The Florida Statute Chapter 61 governs divorce.  The Florida statute says what property gets divided and how in a Florida divorce.  The statute also says who pays who and what amount.  You don’t have to follow the Florida statute, though, if you’ve entered into a prenuptial agreement with your spouse.  A Florida prenuptial agreement will supersede the statute so long as the prenuptial agreement is held to be valid by the court.

If you don’t bring up your Florida prenuptial agreement to the court, the court won’t know the prenuptial agreement exists and therefore won’t enforce the prenuptial agreement.

If you don’t challenge a Florida prenuptial agreement, the court will just assume the prenuptial agreement is valid and enforce the clauses of the agreement when ordering the final marital settlement judgment.

The Florida Statute

Florida has a statute governing prenuptial agreements.  That statute is under 700 words and does not provide us with a lot of direction as to what makes a Florida prenuptial agreement good or bad. The statute does provide some formal guidance that everyone needs to know if they are considering a prenuptial agreement or in possession of a prenuptial agreement

“(a) Parties to a premarital agreement may contract with respect to:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

4. The establishment, modification, waiver, or elimination of spousal support;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. The ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a premarital agreement.” Fla. Stat. Sec. 61.079

So, the statute specifically lays out what you can and cannot do with a Florida prenuptial agreement.

YOU CAN 1) do anything you want with property, 2) figure out alimony in advance, 3) bind each other into a will or life insurance policy.

YOU CAN’T 1) specify child support in advance.

Obviously, there is more to prenuptial agreements in Florida than this.  When the statute isn’t specific, family law attorneys turn to the case law to fill in the blanks.

The Florida Case Law

The leading Florida case of Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962), sets forth the following essential requirements:

  • Fair and reasonable provisions; and
  • In the absence of such provisions, full and frank disclosure of net worth before signing or general and approximate knowledge regarding net worth.

Subsequent cases have created additional requirements for a valid prenuptial agreement

  • Contracts must be entered into freely and voluntarily. Potter v. Collin, 321 So.2d 128 (Fla. 4th DCA 1975)
  • The contract must not violate public policy. Busot v. Busot, 338 So.2d 1332 (Fla. 2d DCA 1976). See McNamara v. McNamara, 40 So.3d 78, 80 (Fla. 5th DCA 2010) (“A contract is not void, as against public policy, unless it is injurious to the interest of the public or contravenes some established interest in society.”)

So there we have four avenues of attack on a prenuptial agreement.  Let’s go through each one of them to see how we a prenuptial agreement can be attacked or defended on those particular grounds.

Fair And Reasonable Provisions

The word “provision” in “fair and reasonable provision” refers to the other spouse being provided for (the Del Vecchio case was from 1962 so we’re stuck with that old-timey language)

The standard at which the other spouse should be provided for is that the standard of living should be reasonably consistent with that before the dissolution of marriage and not less than that existing before marriage.

In this analysis, it is easier to answer the latter test first. Does the prenuptial agreement provide for a standard of living less than what existed for the spouse before the marriage?

  • Does the prenuptial agreement provide at least that amount, plus the spouse’s income and assets to provide the same premarital lifestyle?
  • What did it cost the spouse to maintain their lifestyle before the marriage?

This is a straight apple to apples comparison.  Does the newly single lifestyle at least match the previously single lifestyle of the other spouse.

If the answer to the first question, “Does the prenuptial agreement provide at least that amount, plus the spouse’s income and assets to provide the same premarital lifestyle?” is “No” then the prenuptial agreement does not have “fair and reasonable provisions” and the prenuptial agreement is unreasonable.

If the answer is yes, we proceed to the next test: Does this prenuptial agreement provide the other spouse with the same standard of living they enjoyed during the marriage?

  • What did it cost to maintain the other spouse’s lifestyle during the marriage?
  • Does the prenuptial agreement provide at least that much income or assets to the other spouse to keep up with that cost considering the other spouse’s independent income and assets?

While it is more difficult to compare a married person’s lifestyle to a single person’s lifestyle lawyers do their best to make the argument in favor of their client.  If the answer to the second question is “No.” Then the prenuptial agreement does not have “fair and reasonable provisions” and is therefore unreasonable on its face.

If the answer is “yes” then the agreement is reasonable…but that doesn’t mean it’s valid.

If the prenuptial agreement is reasonable on its face then it is the burden of proof rests upon the spouse challenging the validity of the prenuptial agreement’s validity.

If the prenuptial agreement is unreasonable on its face then a presumption arises that the other spouse is concealing some kind of income or assets and the burden of proof shifts to the spouse upholding the validity of the prenuptial agreement.

In sum, if a spouse is maintaining their standard of living after the prenuptial agreement is enforced then the law says, “what are you complaining for” and can allow the prenuptial agreement to stand.

