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Should I enter into a pre-nuptial agreement?

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  By Pierce Kelley

    L. K. of Fort White writes, “I am a 62-year-old man and I am considering getting remarried. Friends of mine tell me I should hire a lawyer to prepare a pre-nuptial agreement for me before doing so. What do you think I should do?
   Dear L. K.;
   My answer to that question is the type of answer you would expect from a good lawyer…it depends. It depends upon your financial situation and the financial situation of your bride-to-be. You should be aware of Florida Statute 61.075 which reads in pertinent part as follows:
(a)    Marital assets and liabilities include:
    2. The enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;
   In other words, if you have significant assets, including retirement accounts, stock
portfolios, and other such investments, you should know that your bride-to-be will likely benefit from any increase in value of those investments that occur during  the marriage if there is a commingling of assets.   Commingling means the mixing non-marital assets (or pre-marital assets) with assets acquired during the marriage. Your bride-to-be will also get a share of your non-marital or pre-marital assets if there are efforts on the part of either party (including you) to make your pre-marital assets or non-marital assets more valuable, which means something other than merely passive growth of the asset.
    So, L.K., if you have significant investments, or if your wife-to-be does, you should understand and appreciate the financial consequences of entering into a marriage before doing so. A pre-nuptial agreement is just that…an agreement entered into prior to a marriage by which the two parties agree on how the assets which each have at the time they marry will be divided in the event the marriage fails. Now, that isn’t too romantic and it can take a petal or two off the proverbial flower, but it is good, practical advice.
    You should also know that the general rule of thumb is that when a husband and wife divorce the marital assets are divided evenly. There are exceptions to that rule as well and if there is a good reason, formerly known as a “special equity,” the assets might be divided unevenly. If you don’t want your bride-to-be to share equally in any portion of what assets you have before you marry her, then you definitely would want a pre-nuptial agreement to protect yourself and your assets, in my humble opinion.
    I hope I have answered your question, L. K., and I suggest to you that if you any concerns about such matters, you should consult with an attorney before saying “I do.” Of course, the advice given you applies equally to a woman who has substantial assets. I wouldn’t want my readers to think there is a gender bias in this article. Good luck.
    Any readers with specific legal questions for this “Ask a Lawyer” column are invited to submit those questions to the editor of this newspaper who will pass it along to the attorney. If you need assistance with a mortgage foreclosure matter, or a landlord-tenant matter, or a consumer matter, such as an unfair and deceptive collection practice, or garnishment of wages, or other such things, and you cannot afford an attorney, call the Legal Services office closest to you, which provides free legal assistance to qualified individuals, or call the Florida Bar Referral service at 1-800-342-8011. I wish you good luck in obtaining access to our legal system, no matter what your income and asset level might be.


The foregoing was written by attorney Pierce Kelley, who is a member of the Florida Bar Association. The contents reflect his personal opinions and beliefs.