Posted by Nydia Streets of Streets Law in Florida Prenuptial Agreements

A Florida prenuptial agreement can protect current and future assets if worded correctly. If parties entering a marriage want to ensure that their property remains separate, specific language must be included about this. Enforcement of the language of a prenuptial agreement was an issue in the case Johnston v. Johnston, 2D2021-1457 (Fla. 2d DCA July 10, 2024).

In this divorce case, the parties disputed interest in properties acquired during the marriage, partially with the former husband’s separate money. The parties entered a prenuptial agreement which defined former husband’s separate property as

(e) the [Bayshore] residence . . . and any future residence purchased with the proceeds from the sale of such property and any other real property purchased with [Former] Husband's separate property or in [Former] Husband's sole name . . . , along with any equity in same (provided that (1) all pieces of real property jointly owned at the time a petition for dissolution for marriage or similar action is filed, unless separately titled, shall constitute marital property subject to equitable distribution and (2) in the event it is [Former] Husband's intention to keep a property separate but law requires [Former] Wife's name be added to same, the parties shall both execute a written document evidencing their clear intent)[.]

. . . .

(h) any replacements of separate property;

(i) any property exchanged for separate property; [and]

(j) any property purchased with separate funds or with proceeds from the sale of separate property; . . . .

The trial court originally awarded the former husband his portion of non-marital money put toward the purchase of two properties titled in both spouses’ names. Both parties filed a motion for reconsideration, and the trial court determined the former husband was not entitled to such credit since the properties were jointly-titled. The former husband appealed.

The appellate court held “The Prenuptial Agreement limited the marital estate to property obtained ‘during the marriage that is clearly and directly traceable to [income defined as marital property by this Agreement]’ and ‘any other marital property expressly provided for by this Agreement.’ Paragraph 5.1(e) is clear, though: ‘[A]ll pieces of real property jointly owned at the time a petition for dissolution for marriage or similar action is filed, unless separately titled, shall constitute marital property subject to equitable distribution.’ If Former Husband intended ‘to keep a property separate but law requires [Former] Wife's name be added to same, the parties shall both execute a written document evidencing their clear intent.’ The Estrella and Hatcher Road Properties were jointly owned and titled when the Former Husband sued for divorce. The parties did not execute a document reflecting Former Husband's intent to keep his contributions separate.” The court concluded “Despite his best attempt, the Prenuptial Agreement does not give Former Husband a special equity in his nonmartial contributions to buy the marital properties.”

Schedule your meeting with a Miami prenuptial agreement lawyer to determine how the law may apply to the facts of your case.