It’s the Law: Are prenups enforceable in Florida?

Q: My fiancé is insisting on a prenuptial agreement limiting my financial rights in event of divorce or death. Will that be enforceable in Florida?

A: In 1962, the Florida Supreme Court decided the landmark case of Del Vecchio v. Del Vecchio. In Del Vecchio, the agreement provided the wife far less than she would have otherwise received from her relatively wealthy husband’s estate. The Supreme Court did not decide if the agreement was valid, but instead remanded it to the trial court for consideration of the following tests:

1. Did the agreement make fair and reasonable provision for the wife?

2. If the agreement was inadequate, did the wife have an understanding of her rights based on a full disclosure by the husband concerning his property? And, if so, the agreement would be upheld.

3. If the agreement was inadequate and full financial disclosure was not made, did the wife have actual knowledge or should she have had a general and approximate knowledge of the character and extent of her husband’s property? If this last test was met, even if the agreement failed the first and second tests, the agreement would likely be binding.

The Supreme Court explained that in reviewing the second and third tests, the court was to determine if the wife had competent and independent advice before signing the agreement. It was later explained that this advice was not required, but was a factor that should be considered by the court.

Florida’s Supreme Court later clarified that a prenuptial agreement could be overturned by establishing it was reached under fraud, deceit, duress, coercion, misrepresentation or overreaching.

To prove duress, a challenging spouse must show (1) the agreement was not entered voluntarily and was not an exercise of free choice or will and (2) that this condition of mind was caused by some improper and coercive conduct of the other spouse. In other words, duress includes a combination of external pressure and internal loss of decision making power due to the external pressure.

Duress has to be something more than a refusal to marry unless an agreement is signed. It can be found where the agreement is presented just prior to marriage, where the complaining spouse had no attorney and/or accountant for advice or where it can be shown that the other spouse was threatening and overbearing.

To avoid the defense of duress, the agreement should be discussed and completed long before the marriage, both parties should be represented by competent attorneys and full financial disclosure should be included as part of the agreement.

If the agreement was not subject to fraud or duress, it can be challenged if it does not make reasonable provision for the spouse. A presumption arises that there was either concealment or presumed lack of knowledge by the challenging spouse of the defending spouse’s finances at time the agreement was entered. If the court agrees the agreement is unreasonable, the defending spouse must show full and frank disclosure was made or that the challenging spouse had a general and approximate knowledge of the defending spouse’s finances. The hurdles are easily met if the agreement includes a clear statement of each party’s financials and assets.

The importance of competent legal advice in this area cannot be overstated. A party desiring a prenuptial agreement needs counsel to be sure the agreement includes all matters that should be addressed. Although these agreements are enforceable, they are strictly construed and improper wording may result in unexpected liability for alimony or property distribution. The other spouse should also retain counsel so that he or she has a complete understanding of rights under Florida law and the impact of any proposed agreement on those rights.

Among its many aspects, marriage is a financial partnership. A prenuptial agreement determines terms of the partnership and should not be entered lightly.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2007 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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