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Should a prenuptial agreement ever be made public?

A prenuptial agreement is sometimes one of the last things on the minds of some of the newly engaged in Florida. However, its importance should not be overlooked--it is an important agreement for those considering marriage. Not just for the ultra-rich or celebrities of this day and age anymore, a prenuptial agreement determines who gets what if a divorce were to occur.

Many individuals that complete a prenuptial agreement decide to keep the document private. There are plenty of reasons for doing so, namely that documents like these often have a great deal of information regarding an individual's assets as well as liabilities. Keeping it private can be crucial in the case that one of the individuals engages in risky financial behavior such as gambling or speculating in real estate. Prenups often include an agreement to hold one party harmless and indemnify the other from liabilities. This means that the other spouse will not be held responsible for debts that the other incurs.

However, it is important to note that such provisions do not always keep this spouse safe. Any and all liabilities that are incurred by an individual while married become community property--either spouse could be held liable. If a creditor is unaware of a prenup, he or she may choose to pursue both spouses. In this case, the spouse who did not incur the debt must then pursue their spouse for indemnification.

Thus, if a prenuptial agreement was recorded in the public record, the creditor in this hypothetical situation would be able to see that only one of the spouses is responsible for the debt. Once it is public record that no community property exists, there will therefore be an absence of community debts--it would not be reasonable for the creditor to be able to use community property rules. Individuals in Florida contemplating marriage in which a prenuptial agreement exists typically consult an experienced family law attorney to discuss this issue.

Source: The Huffington Post, "Prenuptial agreements/postnuptial agreements -- public or private?", Fred Silberberg, Sept. 8, 2015

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