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Prenuptial agreements are more popular today than they were 20 years ago. People with significant wealth are getting married for the second or third time and want to protect assets for their children, and people in their 30s seek prenuptial agreements to protect business interests given by a parent or grandparent.
People also seek a prenuptial agreement so they will know what they will be entitled to in the event of a divorce. Others believe that a prenuptial agreement will make the divorce less acrimonious.
What Does a Prenuptial Agreement Do?
A prenuptial agreement is a contract that specifies how financial assets and property will be divided between a divorcing couple. Just like any contract, a prenuptial agreement can be challenged at any time, by either party.
To be valid a prenuptial agreement must:
- Include a full disclosure of the income and assets of both parties
- Be entered into freely
- Be made in writing and signed by both parties
- Be reasonable
- Allow each party time to review the agreement and with the assistance of legal counsel
- Be followed by both parties
A Florida divorce lawyer can challenge a prenuptial agreement at any time if any of these requirements were not met.
Overturning a prenuptial agreement is possible, but difficult. At least one factor must exist that makes the agreement unfair, or “unconscionable.”
Common theories to challenge a prenuptial agreement include fraud, where one spouse significantly undervalues their assets, and duress, where one party forced the other party to sign the prenuptial agreement.
How to Challenge a Prenuptial Agreement in Florida
Failure to Disclose/Fraud
A prenuptial agreement is only fair if both parties know what they would inherit without a prenuptial agreement. Therefore, a prenuptial agreement should include a list of each spouse’s assets and debts. If one spouse deliberately conceals assets so the other spouse does not know what they are giving up by signing the prenuptial agreement, courts will often find the prenuptial agreement invalid.
However, some prenuptial agreements waive this requirement. If you signed a prenuptial agreement that waived the right to a disclosure of your spouse’s assets, you would need to find another reason to invalidate the prenuptial agreement.
Duress does not need to be a threat of physical violence in order to invalidate a prenuptial agreement. Many prenuptial agreements are invalidated when, for example, one spouse presents the other with a prenuptial agreement shortly before the wedding. This poses multiple problems in that the spouse receiving the prenuptial agreement did not have time to review the document or consult with counsel. And if the spouse presenting the prenuptial agreement gets angry or violent, there is good cause to argue that the signature was coerced.
Oral Prenuptial Agreements Are Not Valid
An oral prenuptial agreement simply is not enforceable. An English statute passed in 1677 called the Statute of Frauds requires that certain contracts be in writing. The Statute of Frauds has been adopted by American courts and requires that any contract made in contemplation of a decision to marry must be made in writing.
A Prenuptial Agreement Must be Reasonable
By its very nature a prenuptial agreement will be biased towards one party. After all, one party is trying to protects their assets, which means they are trying to prevent the other party from getting those assets. However, the prenuptial agreement cannot be so one-sided as to be unconscionable. Unconscionability is often described as being “shocking to the conscience.” If your prenuptial agreement is so one-sided as to be unconscionable, your Florida divorce lawyer may be able to challenge it on the basis of unconscionability.
An eleventh hour signing, such as the night or hours before the wedding, will often invalidate a prenuptial agreement.
To be valid, both parties need to be given time to review the prenuptial agreement, preferably with the assistance of legal counsel. If one spouse presents the other with a prenuptial agreement hours before the wedding, the other spouse could argue that they were effectively coerced into signing because the only other option was to call off the wedding. This is particularly effective if the wedding was lavish and vendors might not refund substantial sums of money if the wedding was cancelled.
Failure to Adhere to All Terms of the Prenuptial Agreement
Another way to invalidate a prenuptial agreement is if the parties fail to adhere to the terms of the agreement. If the spouses agree to keep their finances separate, but then establish joint financial accounts and buy a home together, they have violated the terms of the agreement, which could make the prenuptial agreement unenforceable.
A Prenuptial Agreement Cannot Modify Child Support Obligations
A prenuptial agreement cannot modify the child support obligations of either spouse. Likewise, any other provisions that violate the law will not be enforced. In some cases, the court will invalidate the entire document, while in other the court will simply invalidate the clauses that are illegal.
Contact the Law Office of Jody L. Fisher with Questions About Prenuptial Agreements in Florida
If you have questions about prenuptial agreements in Florida, contact the Law Office Jody L. Fisher for a consultation.