The first thing to understand is that a prenuptial agreement is a contract. It is largely governed by the same contract law that controls a contract to fix a car, sell custom jewelry or any other agreement where you both promise to do something later to the specifics of a contract.
The next big factor to consider is the very brief statute that controls prenuptial agreements. The first section lays explicitly what you can include in a prenuptial agreement (which they call a premarital 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.” Fla. Stat. Sec. 61.079
You’ll see that anything monetary or physical can be included in a premarital agreement in Florida.
The more relevant section of the statute relates to what you CANNOT include in a premarital agreement in Florida.
“(b) The right of a child to support may not be adversely affected by a premarital agreement.” Fla. Stat. Sec. 61.079
Child support cannot be bargained for in a Florida premarital agreement.
Given that there’s a specific list of what we can include in a Florida premarital agreement and only one item that we definitely cannot include in a premarital agreement, what happens to anything else that you include in a premarital agreement? The courts answer that question on a case by case basis.
While you can negotiate that one spouse is completely unable to collect alimony after a divorce, you cannot include temporary support during the pendency of a divorce in a premarital agreement. Belcher vs. Belcher, 271 So. 2d 7 (Fla. 1972) This also applies for a temporary award of attorney’s fees.
You cannot include anything regarding child custody in a Florida premarital agreement. Kennedy vs. Kennedy, 583 So. 2d 415 (Fla. 5th DCA 1991) The courts will always consider the best interests of the child first before any agreement of the parents, past or present.
Should you want to contest, void or vacate a marital agreement, it must be done within a divorce action. These actions are filed in the county where at least one of the parties lives. So, if you or your spouse live in Naples, Florida you would file your divorce or separation action in Collier County. Upon filing, you can ask the court for a declaratory judgment regarding the validity of the prenuptial agreement. The statute provides explicit direction on how to do so:
“(a) A premarital agreement is not enforceable in an action proceeding under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that:
1. The party did not execute the agreement voluntarily;
2. The agreement was the product of fraud, duress, coercion, or overreaching; or
3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.” Fla. Stat. Sec 61.079(7)
All of these grounds for declaring a Florida premarital agreement to be unenforceable amount to one underlying theme “was there sufficient disclosure?” As premarital agreements are almost entirely regarding assets and income those items must have been adequately disclosed to prevent a claim of fraud or lack of voluntary agreement.
The Florida courts have had many cases that discuss the timing of presentment of a premarital agreement as a factor in whether one party was subject to duress. Specifically, the courts ask “when did you first see the proposed agreement?” Two days before the wedding is duress. Hjortaas vs. McCabe, 656 So. 2d 168 (Fla. 2d DCA 1995). However, two weeks before the wedding with full disclosure and prior negotiation provided for an enforceable premarital contract. Waton v. Waton, 887 So. 2d 419 (Fla. 4th DCA 2004).
Overreaching is a more common attack on a premarital agreement. Essentially, overreaching is the claim that there was no agreement because the level of trust one party had in the other party was so much that they had no knowledge at all of what they were getting into. Usually this has to be proven by the other party saying something like, “don’t worry. This agreement won’t effect your rights.”
The courts can consider general fairness in itself in deciding if a Florida premarital agreement is enforceable.
“(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.” Fla. Stat. Sec. 61.079
But, once that unfairness is established the courts have established a test as to whether the agreement can be thrown out. If the premarital agreement-defending-spouse can show that there was “either a full , frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and income of the parties or (b) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by the reasonable means, as well as a general knowledge of the income of the parties.” Casto v. Casto, 508 So. 2d 330 (Fla. 1987). Again, one can see how this all comes down to disclosure of assets and income as the key to ensuring that a premarital agreement is valid.
A premarital contract can be entered into without an attorney but, if so, the challenging spouse can use the absence of an attorney’s counsel to prove lack of disclosure and/or overreaching.
Oddly, a prenuptial agreement can elect to use the laws of another state (usually the state where the agreement was signed) even though the divorce is to proceed in Florida based on the residency of one or both of the parties. This creates the awkward situation where a judge in Florida is applying another state’s laws.
Contact my Naples, Florida office to learn how to make a prenuptial agreement, verify if your prenuptial agreement is valid or learn how to invalidate your prenuptial agreement.