Avoid a Florida Prenuptial Agreement Challenge

Avoid a Florida Prenuptial Agreement Challenge

Avoid a Florida Prenuptial Agreement Challenge

Although it can be said that prenuptial agreements once had a stigma, it is now commonly understood that they can actually help a couple enter a more stable and trusting marriage. There are still some people who should have a prenuptial agreement that will decide that it is too much trouble to deal with, that the process is not worth their time. We have many divorce clients that would strongly advise you in a different direction. Many people are getting married (or re-married) at an older age and realize that they have important assets to protect when entering into a marriage, and realists will want to ensure that these items are protected in the case of a particularly messy and sudden divorce.


What must be done to Validate a Prenuptial Agreement in Florida?

Prenuptial agreements, if done improperly, can obviously have many unintended consequences – including simply being held to be unenforceable/invalid. Technically, under Florida Statute 61.079(4),  the only proactive formality that must be done that is specifically set forth is that the premarital agreement must be in writing and signed by both parties. Additionally, the agreement is invalid without consideration other than the marriage itself. The statute does discuss what cannot be addressed in the agreement under Florida Statute 61.079(4)(b), which is the right of the child to receive financial support.


Challenging a Prenuptial Agreement in Florida

Assuming that the agreement was in writing, each spouse signed the agreement, and that there was consideration exchanged in the agreement, it may indeed be held to be valid on its face. However, there are other methods to challenge prenuptial agreements that are available when looking at the circumstances surrounding the drafting, negotiation, and signing of the agreement. Many of these challenges are not dissimilar to those that you would employ to challenge any other contract.

A few methods are laid out in Florida Statute 61.079 (7). The statute makes clear that property will not be divided in accord with a premarital agreement if the party against whom enforcement is sought proves that:

  • one spouse did not execute the agreement voluntarily;
  • The agreement was the product of fraud, duress (no time to review the agreement), coercion, or overreaching;
  • The agreement was unconscionable when it was executed and, before the execution of the agreement, that party:
    • Was not provided a fair and reasonable disclosure (aka “full disclosure”) of the property or financial obligations of the other party;
    • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
    • Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
  • a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, then a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

How Can I Increase the Likelihood of the Enforceability of the Prenuptial Agreement?

As you can see, there are several things that you will want to keep in mind when drafting a prenuptial agreement in order to ensure that your property will be divided in an intended manner in the event of a divorce.

Also keep in mind that, while having a single-family law attorney representing both parties involved in a prenuptial agreement may technically be legal, it is definitely not recommended. Each party should seriously consider hiring an experienced family law attorney. Independent counsel for each party is highly recommended, as they help you avoid issues laid out above, and help to ensure that you and your future spouse are both well-informed and happy with the agreement that you have entered into.