Florida Prenuptial Agreements Overview

This Florida Prenuptial Agreements Overview explains what you need to know about how your prenuptial agreement might be set aside or enforced in your divorce.

Many people believe that if they signed a prenuptial agreement before getting married, then that agreement automatically governs their divorce. Unfortunately for some, and fortunately for others, the mere fact that a prenuptial agreement was signed does not mean the judge in your case will require it to be followed.

In some cases, it is possible for you or your spouse to convince a judge to invalidate the agreement, meaning that your divorce will proceed as if the prenuptial agreement never existed.

The issue of whether a judge can set aside/invalidate Florida Prenuptial Agreements can be the difference between one spouse leaving the marriage with nothing or with millions of dollars.

For this reason, disputes over the validity of prenuptial agreements are much more likely to be litigated and taken to trial than most other issues that arise in a divorce.

In deciding this litigation, Florida and many other jurisdictions operate under some version of the Uniform Premarital Agreement Act. Under this law, a prenuptial agreement will not be enforced if any of the following scenarios are proven: (1) either spouse did not voluntarily sign the agreement; (2) the agreement was the “product” of fraud, duress, coercion, or overreaching; or (3) the agreement was “unconscionable” when signed, and before the agreement was signed, there was not an adequate exchange of financial disclosure, an intelligent waiver of financial disclosure, or reasonable knowledge of the other spouse’s finances.

For Florida prenuptial agreements signed before 2007, a different framework applies in Florida that makes it slightly easier to invalidate a prenuptial agreement.

Also, some jurisdictions will not recognize a prenuptial agreement if the conduct of the spouses during the marriage indicates the spouses chose to abandon the agreement.

The issue of whether Florida prenuptial agreements are enforced or invalidated requires an extremely fact intensive analysis. The main issues typically explored in this analysis are discussed in greater detail below, and include: (1) did both spouses have lawyers or access to lawyers; (2) did each spouse have the legal “capacity to contract” without “external pressures” putting either spouse in unequal bargaining positions; and (3) did each spouse have a solid understanding of the other spouse’s finances to allow them to reasonably evaluate the terms of the agreement.

Access to lawyers:

It is easier to convince a divorce court judge to invalidate (not recognize) Florida prenuptial agreements if it is shown that one spouse did not have a lawyer or the ability to access a lawyer to help them review the agreement.

In other words, if a prenuptial agreement prepared by your lawyer was given to your spouse in a situation where they did not have any real ability to find legal counsel, it is probably going to be easier for your spouse to argue that circumstances of the agreement were unfair, and the agreement should be invalidated.

However, the fact that you or your spouse did not have a lawyer does not, by itself, mean the prenuptial agreement will be invalidated. If it is proven that a spouse could have hired a lawyer but chose not to do so, then the “I didn’t have a lawyer defense” will probably fail.

Capacity to Contract & External Pressures:

Florida prenuptial agreements are usually invalidated when one party is shown to have lacked the legal capacity to contract. As an example, if a spouse was intoxicated or shown to be temporarily insane when they signed the agreement, the intoxication or insanity should serve as a valid defense to the prenuptial agreement contract. 

The “external pressures” defense is essentially a sub-set of the “incapacity to contract defense.” The legal verbiage sometimes used to describe the “external pressures defense” includes “duress”, “coercion”, “overreaching”, and “undue influence.” Except in cases where a spouse literally had a gun to their head when they were given the prenuptial agreement (which I have yet to see), this defense comes up most commonly when a prenuptial agreement is signed close to a wedding. If an agreement is given to a spouse the day of the wedding, or very close to a wedding, it is possible to successfully argue that the spouse was under “duress” and other “external pressures” and thus, lacked the capacity to contract.

Whether Florida prenuptial agreements can be invalidated for being signed close to a wedding requires a thorough analysis of the history of the negotiations, relative competency of each spouse, and fairness of the contract.

The fact that a prenuptial agreement was signed close to a wedding is not dispositive. A relatively fair agreement that was negotiated over several months, and signed close to the wedding between two legally sophisticated spouses, is much more likely to be enforced than an agreement that was first discussed on the wedding day, where one spouse was not legally sophisticated and lacked knowledge of the other spouse’s finances when signing the agreement.

A hurdle to the “incapacity to contract” or “external pressures” defenses to Florida prenuptial agreements is showing the agreement was not “ratified” during the marriage. “Ratification” occurs when people take affirmative action to reaffirm their commitment to a contract they might otherwise have invalidated due to an “incapacity to contract defense,” “external pressures defense,” or another legal defense to a contract. When a prenuptial agreement has been ratified, the agreement usually cannot be invalidated under the “incapacity to contract” or “external pressures” doctrines.

The determination of whether a prenuptial agreement has been ratified usually comes down to determining whether the party seeking to invalidate the agreement accepted any material benefits due to them under the agreement that they would not otherwise be obligated to receive in absence of the agreement.

As an example, if a wife was due a high monthly spending allowance under a prenuptial agreement, and after signing the agreement and getting married, accepted the monthly spending allowance each month during the marriage, it is likely to be determined that the wife “ratified” the prenuptial agreement by her conduct of accepting the high monthly spending allowance. If this was the case, the wife in this example would probably not be allowed to argue the “incapacity to contract defense” in her divorce. The theory behind this is that, the wife, though she lacked the capacity to contract, should have tried to get out of the contract, instead of following it for the entire marriage.

Disclosure of Finances:

For Florida prenuptial agreements signed after 2007, under the Uniform Premarital Agreement Act, it is possible to waive all disclosure of finances in connection with a prenuptial agreement. However, if the agreement was not signed before 2007, or did not explicitly state that financial disclosure was waived, then the agreement can be set aside if there was no reasonable exchange of financial disclosure between both parties. For a spouse to set aside an agreement on account of a lack of financial disclosure, they usually must prove both that (1) the terms of the agreement were “unconscionable” and (2) that they did not have a reasonable idea of their spouse’s finances at the time they signed the agreement. 

In other words, in most cases, courts will not set aside a fair prenuptial agreement on account of there being a lack of financial disclosure. Also, a spouse cannot seek to invalidate a prenuptial agreement based on insufficient financial disclosure, if it is proven they had a clear understanding of the details of their spouse’s finances when the agreement was negotiated.

Although some of the law relating to Florida prenuptial agreements and whether they can be enforced or set aside, appears to be “common sense,” remember that only the basics of the law are covered here. As the saying goes, “the devil is in the details.” The bottom line is that, if there is a prenuptial agreement at play, you will need to thoroughly review the facts and circumstances of the negotiation and terms of the agreement with your divorce lawyer, to determine whether the agreement is likely to be enforced.

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