In God We Trust, All Others Sign a Prenup

Picture of Beautiful mansion in Florida on golf course

Planning a wedding is a very exciting and stressful time. The parties are in love and everything seems perfect. However, it is a statistical fact that over half of all marriages fail and second and third marriages are common. As Susie Orman said “Marriage is a financial contract.” For this reason, a Premarital Agreement is an important tool to protect your financial future. It is also an effective way to determine if your soon to be spouse is in love with you, or your bank account.

Premarital agreements cover issues such as property rights in a homestead, protection of separate property, treatment of income earned during marriage, treatment of debt incurred during marriage, provisions for alimony (temporary or permanent), attorney’s fees in the event of separation or divorce and provisions for a spouse in the event of the death of a spouse. In the absence of a Premarital Agreement, appreciation in a home that is owned prior to marriage becomes a marital asset subject to equitable distribution. Furthermore, a surviving spouse is entitled to an elective share of the deceased spouse’s estate, which is 30% of the spouse’s net worth, along with a life estate in the marital home, or a 50% ownership interest.

Invalidating a Prenuptial Agreement

There are two distinct grounds for invalidating a prenuptial agreement: (1) where the defending spouse has engaged in “fraud, deceit, duress, coercion, misrepresentation, or overreaching”; and (2) where “the agreement makes an unfair or unreasonable provision for [the challenging] spouse, given the [relative] circumstances of the parties.” Bates v. Bates, 345 So.3d 328, 333-334 (Fla. 3rd DCA 2021).
In the context of considering whether a prenuptial agreement is invalid, this Court has defined “duress” as being a “condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him [or her] to do an act or make a contract not of his [or her] own volition.”
To prove duress, the challenging spouse must show: (1) “that the act sought to be set aside was effected involuntarily and thus not as an exercise of free will”; and (2) “that this condition of mind was caused by some improper and coercive conduct of the opposite side.” 
The primary difference between “duress” and “coercion” is the level of compulsion exerted by the compelling party. That is, while “duress” generally occurs by means of actual physical force or threatened physical force to one’s person or by threats to one’s property or reputation, “coercion” is “generally defined more broadly to include undue influence and other lesser forms of compulsion.” 

Making a Fair Disclosure of Your Estate

Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage. § 732.702(2), Fla. Stat. (2019).

In general, a Florida court will not enforce an agreement’s provisions that attempt to alter child support or custody. A court will only enforce these provisions if they are more beneficial to the child than Florida law provides. See League v. Lassiter, 536 So. 2d 365 (Fla. 1st DCA 1988).
In order for a Florida Prenuptial Agreement to be valid there must be adequate consideration. Consideration means something more than the promise to be married. Both parties must understand the terms of the Prenuptial Agreement and although Florida does not necessarily require full disclosure, for the agreement to be valid, it is the best practice to provide full financial disclosure, in order to avoid a fraud claim, by the opposing party. In situations where one party has significantly more assets than the other, it is highly recommended that the other party have his or her own attorney to represent him or her. This provides a defense against the other party claiming that he or she did not understand the agreement. Finally, the Premarital Agreement should be signed no later than 30 days before the wedding, in order to prevent the other party from claiming that he or she signed it under duress.

I hope this blog post has been helpful. I am available to help you with all your family law needs.