It’s the Law: Pre-marital bliss — agreements that need to be checked

Q: I heard that Florida adopted a new law concerning pre-marital agreements last year. Is that correct?

A: Florida’s 2007 Legislature adopted a new law known as the Uniform Pre-Marital Agreement Act. The act is effective Oct. 1, 2007 and is codified at Section 61.079 of Florida Statutes.

The statute is a culmination of over one hundred years of litigation involving pre-marital agreements. Early pre-marital agreements were limited to property distribution and were generally held enforceable as long as financial disclosure was made prior to signing.

In 1972, The Florida Supreme Court held that a pre-marital agreement addressing spousal support was enforceable. Prior to that decision, such provisions had been held void as against public policy.

Florida’s new statute is an effort to codify Florida case law. The statute defines a pre-marital agreement as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.

The Act defines property as including but not limited to an interest present or future, legal or equitable, vested or contingent in real or personal property, tangible or intangible, including income and earnings, both active and passive.

The definition appears to be an effort to include all types of property interests and income.

The Act requires a pre-marital agreement be in writing and signed by both parties. It makes it clear that such agreements are enforceable based upon the marriage itself, and do not require any additional payment or consideration.

Pre-marital agreements are effective upon marriage of the parties. The agreement is of no effect if the parties do not marry (unless they have made other provision in the agreement itself).

Section 4 of the Act addresses content. Specifically, parties to a pre-marital agreement may contract with respect to (1) rights and obligations of each party in any property of either or both, without regard to date of acquisition or location, (2) right to buy, sell, use, mortgage, manage and control property, (3) what is to be done with property upon separation, divorce, death or other event, (4) alimony and support, (5) making of a will, trust or other arrangement to carry out provisions of the agreement, (6) life insurance, (7) what law will govern interpretation of the agreement and (8) any other matter not in violation of public policy of Florida or its criminal law. The Act makes it clear that child support, as a right of the child, may not be adversely affected by a pre-marital agreement.

After marriage, a pre-marital agreement may only be amended, revoked or abandoned by a written agreement signed by the parties.

The amendment, revocation or abandonment is enforceable without additional payment from one party to the other.

The statute specifies grounds which will render an agreement unenforceable. The burden of meeting any of the grounds is on the party against whom enforcement is sought.

Grounds precluding enforcement are (1) the party did not execute the agreement voluntarily, (2) the agreement was the product of fraud, duress, coercion or overreaching, and (3) the agreement was unconscionable when executed.

Unconscionability precludes enforcement only where the party was not provided fair and reasonable disclosure of the other party’s property or financial obligation, the party did not waive in writing any right to disclosure of property or financial obligations of the other party and the party did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.

Florida case law will have to supply the definition of such terms as duress, coercion, over-reaching and unconscionability.

Duress has been defined as a condition of mind produced by an improper external pressure that practically destroys free will. Over-reaching has been defined as what results from any quality of bargaining power in which there is an absence of meaningful choice. Unconscionability has been defined as shockingly unfair or unjust and grossly unfair. Fraud and coercion are similarly defined by Florida cases, many of them in the divorce context.

The Act provides that if a pre-marital agreement modifies or eliminates support (alimony) so that one party to the agreement becomes eligible for public assistance at the time of separation or divorce, a court may require the other party to provide support to the extent necessary to avoid that eligibility.

This provision seems to be contrary to Florida case law, which seems to enforce agreements, no matter how bad the bargain. The statutory language is not mandatory but permissive and it will be interesting to see how trial judges apply that aspect of the new law.

The Florida Supreme Court has upheld provisions in pre-marital agreement providing for award of attorneys fees to the prevailing party in litigation arising from the agreement.

One area left untouched by the new statute is temporary alimony and support.

The Florida Supreme Court has held that parties cannot waive temporary alimony or temporary attorney’s fees. But, if a pre-marital agreement has a provision for prevailing party attorney fees in action seeking to enforce or challenge the agreement, it can be the equivalent of a waiver of pre-divorce fees. No one has come up with a way to circumvent the judicial prohibition on temporary alimony waivers.

This is a complex area, even with the new statute.

If you are considering a pre-nuptial agreement or enforceability of an agreement already signed, I suggest you consult an experienced attorney for specific advice concerning your situation.

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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.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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