When people think about prenuptial agreements, they often imagine protecting assets—homes, businesses, investments, and inheritances. Yet for many couples, the greater concern is debt. Student loans, credit cards, business liabilities, and mortgages can all create long-term financial strain. Entering a marriage with significant debt—whether it belongs to one person or both—can create risks that need to be addressed before walking down the aisle.
An Orlando prenuptial agreement lawyer can help couples create a clear, enforceable plan for how debt will be managed during the marriage and divided if it ends. Without such an agreement, Florida’s default rules can leave one spouse unexpectedly responsible for the other’s financial obligations.
Why Debt is Just as Important as Assets in a Prenuptial Agreement
In Florida, marital debt is treated much like marital property. If the debt is incurred during the marriage, it is generally considered a shared responsibility—even if it is in only one spouse’s name. This means:
- You may end up sharing responsibility for debts you did not help create.
- Creditors may be able to pursue marital assets for repayment.
- Disputes over debt allocation can make divorce more costly and contentious.
An Orlando prenuptial agreement lawyer will ensure your agreement deals with debt as thoroughly as it does with assets.
Common Types of Debt to Address
When creating a prenuptial agreement for couples with significant debt, it is important to address all forms of liabilities, including:
- Student loans: Medical school, law school, or graduate school loans often reach six figures.
- Credit card balances: High-interest debt can accumulate quickly, especially if one spouse is a business owner or entrepreneur.
- Mortgages: Primary residence mortgages, second homes, and investment property loans.
- Business debt: Loans, lines of credit, or vendor obligations tied to a company owned by one spouse.
- Vehicle loans: Financing for cars, boats, or recreational vehicles.
- Personal loans: Loans from banks, family members, or friends.
- Tax obligations: Federal, state, or local taxes owed.
Your agreement should identify each debt and specify how it will be treated both during the marriage and in divorce.
Assigning Responsibility for Pre-Marital Debt
One of the clearest uses of a prenuptial agreement is to protect a spouse from the other’s pre-marital debt. The agreement can:
- Assign full responsibility for the debt to the spouse who incurred it.
- Prohibit the use of marital funds to repay pre-marital debt without written consent.
- Clarify that paying down the debt with marital funds will not create an ownership interest or repayment right.
An Orlando prenuptial agreement lawyer will draft this language precisely to prevent ambiguity or later disputes.
Handling Debt Incurred During the Marriage
Debt acquired after the wedding is often considered marital, even if it is in one spouse’s name. A prenuptial agreement can change that default rule by:
- Classifying certain types of debt as separate even if incurred during the marriage.
- Limiting the amount of debt that can be incurred without the other spouse’s consent.
- Establishing joint responsibility for debts only when both parties agree in writing.
Business Debt in a Prenuptial Agreement
If one spouse owns a business, the business’s debt can easily become a marital liability without protection. Your prenuptial agreement can:
- Assign responsibility for all business debt solely to the owner spouse.
- Keep marital assets separate from business obligations.
- Limit the non-owner spouse’s liability for business loans or vendor contracts.
An Orlando prenuptial agreement lawyer will also ensure the agreement aligns with business contracts and operating agreements.
Protecting Credit Scores
Debt can impact more than financial liability—it can damage credit scores. Your agreement can:
- Prohibit the use of joint credit cards without consent.
- Require notice before opening new lines of credit.
- Set rules for monitoring and maintaining individual credit reports.
These measures protect both parties from the long-term consequences of poor credit.
Preventing Commingling of Debt
Commingling debt is similar to commingling assets—once combined, it becomes harder to separate. Examples include:
- Refinancing a pre-marital mortgage in both names.
- Consolidating one spouse’s student loans into a joint loan.
- Using marital funds to pay down one spouse’s separate debt without documentation.
Your prenuptial agreement can prohibit these actions unless both parties agree in writing.
Reimbursement Provisions
Sometimes, it makes sense for marital funds to be used for one spouse’s separate debt—such as paying off high-interest credit cards to save on interest payments. If this happens, your agreement can:
- Provide for reimbursement to the marital estate.
- Outline the timing and method of repayment.
- Protect the spouse making the payment from losing their contribution.
