Prenuptial and Postnuptial Agreements in Florida

Prenuptial agreements and postnuptial agreements can be a factor in Florida divorces. Where one or both spouses have significant assets before they get married, the spouses may create prenuptial agreements to protect those assets. Similarly, if the spouses obtain a large amount of assets during the course of their marriage, they may enter into a postnuptial agreement as a way of telling the court how they wish such assets to be treated in the case of a divorce.

A valid prenuptial or postnuptial agreement can take a lot of guesswork out of the divorce process because such agreements tell the court how the parties wish certain property or assets be divided in a divorce. However, it is important that these agreements are made and executed in accordance with Florida law; otherwise, these agreements may be found to be unenforceable, leaving the court to divide property as it chooses.

Purposes of Prenuptial & Postnuptial Agreements

Regardless of whether a couple enters into a prenuptial agreement or a postnuptial agreement, the parties likely entered into the agreement for one of two reasons:

• The parties wanted certainty in the division of their property. This is one of the great advantage of prenuptial or postnuptial agreements – they create some measure of certainty in divorce cases. If they are properly drawn up and executed, a court will follow such an agreement and the parties can anticipate what assets will go to which party.

• One party wishes to protect the property rights of his or her children. Where one party to a marriage has children from a previous marriage, a prenuptial or postnuptial agreement can help protect the property rights of these children. For example, a prenuptial or postnuptial agreement can prevent the stepparent from “disinheriting” the child in the event his or her natural parent dies.

Prenuptial Agreements

A prenuptial agreement (or premarital agreement) is an agreement entered into by two individuals before they legally marry. These agreements are typically entered into because one of the spouses has a significant amount of assets that he or she would like to keep in the event of a subsequent divorce.

In order to be a valid premarital agreement, the agreement must:

• Be in writing.  If the agreement is not in writing, it is not an enforceable premarital agreement and a court will not follow it. In other words, if two individuals orally agree that their property will be divided in a certain way – but they never put this agreement in writing – the agreement will not be enforced by the court.
• Be signed by both parties. This demonstrates to the court that both parties read and understood the agreement. If there is only one or no signatures on the agreement, the court will not enforce the agreement but instead conclude that the party whose signature is missing either did not have a chance to review the agreement or did not agree to the terms of the agreement.
• Be followed by a valid marriage. It may seem obvious, but a premarital agreement is only enforceable if the parties actually marry. If the parties never marry, the agreement is not enforceable (this makes sense, because there would be no divorce and no need for the court to divide any marital property). But even if the parties do marry, if that marriage is determined to be void – for example, if it is discovered that, at the time of marriage, one of the parties was already legally married to another person – then no valid marriage took place, and a court cannot enforce any premarital agreement.
• Contain permissible terms and provisions. Florida statutes are specific about the contents of prenuptial agreements. If a premarital agreement touches on an area or subject that is not permitted by statute, any agreement between the parties as to that particular subject will be disregarded by the court. A prenuptial agreement can address the following topics:

o   Rights and obligations regarding property (who gets to own certain pieces of property, who is responsible for the payment of debt on property, etc.);

o   Who gets to use or control certain property;

o   What happens to certain property upon the death of either party or upon the parties’ separation, divorce, or other event;

o   Spousal support;

o   Ownership rights and disposition of life insurance policies;

o   Other personal rights that do not violate a strong public policy or violate a criminal law.

Postnuptial Agreements

A postnuptial agreement is very similar to a prenuptial agreement in terms of requirements and contents; the main difference is that a postnuptial agreement is entered into after the parties have legally married. Because the parties are legally married, the law imposes an additional condition before the court will recognize and enforce a postnuptial agreement: full financial disclosure. That is, as part of the postnuptial agreement, both spouses must affirm that they have truthfully and accurately disclosed their complete financial situation to each other. This prevents one spouse from obtaining a windfall of assets (such as winning the lottery) and hiding such an asset from the other spouse.

Setting Aside a Prenuptial or Postnuptial Agreement

If your spouse presents you with a postnuptial agreement – or if your soon-to-be spouse asks you to sign a prenuptial agreement – it is important that you read the proposed agreement and understand the terms contained therein. If you sign a prenuptial or postnuptial agreement and the agreement is otherwise lawful and enforceable, a court will enforce the agreement even if it no longer benefits the parties in the way they intended. Consider the couple of Dan and Laura, who are divorcing after several years of marriage. Before marrying, Dan and Laura entered into a prenuptial agreement. The agreement provided that Laura would receive $300 in alimony per month in the event of a divorce. This amount was based on Dan’s income at the time of the agreement. But suppose that during the marriage Dan received a substantial raise. The court will still likely honor the original agreement for $300 in alimony, even if it would have given Laura more alimony absent the agreement. In other words, the court will not protect a party from agreeing to a “bad deal.”

