, whereas just one in five (21%) still married Americans feel the same. Although one in ten (9%) unmarried Americans say they would never get married/remarried without a prenuptial contract, only one percent (1%) of Americans currently have a prenuptial agreement with their spouse/fiancé.
The reasons for the underutilization of prenuptial agreements can be found in two studies about attitudes towards marriage and prenuptial agreements. In the first, a study of marriage license applicants and law students, psychologists surveyed applicants about their knowledge of divorce statutes, of the demographics of divorce, and expectations for their own marriage. Baker, L. A., & Emery, R. E., "When every relationship is above average: Perceptions and expectations of divorce at the time of marriage," Law and Human Behavior, 17(4), 439-50 (1993).
Both groups had largely incorrect perceptions of the legal terms of the marriage contract as embodied in divorce statutes, but they had relatively accurate, if sometimes optimistic, perceptions of both the likelihood and the effects of divorce in the population at large. These same individuals expressed thoroughly idealistic expectations about both the longevity of their own marriages and the consequences should they personally be divorced.
In a second study, "Why Are There So Few Prenuptial Agreements?" Harvard Law School John M. Olin Center for Law, Economics and Business Discussion Paper Series. Paper 436 (2003). http://lsr.nellco.org/harvard_olin/436, Heather Mahar found that in addition to what psychologists refer to as "optimism bias" (optimism in the face of reality, a well-established illusion that one's future is rosier than it really will be), respondents felt that requesting a prenuptial agreement demonstrated uncertainty about the success of the marriage. Respondents recognized that the national rate of divorce was around 50 percent, yet they believed that their own chance of divorce was only 11 percent. Sixty-two percent of respondents believed that requesting a prenuptial agreement reflects uncertainty about the success of the marriage. That is, individuals who believe that they are significantly less likely than the average person to be divorced are less likely to consider requesting a prenuptial agreement.
Why might individuals underestimate the expected value of prenuptial agreements? One possibility, offered by Mahar, is that individuals might not know the terms of marriage as embodied in the divorce law of their state. In fact, many couples do not realize that when they obtain a marriage license, they are consenting to a set of laws set out in their state's divorce statute.
Indeed, said Mahar:
[W]hen couples that had recently applied for a marriage license were asked how marriage affects their rights regarding child custody, alimony, child support, and property settlement, respondents correctly identified the current law only slightly more often than random chance would predict. Since so many couples seem to misperceive the state-provided law of divorce, their impression of the potential benefits of premarital contracting must be similarly flawed.
As in the Baker and Emery study, optimism bias was evident in Mahar's sample. Although both law students and the general population correctly estimated the national divorce rate to be approximately 50 percent, both groups believed that their marriages were significantly more likely to succeed than average. Specifically, law students believed that they had, on average, a 16 percent chance of divorce, whereas the general population believed there was only a 10 percent chance that their marriage would end in divorce. Perhaps even more striking is the fact that over half of the general population and almost a quarter of the law student population estimated that their chance of divorce was zero percent. Finally, more than half of law students and almost two thirds of the general population believed that divorce was more likely than otherwise if their fiancé(e) asked them to sign a prenuptial agreement.
What do people object to?
Given that almost half of all marriages end in divorce (what one lawyer called a "never ending inventory of future clients"), is it possible that a prenuptial agreement would save the acrimony and disappointment for that half of the optimists whose marriage ends in divorce? Some would argue that prenuptial agreements are the rational solution to avoiding the problems facing divorcing couples. Bix, Brian, "Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think about Marriage," William and Mary Law Review, Vol. 40 (1998). Others believe that prenuptial agreements perpetuate a gender bias disfavoring women. Guggenheimer, Leah A., "Modest Proposal: The Feminomics of Drafting Premarital Agreements," Spring 1996, 17 Women's Rights Law Reporter, 147.
Less caustic critics might assert that prenuptial agreements are unromantic, that asking for a prenuptial agreement reflects a lack of trust, or that asking for a prenuptial agreement shows the lack of a life-time commitment to one another (after all, wedding vows typically pledge "until death do us part").
The less romantic and more emotionally charged reasons naysayers might put forth in their case against prenuptial agreements is that a partner asking for a prenuptial agreement doesn't trust the other partner to be fair and reasonable in the event of a divorce, that the asking partner is seeking emotional control through financial superiority, that the asking partner doesn't have confidence that the other party could or would rationally discuss and work out conflict, or just plain that she (or he) just doesn't think the marriage will last.
A death knell for romance?