Full Disclosure Of Income And Net Worth

If the other spouse is not maintaining their standard of living if the prenuptial agreement was enforced post-divorce, then we must determine if this is what they, in fact, bargained for.

The spouse attacking the validity of the prenuptial agreement has a much more objective test at this turn:  Was their full financial disclosure?

Spouses must have adequate knowledge of the marital property and income. Tubbs v. Tubbs, 648 So.2d 817 (Fla. 4th DCA 1995)

Recall that this test need not be proven by the spouse attacking the prenuptial agreement.  The burden is on the prenuptial agreement defender to prove that there was full financial disclosure.

Full financial disclosure need not be minutely detailed nor exact. O’Connor v. O’Connor, 435 So.2d 344, 345 (Fla. 1st DCA 1983)

For example, In Gordon v. Gordon, 25 So.3d 615 (Fla. 4th DCA 2009), the husband’s financial disclosure attached to the prenuptial agreement did not list his airline pension. The court upheld this prenuptial agreement by recognizing that the husband had disclosed substantial assets, and the undisclosed pension plan constituted only a small fraction of the husband’s total net worth.

What is full financial disclosure in a Florida prenuptial agreement? There is not a black and white rule because everyone’s financial situation is different but here are things that should be used as evidence of full financial disclosure.

  • A true and complete financial affidavit (include link)
    • Note: this is also the best way to attack the full financial disclosure because if a sworn affidavit is wrong then it is presumptively false that there was full financial disclosure.
    • Second note: You have FOREVER to challenge the prenuptial agreement based on a false financial affidavit. Fam.L.R.P. 12.540
    • Note: If a financial affidavit was not included or in the disclosure, the parties only have one year to challenge the prenuptial agreement based on fraud or hidden assets. Viscomi v. Viscomi, 609 So.2d 146 (Fla. 4th DCA 1993)
  • Bank Statements
  • Deeds to real estate
  • Brokerage account statements
  • Income Tax Returns
  • Recent Pay Stubs
  • Partnership or corporate agreements either person is a party to.
  • Inheritances or gifts.
  • Evidence of how sophisticated the spouses were in regards to understanding the above documents.

What happens if a party discloses ownership of an asset but not value?  That is probably full financial disclosure in Florida depending on whether the party had access to the value.  Not everything’s value can be determined exactly (like an antique) and many assets values will vary with time (such as real estate and stocks) making the exact value at the time of disclosure irrelevant.

For example, In Waton v. Waton, 887 So.2d 419 (Fla. 4th DCA 2004), the husband disclosed that he had an ownership interest in an insurance company but did not assign that ownership interest any kind of specific dollar value. The court held that the disclosure was sufficient to give the wife a general knowledge of the husband’s assets. Again, fairness and honesty count for a lot as the court emphasized that the husband disclosed the asset to the best of his knowledge. “Significantly, there is no indication in the record that [h]usband had any more information as to the valuation than that disclosed to [w]ife, and there is no suggestion that any equity or assets of the business were in any way secretly set aside for the future benefit of [h]usband.” 

Furthermore, if the exact value of the husband’s ownership stake in the insurance company was that important to the wife, she had sufficient time and opportunity to investigate that value.  She literally could have just asked for it from the husband.  If he knew he had to tell her.  If he didn’t know or couldn’t know then it wasn’t a failure to disclose.

Florida Prenuptial Agreements Must Be Entered Into Freely and Voluntarily.

Fraud and duress are two reasons that a contract such as a Florida prenuptial agreement will be invalidated.

Incomplete or erroneous financial disclosure is usually objective fraud in regards to a Florida prenuptial agreement.

Duress, however operates on more of a continuum.

In Hjortaas v. McCabe, 656 So.2d 168 (Fla. 2d DCA 1995), the court held that the prenuptial agreement was the product of duress because the agreement was presented to the wife only two days before the wedding.

However, in Margulies v. Margulies, 491 So.2d 581 (Fla. 3d DCA 1986) there was a record of complete disclosure and negotiations through counsel, resulting in modifications to the agreement before it was signed.

The closeness of the execution of the prenuptial agreement to the actual wedding date is often brought up as evidence of duress.  Counter-evidence that the wedding date could have been moved is also allowed (very effective for casual weddings).  McNamara v. McNamara, 40 So.3d 78, 80 (Fla. 5th DCA 2010)

Unlike the full financial disclosure test described earlier, the person alleging duress is going to have the burden of proving that sufficient duress existed.

Prenuptial Agreement Void For Florida Public Policy

In Florida, a deal is a deal unless its against public policy. “A contract is not void, as against public policy unless it is injurious to the interest of the public, or contravenes some established interest in society.” Harris v. Gonzalez, 789 So. 2d 405,409 (Fla. 4th DCA 2001)

The best guide to what public policy is or should be are the Florida statutes.  If the prenuptial agreement is in direct contravention to the Florida statutes then it is defacto against public policy.