In certain circumstances, though, a court will conclude that it should not enforce a prenuptial or postnuptial agreement, usually because one party engaged in bad conduct. A court can set aside a prenuptial or postnuptial agreement in cases where:

• The parties agree to set the agreement aside. If both parties agree in writing to set the agreement aside or modify the agreement in some way, and they both sign the writing, a court will follow the parties’ wishes.
• A party did not sign the agreement voluntarily. This requires that the parties both sign the agreement as an act of their own free will. Signing a prenuptial or postnuptial agreement is not a voluntary act if it is induced by other promises, by fraud, or by duress. For instance, if Dan tells Laura to sign the agreement and promises her a new car or piece of jewelry, Laura may be able to argue that her signing the agreement was not a voluntary act. Likewise, if Dan did not allow Laura an adequate amount of time to review the agreement before signing, Laura can potentially claim that her signing of the agreement was not done voluntarily.
• One party acted fraudulently. Fraud occurs when one party lies or conceals the truth concerning a material fact, such that the defrauded party misunderstands the situation or nature of the agreement. For instance, if Dan misrepresents his financial situation, such that Laura believes Dan owns far fewer assets than he truly does, Dan has acted fraudulently. If Laura discovers the fraud after she has signed the agreement, she may be able to have the court disregard the agreement because of Dan’s fraudulent misrepresentation.
• One party was under duress when signing the agreement. Duress refers to serious or significant pressure, such as a threat of violence or blackmail. A court typically holds that if a person performs an action while under duress, then the action is not voluntary. If Dan threatens to ruin Laura’s family’s business unless she signs a postnuptial agreement, for instance, Laura’s signing of the agreement will have occurred under duress and the agreement can be avoided.
• The agreement itself is unreasonable. Especially in the case of a postnuptial agreement, a court can examine the circumstances and facts surrounding the agreement and determine if the agreement itself is unreasonable. While a court will not generally protect one party from entering into a “bad deal,” a court can take notice, and if for instance, one spouse understood very little English and had no one to assist her in reading the agreement, the agreement may be found to be unreasonable and may be set aside.

What if My Spouse or Partner Wants Me to Sign a Prenuptial or Postnuptial Agreement?

If you are being asked to sign a prenuptial or postnuptial agreement, you should proceed with caution. It is far easier to resolve issues with prenuptial or postnuptial agreement before they are signed; once the agreement is signed, it becomes more difficult to convince a court that the agreement should be set aside. Keep these tips in mind if you are asked to sign a prenuptial or postnuptial agreement:

• Read the agreement carefully. It is often easy to simply take your partner’s or spouse’s word regarding the contents of an agreement. However, trying to set aside a prenuptial or postnuptial agreement on the grounds that you simply took your partner at his or her word is not likely to be successful. Take the time to carefully review the agreement in its entirety. If you remain unsure as to the contents of the agreement, ask a trusted friend or family member to help you.
• Make sure the agreement says what you want it to say. Just because your partner or spouse is the one who proposed the prenuptial or postnuptial agreement does not mean that you have no say in what the agreement says. Like in any other contract, since you are a party to the contract, you are free to propose your own terms and conditions. If you are not satisfied with the agreement, be sure to voice your concern.
• Consider the assistance of an attorney. An attorney can explain to you the meaning of the provisions of a prenuptial or postnuptial agreement and advise you on the legal consequences of those provisions. Not only this, but an attorney can provide suggestions for provisions you might like to have in the prenuptial or postnuptial agreement, so that your rights are protected.
• Do not sign any agreement unless you are comfortable doing so. Do a “gut check” before signing any agreement: Does the agreement “feel right?”  Do you feel comfortable signing the agreement?  If not, it is probably better that you do not sign the agreement. As noted above, it is challenging to get a court to set aside an otherwise valid prenuptial or postnuptial agreement. Resist any pressure your partner or spouse may place upon you to sign an agreement quickly.

Conclusion

When used properly, prenuptial and postnuptial agreements can provide spouses and partners with a measure of certainty and peace. Validly executed prenuptial and postnuptial agreements can describe how property is to be handled in cases of divorce or separation, and courts are likely to follow such agreements in most circumstances. One must carefully consider the terms and provisions of any such agreement, however. Just as a valid agreement requires the consent of both spouses or partners, a prenuptial or postnuptial agreement can only be modified or revoked with the consent of both partners. While a court can set aside an agreement, doing so requires the court to make specific findings suggesting that some illegality or bad conduct was involved in securing your signature to the agreement.

When in doubt or if you are unsure about a prenuptial or postnuptial agreement, it is advisable to consult with an experienced family law attorney who can advise you of your rights and responsibilities, and suggest ways to craft an agreement that carries out your intentions and wishes.