Tax Debts and Obligations
Tax issues can be particularly tricky in marriage. Your agreement should address:
- Responsibility for pre-marital tax liabilities.
- How joint tax returns will be filed.
- Who will be responsible for any tax debt arising from joint returns.
An Orlando prenuptial agreement lawyer can include protective language that prevents one spouse from being blindsided by the other’s tax problems.
Addressing Debt in Divorce
Your agreement should clearly state how debt will be divided if the marriage ends. Options include:
- Each spouse keeping the debt in their own name.
- Dividing debt proportionally based on income or other factors.
- Using marital assets to pay off debt before division of property.
Protecting Against Liability for the Other Spouse’s Actions
In some cases, one spouse may take on debt without the other’s knowledge. Your prenuptial agreement can:
- Limit liability for unauthorized debts.
- Require notification before new debts are incurred.
- Define what constitutes an “authorized” debt.
Coordinating with Estate Planning
Debt provisions in your prenuptial agreement should be consistent with your estate plan. For example:
- Avoid leaving your spouse responsible for debt tied to inherited property they receive.
- Coordinate the repayment of debts with asset distribution in your will or trust.
Disclosure Requirements
For your prenuptial agreement to be enforceable in Florida, both parties must make a full and fair disclosure of their debts and assets. This includes:
- Providing current account statements.
- Disclosing all loans, lines of credit, and liabilities.
- Listing all contingent debts or potential obligations.
An Orlando prenuptial agreement lawyer will guide you through this process to ensure enforceability.
Updating Your Agreement
Debt situations can change dramatically over the course of a marriage. You may:
- Pay off existing debt.
- Take on new debt for business or personal purposes.
- Refinance loans.
Your prenuptial agreement can be updated through a postnuptial agreement to reflect these changes.
Enforceability in Florida
To be enforceable, your prenuptial agreement must:
- Be in writing and signed before the wedding.
- Be entered into voluntarily, without coercion.
- Include full and fair disclosure of assets and debts unless waived in writing.
- Avoid terms that are unconscionable or contrary to public policy.
An Orlando prenuptial agreement lawyer will ensure your agreement meets these requirements.
Practical Strategies for Couples with Significant Debt
An Orlando prenuptial agreement lawyer can help you implement strategies such as:
- Keeping separate accounts for debt repayment.
- Avoiding joint accounts for personal expenses.
- Establishing regular financial reviews to monitor debt.
- Setting limits on how much debt can be incurred without consent.
Common Mistakes to Avoid
When creating a prenuptial agreement for debt, avoid:
- Failing to list all debts.
- Using vague language.
- Overlooking the impact of future debt.
- Neglecting to address debt in the event of death as well as divorce.
Frequently Asked Questions
1. Can a prenuptial agreement protect me from my spouse’s pre-marital debt?
Yes. Your agreement can assign full responsibility for that debt to your spouse.
2. What about debt incurred after marriage?
You can classify certain debts as separate even if incurred after marriage, provided both parties agree.
3. Can I protect myself from my spouse’s business debt?
Yes. The agreement can limit your liability for business obligations.
4. Do we have to disclose all debts in the agreement?
Yes. Full disclosure is required for enforceability.
5. Can the agreement address tax debts?
Yes. It can assign responsibility for past and future tax liabilities.
6. What if we refinance debt during marriage?
Your agreement can specify how refinanced debt will be treated.
7. Can we set spending limits in the agreement?
Yes. You can include provisions requiring consent for debts above a certain amount.
8. What if marital funds are used for my spouse’s separate debt?
Your agreement can provide reimbursement provisions.
9. Can we change the agreement later?
Yes. You can update it with a postnuptial agreement.
10. Will a court enforce all debt provisions?
If the agreement is properly drafted and meets Florida’s requirements, the court is likely to enforce it.
The McKinney Law Group: Orlando Prenup Lawyers for Financial Clarity
A prenuptial agreement helps ensure both partners enter marriage with a clear understanding of financial rights and responsibilities. We help Orlando couples craft agreements that are fair and enforceable.
Call 813-428-3400 or email [email protected] to schedule your consultation.