I don’t practice divorce or family law any longer, but I do draft prenuptial agreements. Effective October 2007 Florida adopted the Uniform Premarital Agreement Act as Florida Statute section 61.079. Unfortunately, prenuptials (a/k/a antenuptials) don’t prevent litigation or contentious divorces. They are often sources of litigation themselves as we can see from this article about Bill Murray’s divorce and prenuptial. Doreen Inkeles, a board certified family and marital law attorney, believes that the Act will make it more difficult and risky to challenge prenuptials. She wrote an article for the Florida Bar Journal that concluded with:
Combined with the apparently more stringent standards set forth in the UPAA, parties will have second thoughts about testing the enforceability of their agreements now that the Florida Supreme Court has recognized the enforceability of prevailing party attorneys’ fee provisions contained in prenuptial agreements which would place liability on the impecunious spouse for the already dominant spouse’s attorneys’ fees should the agreement be upheld.52 “Contracts can be dangerous to ones well-being. That is why they are kept away from children. Perhaps warning labels should be attached. In any event, contracts should be taken seriously.”53
Interestingly, the statute applies “only to proceedings under the Florida Family Law Rules of Procedure”, which govern divorces. Prenuptial agreements aren’t only in anticipation of divorce. Older couples frequently have them to cover what will happen in the event of death. For example, a prenuptial often contains provisions waiving spousal homestead rights and the elective share in the event of death. In fact, I recommend that any couple, especially older couples, with children from previous marriages, separate property, and a home have a prenuptial agreement.