Enforceable Prenuptial and Postnuptial Agreements
By Orlando Family Law Attorney Eduardo J. Mejias
Benefits Of Prenuptial and Postnuptial Agreements
Many people in the Orlando and Central Florida area wrongly assume that prenuptial and postnuptial agreements can only benefit the rich and famous. Or, they view then as “romance-killers.” But they can strengthen couples' marital relationship by getting them to face issues and achieve agreements before (or even after) they marry.
In any relationship, early definition, agreement and clarity of responsibilities is the best way to avoid future misunderstandings that can lead to disappointments and conflicts, like: “Oh, honey, I thought you were going to be the breadwinner!”.
These agreements can also eliminate concerns that everyday couples have when they enter marriage because: (a) they ensure that family-held assets remain within the family (b) they protect both partners from being saddled with onerous alimony and attorney’s fees payments in case of divorce, and (c) they keep down the legal costs in case of a divorce since most of its terms have been already agreed on. And the marrying couple will know the terms of a possible divorce in advance.
A well-drafted agreement will relieve the couple of the scary uncertainties of a potential divorce, allowing them to focus on each other. And that is a good thing for their marriage because removing these uncertainties builds trust.
Prenuptial agreements can accomplish these things by guaranteeing that three of the four major issues arising in case of divorce are settled before the wedding (or in the case of a post-nuptial agreement, after the wedding). A skillful Orlando family law attorney can devise an agreement that will: (a) specify which assets (accounts, inheritances, real property, vehicles, etc.) will be awarded to each spouse in any final divorce judgment, (b) determine how much alimony, if any, will be awarded to one spouse and (c) apportion the payment of the attorney’s fees that each spouse incurs in the divorce.
Limitations Of Prenuptial (or Premarital) and Postnuptial Agreements
However, these agreements cannot settle issues such as these:
Spouses cannot waive or allocate the amount of alimony or attorneys fees to be paid during the divorce litigation, before the final judgment. Why not? Because Florida courts have concluded that this would violate public policy by abrogating a spouse’s duty to support the other spouse during the marriage. The marriage is considered intact until the divorce judgment is signed. And paying for the poorer spouse’s attorney’s fees during the divorce proceedings is considered “support.”
Spouses can however, waive or allocate the amount of alimony or attorney’s fees that are due after the divorce judgment, provided that the agreement expressly and clearly states this intent.
Since couples cannot possibly know what is in the best interest of their future or existing children so far ahead of time, time-sharing (custody) provisions and amounts of child support that is written into a prenuptial agreement cannot not be enforced.
When Are Prenuptial (or Premarital) and Postnuptial Agreements Unenforceable?
Section 61.079, Florida Statutes, lists the following reasons for which a court can decide to not enforce a prenuptial or postnuptial agreement:
If a spouse did not execute the agreement voluntarily, or it was a product of fraud, duress, coercion, or overreaching, it becomes unenforceable according to Section 61.079(7)(a), Florida Statutes.
If the agreement was “unconscionable” (ridiculously one-sided) when it was formed, and the disadvantaged spouse lacked a reasonably complete picture of the other spouse’s financial situation (and did not waive the right to this knowledge), a court will not enforce it. Details like these are an important reason why prenuptial and postnuptial agreements needs to be drafter with the help of an experienced family law attorney.
These two long-standing rules, which the statute merely codified, make it imperative that language be included in the agreements that clearly indicates both parties were aware of the other’s assets and income, and that neither spouse was pressured or tricked into signing the agreement.
However, Florida case law has made it difficult, but not impossible, for spouses to set aside agreements they made before, or right after the marriage. For example:
A divorcing spouse must produce fairly compelling evidence of duress, coercion, or fraud. These are some situations that have not been ruled to be sufficient grounds to nullify the agreement: (a) making the signing of the agreement a condition of the marriage, (b) being seven months pregnant, and (c) signing the final version of the agreement just an hour before the wedding ceremony (Francavilla v. Francavilla, 969 So.2d 522, 525 Fla. 4 DCA 2007).
An appellate court has ruled that each spouse only has to be provided with a “general and approximate” knowledge of the other spouse’s financial resources. Gordon v. Gordon, 25 So.2d 615, 617 (Fla. 4 DCA 2009). Neither spouse must “disclose every minute detail” or “be exact” regarding their finances.. Finally, a prenuptial and postnuptial agreement must be more than just a “bad bargain” to have it set aside. Actual and substantial lack of knowledge of the other spouse’s finances, and unfair terms must both be present (Casto v. Casto, 508 So.2d 330, 334, Fla, 1987) .
Importance Of Prenuptial (or Premarital) and Postnuptial Agreements
In short, your marriage will be on a more secure foundation when you agree in advance on many of its important “terms and conditions”. Florida family law courts generally welcome nuptial agreements as effective tools for reducing the staggering volume of divorce and related litigation. These agreements will also spare you and your partner thousands of dollars in future attorney’s fees, as well as the stress and emotional turmoil that accompanies a contested divorce.
How AAA Family Law Can Help You Draft a Nuptial Agreement
You need an Orlando family law attorney experienced in drafting these agreements to ensure that it covers all of the legally enforceable provisions that you and your future or current spouse agree to include. I have been practicing almost exclusively family law since 2005, representing hundreds of clients. And I will make sure that your agreement will conform to legal requirements that make it enforceable.
Please, call or e-mail me, Eduardo Mejias, at AAA Family Law at (407) 260-6001 to schedule a free initial consultation for thirty minutes. There is an hourly charge for additional consultation time. See Family Lawyer Retainer Fees
At the consultation I will explain the process of creating a prenuptial or postnuptial agreement and quote you a fixed retainer fee for helping you prepare it before you sign a contract or make a payment.
Our attorney retention fees for prenuptial or postnuptial agreements range between $1,000 and $1,250 depending on their level of complexity.
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