One can imagine any number of situations where a prenuptial agreement may include clauses that should be voided for public policy.  Imagine a prenuptial agreement where the parties agreed in advance that each parent had to maintain a certain religion’s observances.  That would clearly violate the freedom of religion of the parties.

On the other hand, a prenuptial agreement with a clause that punished adultery with a $ 50,000 penalty may in theory infringe on a party’s freedom of association but a court would be likely to uphold this clause because society, in general, doesn’t like adultery.

This should underscore that you should always make an argument that a clause in a Florida prenuptial agreement is either for or against public policy based on your interests but not expect the court to do too much with that argument. 

How Do You Prove Or Disprove Reasonable Provisions, Full Financial Disclosure, or Duress?

You prove things in court using the Florida Evidence Code.  This is where you or your lawyer submit either testimony or exhibits to the court as information and items to consider.  Then you or your lawyer makes arguments about how the judge should interpret the evidence in light of the law, logic and in the context of the evidence as a whole.

After submitting the evidence to enforce or invalidate a prenuptial agreement in Florida it is important to remind the court of several arguments.

Prenuptial agreements are treated differently than other contracts where we presume that each party treats each other at arm’s length.  An arm’s length transaction is a transaction negotiated by unrelated parties, each acting in his or her own self-interest. That’s obviously not what happens with a prenuptial agreement between two people in love and planning a life together.

“The relationship between the parties to an [marital] agreement is one of mutual trust and confidence.” Posner v. Posner, 257 So.2d 530, 535 (Fla. 1972)

The standard the courts require of two parties entering into a prenuptial agreement is quite high. “[T]he parties must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the terms and execution of the proposed agreement, with Fairness [sic] being the ultimate measure. Lutgert v. Lutgert, 338 So.2d 1111, 1115 (Fla. 2d DCA 1976)

Again, someone challenging a prenuptial agreement can rely on mere fairness.  You can tell the court that fairness is not just an abstract idea. “If it is accepted that fairness is what the law provides, then it follows that the purpose of premarital agreements is to bring about an unfair result to one of the parties-that is, upon dissolution of a marge, one of the parties will receive less in the way of assets or income than he or she would have received by operation of law.” Joseph Gitlin, Gitlin on Divorce: A Guide to Illinois Matrimonial Law (2010)

The opposite argument also has weight.

A contract’s fairness is determined by the parties who entered into the contract not by the courts.  Should every contract in America be reviewed for “fairness” by a court.  That would be absurd so why should we review a prenuptial agreement for mere fairness.  It’s simple, every contract should simply mean what it says in black and white.

Prenuptial Agreements From Other States

As we all know, couples can and will move to different states throughout their relationship.  A couple may execute their prenuptial agreement in one state and then ask that it be enforced or invalidated in another state.

Because of this, prenuptial agreements will often include a “choice of law” clause indicating which state’s law will be applied when enforcing or invalidating a prenuptial agreement.

This makes things terribly complicated.  If you’re getting divorced in Florida then Florida has jurisdiction over the case.  The application of the prenuptial agreement however must be done under the law of the state proscribed in the prenuptial agreement.

Therefore, a judge who probably has only practiced law in Florida now has to become familiar with another state’s law in order to properly interpret the prenuptial agreement under that state’s law.

The solution to this is simple, hire a co-counsel from the state in question to join you in the case for the purpose of explaining the state’s law to the judge.  The opposing counsel can file a motion for Pro Hac Vice which will allow him to practice in Florida for this limited purpose.  This is functionally the equivalent of hiring an expert to provide testimony.

Alternatively, both sides can agree to abandon the choice of law clause and follow Florida’s law exclusively.  I would still contact a family law attorney from the state in question to see which option is most advantageous to your position.

Alternatives To Enforcing or Invalidating a Florida Prenuptial Agreement 

As long as both parties are agreed, it is not required that you follow a prenuptial agreement or formally invalidate a prenuptial agreement.

The parties can negotiate amongst themselves to see exactly how far apart they are in their respective final proposals.  If the differences between the parties proposals are not significant the parties can abandon the prenuptial agreement and should specifically say that they waive enforcement in the final marital settlement agreement.

It may not be worth filing a motion to enforce or invalidate the prenuptial agreement. Once the court has ruled on the validity of the prenuptial agreement one of the parties loses all leverage in negotiations which will likely result in a less amicable solution (which is often a goal of its own especially if you have to still deal with each other because of children).

If you’d like to learn more about whether your prenuptial agreement will hold up in a court of law contact Naples, Florida family law attorney, Russell Knight to learn about all of your options.