Signers Beware: The Pros and Cons of Prenuptial Agreements

In marriage and in divorce there will always be unexpected challenges and issues that arise that the couple must deal with. Sometimes the couple works together and is stronger as a result; other times, the couple may crumble under the pressure and end up divorcing. Prenuptial and postnuptial agreements are extremely useful to couples who are realistic and pragmatic about the possibility that one day they may break up. The reality, though sad, can also be traumatic especially when there is significant anger and acrimony between the couple. Prenuptial and postnuptial agreements are important because they designate the rights of the couple at the time of divorce and during the marriage, but at a point where the couple still respects and loves each other.

By not waiting until there is anger and resentment between the couple, the divorce process becomes as easy as a divorce can be because the marital assets and liabilities have already been divided up, and there are only a few residual issues left. A clean split can make for a happily divorced couple. If you and your significant other are considering marriage, it is important to speak with an experienced family law attorney who can help draft a valid and enforceable prenuptial agreement.

Florida’s Prenuptial Agreement Requirements

When drafting a prenuptial agreement, Florida requires that the couple put into writing and sign the agreement. No consideration is needed for the contract to be enforceable. To be enforceable:

  • The agreement must have been executed by both parties voluntarily;
  • The agreement must have been executed without fraud, duress, or overreaching; or
  • The agreement was not unconscionable when executed where either of the parties did not fully, fairly, and reasonably disclose all details about the property holdings or financial obligations.

The prenuptial agreement law requires that both parties, rich or poor, enter into a prenuptial agreement with an understanding of the property that both parties hold and the financial obligations that both parties may be responsible for, as well as both parties entering into the agreement with equal bargaining power.

When an Agreement May Be Found Invalid: Fraud, Duress, or Overreaching

An agreement may be found invalid because it was executed as a result of fraud, duress, or overreaching. In Florida, fraud may be revealed if one of the spouses did not fully disclose or lied about his or her property holdings or obligations. Duress may disqualify an agreement where it can be proven that one person put pressure on another to sign a document either as a result of threats or acts of violence, or other acts that take away the bargaining power of one of the parties, for example, if one of the parties threatened the other with deportation. Finally an agreement may be invalid if it is found that one person was overreaching, which means that one of the parties took advantage of the other through fraud or an unconscionable act, such as giving the agreement to one of the parties to sign right at the moment that he or she was diagnosed with a medical disorder or disease.

Be Careful What Goes in Your Agreement

Florida courts have held that even when a prenuptial agreement puts one of the spouses in a better position than the other, this agreement will be enforceable when both parties knowingly agree to the terms of the agreement. This can mean that Florida courts maysometimes permit provisions within the prenuptial agreement that may limit spousal support post-divorce or possibly enforce lifestyle clauses that are not against public policy. Some lifestyle clauses that may be enforceable are those regarding infidelity clauses and non-disparagement clauses.

Please contact West Palm Beach family law attorney William Wallshein for a confidential consultation and more information regarding prenuptial agreements and possible clauses to incorporate in your agreement.