Prenuptial agreements are agreements that two people enter into prior to marriage which attempts, usually successfully, to alter the distribution of property, award of alimony or award of attorney's fees in the event of a divorce. People enter into pre-nuptial agreements for many reasons, but the most common reasons are in order to ensure that pre-marital assets or business remain non-marital, or to ensure that property purchased during the marriage remains the property of just one spouse.
Prenuptial agreements are typically enforced. That said, there are instances where the whole agreement is found invalid or a portion of the agreement is found invalid. The entire agreement may be challenged on two bases. The first is by showing the Court that the agreement was the product of "fraud, deceit, duress, coercion, misrepresentation, or overreaching." Casto v. Casto, 508 So.2d 330, 333 (Fla.1987). This is the most common and most successful basis of challenging a pre-nuptial agreement and the most commonly successful.
The most common reason our Courts find to set aside a prenuptial agreement, or find the agreement unenforceable, is lack of full and complete disclosure. One of the ways you best avoid this type of an attack on the validity of the agreement is by ensuring FULL AND COMPLETE disclosure of all assets to one another. Another safeguard is to make sure the other party has adequate time to review the agreement and seek the advice of counsel with any questions or concerns.
The second basis attempts to prove that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. This is very rarely a successful attack on pre-nuptial agreements. However, when successful "[t]he element of fairness should, of course, be measured as of the time of the execution of the agreement." Hahamovitch v. Hahamovitch, 133 So. 3d 1008, 1011 (Fla. Dist. Ct. App.).
A pre-nuptial agreement is an extraordinarily important document and the law in this area is ever evolving additionally, there are many things to consider in the preparation of a prenuptial agreement. While there are many do-it-yourself document preparation sites that are relatively low cost, when it comes to such an important contract you often get what you pay for and nothing can replace the informed advice and assistance of an experienced family law attorney in the preparation of such an agreement.
Check back soon for Pre-Nups Part II.