In a recent blog post, we discussed how having a prenuptial agreement, also known as a prenup or premarital agreement, can save money, grief, and possibly your marriage. As counterintuitive as that may sound, reaching agreement on financial priorities and decisions before you reach a crisis can help prevent conflict in your marriage.
Of course, there are also times when, despite a couple's best efforts, their marriage ends in divorce. When that occurs, remember that having signed a prenup didn't cause the divorce—but it can make it easier, quicker, and less expensive.
While a prenup is intended to mean less fighting during a divorce, because most financial issues are already resolved, it can instead lead to more conflict if there is a debate over whether the prenup is actually valid. In order to get the benefits of a Florida prenuptial agreement, plan ahead to make sure that you avoid a situation that might later cause your prenup to be challenged by your spouse.
What is Needed for a Valid Prenup in Florida?
There are four primary requirements for a valid prenup in Florida:
The agreement must be in writing.
The agreement must be notarized.
The agreement must be entered into voluntarily by both parties.
There must actually be a marriage, upon which the agreement takes effect.
Let's discuss each of these in turn. The requirement of a writing may seem obvious, but some types of oral agreements are upheld in court as contracts. Prenuptial agreements do not fall into that category. When it comes to prenups, as the saying goes, “an oral agreement isn’t worth the paper it’s written on.”
The requirement that the agreement be notarized also make sense; this ensures that the signatures on the document really belong to the people who are supposed to be making the agreement.
The requirement that the agreement be voluntary also makes sense, but let's unpack what that means a little bit. This is the requirement upon which most challenges are based; in other words, a spouse seeking to have a prenup declared invalid by a court is most likely to say that while they signed it, their signature was not truly voluntary.
How do you avoid any suggestion that your prenup was signed involuntarily? There are a number of things you should do. First, don’t try to get your future spouse to sign the agreement too close in time to the wedding. Even if you don’t say a word, asking someone to sign a prenup a week or two before the wedding creates pressure: there is the unspoken implication that if they don’t sign, the wedding could be called off. How far in advance should you sign a prenup? Ideally, before invitations are sent out, so at least two months prior to the wedding.
Second, make sure your future spouse has their own attorney to help negotiate and draft the agreement, or at least to review the agreement your attorney has prepared. Otherwise, your spouse could later say they signed something without truly understanding what was in it; therefore, their agreement was not fully voluntary.
Third, make sure that you and your future spouse have disclosed to each other all relevant assets, debts, and financial information. In order for a person to agree to assume certain responsibilities or give up certain rights, they need to understand what they are actually agreeing to. A family law attorney can help you create a disclosure document.
Fourth, make sure both you and your future spouse are in a clear state of mind when it comes time to sign the document. Ideally, you will both have had plenty of time to read and review it with your attorneys and ask any questions you may have had about the meaning of certain terms. It should also go without saying that neither of you should be under the influence of alcohol or any substance at the time of signing.
In short, you don’t want to create any kind of circumstance that suggests that your future spouse did not know what they were doing when they signed the agreement, or that they felt any kind of pressure to sign.
The fourth requirement for a prenup is, of course a marriage. If you and your intended spouse decide to call off the wedding, the prenup never takes effect, and neither one of you is bound by it.
If You Need to Challenge a Prenuptial Agreement
If you are married, facing divorce, and have signed a prenuptial agreement, you may wonder if you can, or should, challenge your prenup. A prenuptial agreement can be difficult to challenge, but under certain circumstances, it may be worth it to do so.
If you did not sign the agreement voluntarily, it is not valid and you might want to consider challenging it. Likewise, you might want to challenge the agreement if you signed under duress or threat, or were induced to sign by fraud on the part of your future spouse. Lastly, if the agreement was unconscionable (grossly unfair) when signed, and you didn’t receive a full and fair disclosure of your future spouse’s finances, didn’t waive a disclosure, and had no reason to know the true situation, you should definitely speak to your divorce lawyer about challenging the validity of the agreement.
If you have questions about a Florida prenuptial agreement, whether you are looking to create one, review one before signing, or challenge one, contact Miami divorce attorney Antonio Jimenez to schedule a consultation.