Prenuptial and Postnuptial Agreements

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Prenuptial and postnuptial agreement attorneys Sean L. Collin and Nabeel K. Basit advise and counsel individuals considering a prenuptial agreement prior to marriage and postnuptial agreements after a marriage. The benefits of these types of agreements are vast. Prenuptial and postnuptial agreements are absolutely “valid” if properly prepared.

What is a prenuptial agreement? 

A prenuptial agreement (or otherwise known as a “pre-nup”) is simply a contact entered into between the parties prior to marriage addressing what happens in the event of a divorce.

What is a postnuptial agreement?

A postnuptial agreement (or otherwise known as a “post-nup”) is simply a contact entered into between the parties during the marriage addressing what happens in the event of a divorce.

Prenuptial and postnuptial agreements address spousal support and the division of property. Oftentimes spousal support is 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. time-sharing and child support) 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 it is essential that the parties make frank and honest financial disclosures regarding their assets, liabilities and income to one another. A prenuptial agreement should be signed and executed many days before the parties’ date of marriage. If the parties sign their prenuptial agreement very close to their date of marriage, then this could be a reason for one party to challenge the validity of the prenuptial agreement down the road. The marital and family law attorney’s at Lyons, Snyder & Collin will normally require that the signing of the prenuptial agreement be videotaped or have a court reporter present to ensure that one party cannot contest the prenuptial agreement in the future.

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 and frank financial disclosure.

Prenups are not only for the “very rich”?

Prenuptial agreements are not only for the “very-rich”. Theoretically, anyone can request a prenuptial agreement. Our marital and family law attorneys have prepared prenuptial agreements for the aforementioned “very-rich” in addition to individuals on second marriages or individuals with limited incomes but who want to define the terms of their marriage in the event they come into significant monies (i.e. inheritance, sale of business, etc.) during the marriage.

For the most part, however, prenuptial agreements are 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, accountants or doctors); (3) individuals with children from a previous marriage and/or (4) individuals who have amassed great wealth prior to the marriage often by inheritance, previous divorce, or retirement account.

Can an attorney represent the husband and wife?

Prenuptial and postnuptial agreements can be complicated. As a result, it is important for both the Husband and the Wife to have their own advocate (attorney) 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” attorney. Like a contract, a party cannot come back at a later time and claim nativity for entering into a “pre-nup” or “post-nup” without fully understanding its terms. “Buyer’s remorse” is not a defense to a pre-nup’s or post-nup’s validity.

A prenuptial agreement or postnuptial agreement should always be prepared by an experienced marital and family law attorney to avoid any inconsistencies which could lead to future litigation. Our marital and family law attorneys have equally represented Husbands and Wives. Additionally, our marital and family law attorneys have equally represented the spouse with the greater assets and the spouse with the lesser assets.

Although one attorney should not represent both parties, it is not uncommon for the party with the greater assets to pay the attorney’s fees for the other party with the lower assets so they can retain their own attorney to review the agreement.

Why do I even need an attorney? – Can’t I print something out online?

It is always a mistake to enter into a prenuptial or postnuptial agreement without the advice of an attorney. Our marital and family law attorneys are frequently contacted by individuals wanting to contest the terms of their prenuptial agreement. In some cases, the parties are 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. We have successfully invalidated pre-nups that were incorrectly prepared.

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 the prenuptial prior to the parties’ marriage.

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 a wedding will not 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 date 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 70 page prenuptial agreement (prepared by his team of attorneys) 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 her own family lawyer to review her future husband’s 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 untrue 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 vacation house at $15,000,000.00 where the beach house was actually appraised at $14,500,000.00 would not be considered material to invalidate the prenuptial agreement. Not disclosing the vacation 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 waived.

Where should I start?

Sean L. Collin and Nabeel K. Basit have experience preparing and reviewing prenuptial agreements for both future Wives and future Husbands. 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 or postnuptial agreement, please call one of our marital and family law attorneys at Lyons, Snyder & Collin for a free consultation. It could be the most important phone call you ever make.

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