Criticism based on distrust, romance, or gender politics aside, there are many psychologically healthy and practical reasons for signing a prenuptial agreement. First and foremost is that for reasonable and responsible partners-to-be, a discussion and the negotiation of prenuptial agreement terms can serve to strengthen a relationship by starting on a footing of open and honest communication. Asking one's intended to engage in a frank discussion about their future together can be an opportunity for an open dialogue in which each partner can express his or her thoughts and feelings about a wide variety of issues that make up a marriage. This sort of discussion doesn't mean that one party is anticipating divorce. It does mean that one party (and hopefully both) are willing to discuss current and future plans about the distribution of assets, so that if they later divorce they can do so without the expense and acrimony of a legal battle over assets and finances accumulated during the marriage. After all, 50 percent of marriages do end in divorce.
Psychologically healthy people should be willing to discuss personal and financial matters, such as family ties and inheritance, the financial well-being of children from a previous marriage, the disposition and use of personal and business assets accumulated before the marriage, and other emotionally important expectations. Prenuptial agreements force an engaged couple to discuss thoroughly and honestly issues such as money and property, topics that some couples might avoid. These discussions can help build a better understanding of their assets and financial intentions, which can increase the chances of a peaceful and successful marriage.
If a divorce does happen, a prenuptial agreement may make the divorce easier and/or less likely by helping to strengthen the marital relationship. Discussions about prenuptial agreements can provide a more realistic view of what life after a divorce would be like. Likewise, the process of working out the terms of a prenuptial agreement can benefit both partners by helping them to understand the level of support either partner could anticipate. The less financially secure partner can realistically consider the possibilities of divorce and be assured that, regardless of the state of the marriage, she (or he) will not be financially disadvantaged. The more financially secure partner won't need to worry about losing his (or her) assets in the event that the marriage fails. In sum, the request for a prenuptial agreement can become an opportunity for a couple to engage in planning for their future in an open and honest manner.
Do You Need A Pre-nuptial Agreement?
A prenuptial agreement - also referred to as an antenuptial agreement, a premarital agreement, or simply as a prenup - is a contract entered into by a man and woman in anticipation of their marriage. The premarital contracts formed through these agreements usually outline the division of assets and debts and form and amount of support, if any, that each party will be entitled to in the event of divorce or death. Although prenuptial agreements can be binding on issues of division of property, spousal support and alimony, prenuptial agreements are generally not binding on issues of child custody and, on occasion, child support.
A man or woman who wants a future spouse to sign a pre-nuptial agreement often has something he or she wants to protect from the Florida equitable distribution process in the event the marriage fails. One or both potential spouses may want to avoid the risk of a major loss of assets, income or a family business in the event of a divorce. Pre nuptial agreements are also used by spouses marrying for a second or third time also might desire to make sure that certain assets or personal belongings are passed on to the children or grandchildren of prior marriages rather than to a current spouse.
There are times when a premarital agreement may not be necessary, but some sound premarital advice from a lawyer could be beneficial to the future spouses. Divorce statistics indicate that the divorce rate in the United States for first time marriages approaches the fifty percent mark. In cases of remarriage after divorce, the rate of divorce increases above the fifty percent statistic with each subsequent marriage. Marriage is a contract that involves many financial decisions along the way. Our Miami prenuptial contract attorneys can help guide you to make sound financial decisions during your marriage contract. Contact us before you tie the knot!
A Word of Warning regarding Online Sample Prenuptial Agreement Forms!
There are many prenuptial agreement forms and prenuptial agreement samples online on the Internet. These online prenup sample forms may not be written by Florida prenup agreement attorneys (or any attorneys for that matter) and may not adequately protect the legal rights of the engaged couple. If you have assets or income significant enough to believe that a pre nuptial agreement is necessary to protect your financial future, you should consult with an experienced Florida or Miami prenup attorney who will provide you with accurate legal advice on Florida divorce and family laws.
Florida Postnuptial Agreements
Besides prenuptial agreements, there are three other types of marital agreements, postnuptial agreements, Marriage Settlement Agreements and Marital Separation Agreements. Postnuptial agreements, also known as post-marital agreements, are agreements entered into after a marriage has taken place but before the parties seek to end their marriage. As with premarital agreements, most individuals entering into a postnuptial agreement are generally seeking to protect assets or income in the event of divorce or death.
Florida Marriage Settlement Agreements
Marriage Settlement Agreements (sometimes also called Property Settlement Agreements or Marital Separation Agreements) are contracts written that resolve by agreement the division of marital assets and marital debt, payment of support, child custody or any additional issues that arise during the course of a divorce proceeding. Before either spouse signs a Marriage Settlement Agreement, the Agreement should be reviewed by their own independent Florida family law attorney. Both spouses should not utilize one Florida family law attorney to draft a Marriage Settlement Agreement and should not presume that one attorney will look out for both spouses' interests.
