Did you know that not too long ago many states prohibited the use of prenuptial agreements? That may seem strange today, but the reasoning in our society a few decades ago was that prenuptial agreements made married couples more likely to divorce.
That rationale, of course, has changed. The concern about prenuptial agreements never came to fruition, as the existence, or lack, of an agreement before marriage, has had no bearing on the longevity of marriages. In fact, some would argue that the existence of a prenuptial agreement has strengthened some marriages. The idea being that not having to use an agreement surrounding the end of marriage proves just how solid the couple is as a romantic unit.
Overall, prenuptials have great benefits, the primary of which is allowing couples to choose their own financial destiny and bring some certainty in the sad event of a divorce. Hence, all 50 states in the U.S. now allow couples to enter into prenuptial agreements.
Our firm Doane & Doane, which employs only the top Palm Beach, Florida attorneys, has dealt with many prenuptial agreement cases and helped draft such agreements for our valued clients. Indeed, the prenuptial agreements we have helped draft have made the challenges of divorce that much easier because of the clarity and certainty they provide in an otherwise difficult, emotional time.
If you would like to learn more about the possibility of getting a prenuptial agreement or even have an issue with an existing one, call us. Our expert Doane & Doane attorneys can guide you through the many obstacles in drafting or interpreting a prenuptial agreement. We invite you to call us at 561-656-0200 and schedule a free consultation.
In this blog, we will cover what ensures that prenuptial agreement is, in fact, legally binding in Florida, and will discuss some other need-to-know facts about the prenuptial agreement in Florida.
Ensuring a Prenuptial Agreement is Enforceable in Florida
Handling a prenuptial agreement can be different from state to state. Accordingly, Florida has its own set of rules about what people need to do to ensure that prenuptial agreements, often called “premarital agreements” in Florida, are legally binding.
To begin, there is something called the Uniform Prenuptial Agreement Act. That Uniform Act is not a law, per se. Rather, it is like a template or example of what a piece of legislation would look like with regard to prenuptial agreements. It was drafted by lawyers and legal scholars as a way in which to help states enact their own legislation. The existence of such Uniform Acts has several benefits:
1. They assist states in drafting legislation in certain areas of the law,
2. It helps ensure that the legislation actually passed by a state legislature covers all possible contingencies,
3. It promotes some uniformity among states by allowing a state to adopt all or some part of the Uniform Act as the law of that state.
In 2007, the State of Florida adopted the Uniform Prenuptial Agreement Act in large part as the law of Florida on prenuptial agreements.
For a prenuptial agreement to be enforceable in Florida, the Florida prenuptial law has the following requirements:
1. The prenuptial agreement must be in writing,
2. It must be signed by both spouses,
3. There needs to be a certain number of witnesses to the agreement,
4. The agreement needs to be notarized, and
5. It does not take effect until the couple marries, because, technically speaking, the terms of the contractual agreement are given in exchange for marriage.
In addition, each party should have its own independent counsel when executing a prenuptial agreement. Both parties should have plenty of time to consider the agreement, and neither party should be coerced into signing the agreement. Further, both parties should disclose their assets fully and fairly.
If all of the above are present in the execution of a prenuptial agreement, then it is highly likely that the prenuptial agreement will be legally binding and enforceable.
When Will a Prenuptial Agreement Found to be Unenforceable?
Typically, in Florida, a prenuptial agreement will be found to be unenforceable if a spouse did not sign the agreement voluntarily, or if the agreement was signed only under duress or coercion. In addition, a prenuptial agreement is not legally binding if it was only signed due to fraud or misrepresentation by one party.
In addition, if an agreement is extremely unfair, in legal terms if the agreement was “unconscionable,” then it can be deemed unenforceable. Some examples of when an agreement is unconscionable can include situations in which:
1. A spouse was not given proper, honest disclosure of the other spouse’s financial assets,
2. A spouse did not waive in writing the right to receive full and fair disclosure of the other spouse’s assets and debts, and
3. A spouse did not, and could not, have knowledge of the other spouse’s financial situation.
4. Remember, just because a prenuptial agreement leaves one spouse with much more wealth than the other does not necessarily mean that a court will find the prenuptial agreement unconscionable. Unconscionability is a difficult standard to meet.
5. That being said, if an agreement is so one-sided that a spouse will be forced to go on public assistance to survive, then the court may order that the wealthier spouse pay some type of support to the spouse in poor financial circumstances.
6. s unenforceable, there is the challenge of proof. A spouse, for example, must prove to the court that he or she was no given proper disclosure of assets, and did not waive that right. Or the spouse must prove that he or she did not sign the agreement voluntarily. All of these circumstances come with their own set of issues when trying to establish proof. That is why having an experienced Palm Beach, Florida attorney is so important in these cases.
Contact a Seasoned Palm Beach, Florida Attorney to Assist You
It takes some effort to ensure that a prenuptial agreement is legally binding. At Doane & Doane we make sure that we cross all the “Ts” and dot all of the “Is” to make sure the agreement is solid. If you are looking for advice on whether you want to enter into a prenuptial agreement, call us today at 561-656-0200.