As a family law attorney, I am constantly asked by friends and family about the benefits of entering into a prenuptial agreement and whether they are “valid”. In short, the benefits are vast and the agreements are absolutely “valid”, if properly prepared.
What is a Prenuptial Agreement?
A prenuptial agreement (“pre nup”) is nothing more than a contract entered into between the parties prior to marriage addressing what happens in the event of a divorce.
A prenuptial agreement addresses the division or property and spousal support, oftentimes based on the length of the marriage. In many cases, a prenuptial agreement includes terms for forfeiture of assets as a result of divorce on the grounds of adultery. Any issues related to children that may be born during the marriage (i.e. child support and time sharing) cannot be resolved by a prenuptial agreement.
Like in all contracts, the party seeking the enforcement of the prenuptial agreement has the burden of establishing a “meeting of the minds” (i.e. “offer / acceptance / consideration”). As a result, to have a valid “pre nup” the parties must not engage in coercion or fraud and make frank and honest financial disclosures regarding their assets, liabilities and income.
A Court should not invalidate a prenuptial agreement (no matter how “one-sided”) provided the prenuptial agreement was properly prepared, free of coercion or duress, timely executed, and with full financial disclosure.
Who Typically Requests a Prenuptial Agreement?
Theoretically, anyone can request a prenuptial agreement. That being said, prenuptial agreements are commonly prepared at the behest of individuals with: (1) very high salaries (such as athletes and actors); (2) professionals who own a business or practice (such as lawyers or doctors); (3) individuals with children from a previous marriage and/or (4) individuals who have amassed great wealth prior to the marriage either (often by inheritance, previous divorce, or retirement account).
Should the Husband and Wife Each Have Their OWN Lawyer?
YES. Prenuptial agreements can be complicated. As a result, it is tremendously important for both the Husband and the Wife to have their own advocate to explain what, in fact, they are agreeing to and to protect their interests. It is a mistake to rely upon the advice and recommendation of your “adversaries” lawyer. Like a contract, a party cannot come back at a later time and claim nativity for entering into a “pre nup” without fully understanding its terms. “Buyer’s remorse” is not a defense to the validity of a “pre nup”.
A prenuptial agreement should always be prepared by an experienced family law attorney to avoid any inconsistencies which could lead to future litigation.
Are Prenuptial Agreements Ever Contested?
YES. Our family law attorneys are frequently contacted by individuals wanting to contest the terms of their prenuptial agreement. In some cases, the parties could be disagreeing over tens of thousands of dollars, if not millions of dollars. Primarily, the contesting party claims duress, coercion or fraud or (in cases where the prenuptial agreement was not prepared by a lawyer) inconsistent or vague terms.
Duress is defined as “threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment”. Coercion is defined as “the practice of persuading someone to do something by force or threat”.
Would Duress and/or Coercion Invalid a Prenuptial Agreement?
Yes … however …
In Florida, although a trial court will not enforce a prenuptial agreement obtained by duress or coercion, a trial court should not invalidate a prenuptial agreement if the contesting party merely shows that he/she was emotionally upset or faced with a difficult decision about whether to sign.
Stated another way, it is unlikely a trial court will invalidate a prenuptial agreement for duress or coercion if the future husband/wife told his future wife/husband that no wedding will occur in the absence of a prenuptial agreement provided the future husband/wife does not use force or threat. There is nothing improper about one party taking a position that they will not marry the other party without a prenuptial agreement provided no other exception applies.
It should be noted that a “pre nup” should be prepared and provided to the other party before the marriage to allow the non-requesting party sufficient time to review and understand the terms. If a “pre nup” is prepared and executed in “close” proximity to the wedding it could be a basis to invalidate the “pre nup”. It is extremely important to have the “pre nup” executed with as a much time as possible in advance of the wedding to avoid the appearance of impropriety.
A trial court would likely invalidate a prenuptial agreement if the evidence shows that the purported victim of coercion was mentally incompetent or was not capable of understanding the situation or exercising good judgment, however.
As a result, and unlike the previous example, a family law judge may be inclined to invalidate a prenuptial agreement if the claims were that the future husband threatened to cancel the wedding if his future wife refused to sign a 50 page prenuptial agreement (prepared by his team of lawyers) just minutes before she is set to walk down the aisle. In this example, the future husband never advised his future wife that he would be seeking a prenuptial agreement and sprung it on her last minute without a chance for her to retain a family law attorney or review his financial disclosure. In this case, the future wife may not have been capable of exercising good judgment considering the circumstances and severity of the actions.
Another example of where a family law judge may invalidate a prenuptial agreement is where the husband (wife) threatened to publish a picture of the wife (husband) committing adultery if she (he) refused to sign the prenuptial agreement.
Would Fraud Invalid a Prenuptial Agreement?
Yes … however …
Fraudulent inducement is commonly plead, particularly concerning financial disclosure. Fraudulent inducement could invalidate a prenuptial agreement if (1) the representations were false when made; (2) the defrauding party knew, or should have known of the falsity of such representation; (3) that it was intended that the alleged representation would induce the other party to rely thereon; and (4) that the defrauding party suffered injury in justifiable reliance on such alleged misrepresentation. In other words, the fraud must be material and justifiably relied upon to establish fraud. Claiming that that one party valued a beach house at $17,000,000.00 where the beach house was actually appraised at $16,950,000.00 would not be considered material to invalidate the prenuptial agreement. Not disclosing the beach house could be considered material to invalidate the prenuptial agreement, however.
Of note, prenuptial agreements entered into in violation of public policy are void. For example, a Court will likely reject a provision of a prenuptial agreement that waives all child support or awards sole timesharing to one parent in the event that it is not in the best interest of the children. In Florida, a Judge will not uphold a provision of a prenuptial agreement that waives temporary attorney’s fees and alimony as temporary alimony and attorney’s fees cannot be wavied.
Family law attorney Sean Collin has experience preparing and reviewing prenuptial agreements for both future Husbands and future Wives. Oftentimes, the requesting party (the party with significantly higher assets) will agree to pay the attorneys fee for their future spouse. Before entering into prenuptial agreement, please call our prenuptial agreement attorneys at Lyons, Snyder & Collin for a free consultation. It could be the most important phone call you ever make.