Validity of Florida Marital Settlement, Prenuptial and Postnuptial Agreements
In Florida, Marriage Settlement Agreements as well as prenuptial and postnuptial agreements are considered the same as any other contract parties may enter into and, therefore, are presumed to be valid and enforceable. This presumption can be overcome only if evidence is presented by the spouse seeking to set aside the agreement that the agreement was entered into under fraud, deceit, duress, coercion, misrepresentation, or overreaching or that there was not a full and fair disclosure of assets and liabilities of each spouse at the time of the agreement, and a waiver of the disclosure was not included in the agreement. Florida has adopted the Uniform Premarital Agreement Act to specifically address issues involving interpretation and enforcement of prenuptial agreements. Spouses and future spouses should be aware that marriage settlement, premarital and postnuptial agreements are valid and enforceable even if one spouse or prospective spouse does not retain an attorney to review the agreement before they sign the agreement. Marriage settlement agreement forms retrieved from the Internet are only as good and enforceable as the author who wrote them, who may or may not be a licensed Florida attorney with experience in the family law field.
After a valid Marriage Settlement Agreement, prenuptial agreement or postnuptial agreement is entered by the parties, sometimes, the question of impact on any changes in the Florida laws arises. The answer is that the agreement is interpreted using the law in existence at the time of drafting the agreement, and any subsequent changes are not applicable unless the change in the law is a remedial measure intended to apply retroactively.
Contact Our Miami Prenuptial and Postnuptial Agreement Attorneys
Our Miami prenuptial attorneys can negotiate and draft your agreement or review and revise your current agreement. If our Dade County prenuptial lawyers draft the agreement for you, the first thing we will do is compile a list of your assets. Next, our Florida prenuptial lawyers will discuss your goals for the agreement. Lastly, our Miami prenuptial attorneys will draft a prenuptial agreement that expresses your goals and present it to your future spouse for review.
To avoid any potential argument that your future spouse was coerced into signing a prenuptial agreement on the eve of his or her wedding day, you should start the process of negotiating and drafting the prenuptial agreement as soon as you become engaged or, at the latest, one month before the wedding.
Contact our Miami prenuptial agreement attorneys at 307-329-2560, or e-mail us to schedule an appointment to discuss your Dade County, Broward County or Monroe County prenuptial or postnuptial issue. Our Miami prenuptial lawyers accept family law cases in Miami-Dade County, Broward County and Monroe County.
Our Miami prenuptial agreement law office is open Monday through Friday from 8:00 a.m. until 5:00 p.m. and weekends and evenings by appointment. Consultations are available in person at our downtown Miami law office and at several meeting locations throughout Dade and Broward Counties including Lincoln Road in Miami Beach, Galiano Street in Coral Gables, West Country Club Drive in Aventura, Hollywood Boulevard in Hollywood and in the Homestead area. Appointments are also available by telephone and via Skype internet video chat.
***Our staff would like to acknowledge Dr. Jerome Poliacoff as the author of the "What is a Prenuptial Agreement or Contract" section of this page. Dr. Jerome Poliacoff is a child, adolescent and adult psychologist licensed in the state of Florida since 1984.
A transplanted new Yorker he earned his Masters and Doctoral degrees from the University of Miami. His clinical training included pre and post doctoral internships at the Children's Psychiatric Centers in Miami, Florida.
He has been a staff consultant to the Northwest Dade Community Mental Health Center where he was responsible for the pre-doctoral internship training seminar in child assessment; and on the Staff of Charter Hospital of Miami where he served as co-director of the adult inpatient unit, responsible for the group psychotherapy programs.
In addition to being a sought after child and adult therapist he is a frequent consulting and testifying expert in both Family and Dependency courts in Florida's Eleventh and Seventeenth Judicial Circuits.
His forensic expertise includes serving as an expert in cases involving (a) discrimination and harassment claims in Federal employment law cases, and (b) as an expert in the assessment and defense of tort claims for emotional damages in cases involving children, adolescents and adults, and (c) as an expert in immigration law cases involving claims under the Violence Against Women Act, and in asylum appeals .
As an external review consultant he is a Level III third party reviewer of pediatric patient insurance appeals for National Medical Review of Pennsylvania.
Dr. Poliacoff has presented as a lecturer before numerous schools and parent groups on matters related to children and their development. And, he has lectured widely to legal audiences. His articles have been published in Bar journals on topics including
- Alternative Approaches to Litigation,
- Examining the Premise of Equal Timesharing,
- Psychologists' Dual Role Conflicts,
- Mental Examinations in Federal Employment Litigation, Parental Alienation: Frye v Gardner in Florida Courts., and most recently
- What Does Love Have to Do With It? The Psychology of Prenuptial Agreements
Dr. Poliacoff maintains a private practice in Coral Gables, across from the University of Miami, where his time is spent writing and providing both clinical and forensic services.