Using a Prenuptial Agreement to Protect Your Retirement Accounts

There are two things you need to keep in mind. First of all, any value added to your retirement accounts during the marriage is considered property of the marriage, not your personal property. Second, Florida operates on a system of equitable distribution when dividing marital assets. This means that marital assets are divided in accordance with what is fair to both parties—which is not necessarily an even split. If you’re worried about what’s going to happen to the retirement accounts you’ve worked so hard for throughout the course of your life, you may want to consider a pre- or postnuptial agreement. With an agreement in place, you can prevent your spouse from getting any of your retirement funds. In this article, we’ll discuss how that works.

How can a prenup protect my retirement accounts? 

If you want to protect your retirement accounts or any piece of property, for that matter, a prenuptial or postnuptial agreement is the way to do it. A prenuptial agreement can explicitly state that the retirement accounts remain your separate property during your divorce. This prevents them from being divided in accordance with Florida’s rules of equitable distribution. Without the agreement, your retirement accounts (at least the value accrued during the marriage) are considered property of the marital estate and subject to equitable distribution.

How enforceable is a prenuptial agreement in Florida? 

Florida treats prenuptial agreements the same way it would treat any contract. The contract is broadly enforceable so long as it meets a certain standard. In terms of prenuptial agreements, you should have:

• Full disclosure – Both parties are required to provide a complete and honest disclosure of their income, assets, and liabilities prior to signing the prenup. This includes retirement accounts. Failure of one party to make full disclosure could potentially void the agreement.
• Independent legal counsel – While not strictly a requirement, it is best if each spouse has their own attorney to look over the prenuptial agreement while it is being written. This ensures that the agreement protects the individual interests of both parties.

• Unambiguous language – The prenup should include very clear and specific language that is not open to interpretation. Ambiguous provisions within the prenuptial agreement can give rise to future disagreements and squabbles before the court.

In addition, Florida law requires that all prenuptial agreements be in writing, signed by both parties, and not in violation of public policy. Prenuptial agreements can be revisited while you are still married. We recommend that our clients periodically review and update their prenuptial agreement to reflect major changes in their financial circumstances.

Talk to a Tampa, FL, Family Law Attorney Today 

Westchase Law, P.A. represents the interests of couples who want to draft a prenuptial agreement. Call our Tampa family lawyers today to schedule an appointment, and we can begin discussing your next steps right away.