Some couples choose to plan ahead for the potential of divorce, entering into a prenuptial agreement before marriage. The agreement often details how the couple will divide shared assets in the case of a divorce. Critics of prenuptial agreements argue that they ignore the interests of other parties. For example, a prenuptial agreement may try to assign all children to one spouse, but what happens if the other spouse would be better for the children? In the venerable Florida Supreme Court case Posner v. Posner, the court generalized that “in every divorce suit the state is a third party whose interests take precedence over the private interests of the spouses,” meaning that the court can overrule certain prenuptial arrangements that contradict public interest. More recent cases have clarified what the court can and can’t overrule in a prenup.

Courts have ruled that a clearly worded prenup may waive inheritance rights, including the “elective share” automatically available to a surviving spouse. These rights could include homestead, family allowance, or even the intestate share that might have gone to the spouse in the absence of a will.

Courts have also ruled that a clearly worded prenup may waive property ownership rights, including property that might otherwise be considered “marital property.” Courts have varied on the waiver of the appreciation of that property that occurs during the marriage, after the prenup was signed. The Florida Supreme Court has recently clarified in Hahamovitch v. Hahamovitch that sufficiently express wording can be sufficient to waive even the appreciation of assets obtained during the marriage.

Often the most important issue raised in a prenup agreement is alimony, the future support of one spouse, post-divorce, paid by the other spouse. Courts have held that a sufficiently specific prenup can waive the right to post-divorce alimony, or the right to seek changes in post-divorce alimony.

While a carefully drafted prenup may waive these and other rights, courts have held that some rights cannot be waived in this fashion. For example, a prenup cannot waive temporary support needed by a spouse to allow for fair litigation to occur in the divorce proceeding, because such waiver would interfere with public justice. The same is true for the temporary attorney’s fees required for an attorney to assist the spouse during litigation. Perhaps most importantly, a prenup may waive neither child support nor child custody. The “best interests of the child” standard will always apply in divorce proceedings involving children, trumping aspects of a prenup that go against what is best for the ex-couple’s children.

Attorneys must attend to many complicated details when they create prenup agreements or advise clients of their rights if the other spouse is asking them to sign a prenup agreement. In either case, consulting a skilled Family Law attorney like Kelvin Soto is highly advisable in any divorce proceeding involving a prenup.