A prenuptial agreement is a good idea for people of all backgrounds. It helps protect you from your partner’s debts and keeps certain things you own as your own if you go through a divorce.
One thing to keep in mind is what happens to properties during your marriage. While a prenuptial agreement may state that you keep your preowned properties following a divorce, there are sometimes loopholes that can allow a spouse to seek properties or their values during settlement negotiations.
A perfect example of this is a recent case from the Florida Supreme Court. The court reviewed a case between a husband and wife that focused on two properties. The properties were in the couple’s prenuptial agreements, which stated that each person would keep a premarital property if the couple divorced. After approximately 23 years of marriage, the man’s wife insisted that the properties were marital assets and that they should be part of the divorce negotiations.
Why would she assert this claim? She believed her husband had donative intent. Donative intent, in this case, meant that the homes were used as residences, not keeping them separate. They raised a family in the homes and shared the homes as residencies for the entire marriage.
In the eyes of the Florida Supreme Court, that was enough to show that the properties should be considered to be joint marital properties. As such, they could be distributed equitably by Florida law.
If you have a prenuptial agreement, it’s a good idea to talk to your attorney about the actions that could invalidate it. You don’t want to be caught off-guard during a divorce.
Source: Florida Record, “Florida Supreme Court determines properties in divorce dispute had interspousal gift intent,” Tricia Erickson, April 19, 2017