Unfortunately, many individuals think they understand divorce law, without a demonstrated ability to discern what is actual law and what is myth. This blog post addresses some of the most common myths in divorce law, in an attempt to eradicate them once and for all.
Myth: Prenuptial Agreements Are Always Binding
Courts approach prenuptial agreements as contracts that are legally binding on the parties. However, this does not mean that every prenuptial agreement is upheld and followed in court. First, the prenuptial agreement must be valid under the law. To determine validity, courts look to the following factors:
- Is the prenuptial agreement in writing?
- Did both parties provide full disclosure about their assets as well as their debts?
- Did both parties sign
- the document freely and voluntarily?
- Are the terms so unbalanced as to be unconscionable?
- What benefit did the waiving party consider and is it commensurate with what they relinquished such that the agreement is fair and equitable?
Where the basic legal requirements of prenuptial agreements are not met, the agreement is not valid or legally enforceable. Additionally, spouses may not contractually negotiate contrary to law, such as waiving child support obligations, for example. Consequently, if the prenuptial agreement contains illegal agreements, at a minimum, these agreements will not be upheld.
Myth: Somebody Has to Be “At Fault” to Get a Divorce
Florida does provide for “grounds” for divorce, wherein one party is “at fault.” These grounds include:
- Abandonment or Desertion
- Domestic Abuse
- Mental Illness
- Substance Abuse
However, most couples choose to proceed with a no fault divorce, citing “irreconcilable differences.” Couples do not need any reason for a divorce beyond the irretrievable breakdown of the marriage.
Myth: Debts are Assigned to the Person Who Incurred Them, and the Assets are Split 50/50
Courts make determinations about who is responsible for debts, and who gets what assets, based on a whole host of factors. It is possible one spouse will become responsible for debts they did not incur. It is also possible one spouse will obtain possession of an asset they did not pay for. Decisions about the allocation of debts and assets can be complicated. Even where it makes sense to divide things 50/50, this may not be achievable down to the last candlestick and the last piece of property. Courts are charged with dividing assets and debts in a fair and equitable manner. What each judge considers “fair and equitable” may vary, of course.
If you are considering divorce, contact the Law Office of Eric C. Cheshire, P.A. With 30 years of family law experience, including litigation, mediation, and collaborative divorce, Eric Cheshire can provide you and your family with the legal advice and legal services you need. We offer confidential and in-depth consultations in a comfortable setting, directly with Attorney Cheshire. Call the office today to schedule your consultation at 561-655-8844. We look forward to discussing your unique situation, your priorities, and your family’s needs as well. Together we can address any preconceived notions you may have about divorce and the divorce process and create a plan of approach that suits your preferences.
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