When Is a Premarital Agreement Considered Invalid in Florida?
Florida couples enter into prenuptial/premarital agreements for a variety of reasons. For example, if you or your partner or both of you have a significant amount of wealth, you might be contemplating entering into a prenuptial agreement. A prenuptial agreement will protect you and your partner’s property rights in the event of divorce.
Years ago, prenuptial agreements were used primarily by the wealthy; however, today they are very common for persons of all financial circumstances. It was previously common to see one party to find the suggestion of a prenuptial agreement to be insulting but again, times have changed substantially and those perspectives are becoming archaic.
Although prenuptial and similar agreements can be extremely difficulty to set aside or void, it can be done in certain circumstances. There are various legal reasons to set aside such an agreement but in each case, the analysis is fact intensive or it is reviewed based on certain legal requirements.
Before entering into a prenuptial agreement, it is important that each party retain counsel to ensure the document is validly executed, timely executed, and that it follows both the legal requirements and the execution requirements. Below are four common situation where a Florida judge might have the discretion or authority to void a prenuptial or similar agreement.
- Fraud/Omission
When preparing a prenuptial agreement, each party is required to also fully disclose and provide his and her income, assets and liabilities, including potential future “contingent” assets and liabilities. A financial statement must be completed and all underlying financial records must be provided with the agreement or made available for reasonable inspection by the other party. This process is known as full and honest disclosure. If one party fails to strictly comply with these requirements, it can be a basis to void a prenuptial agreement. The court may find the first party has committed fraud upon the other party, which opens the door to having sanctions, fees and other penalties imposed upon the party who committed the fraud.
- Duress/Diminished Capacity/Intoxication
Both parties signing a premarital agreement must do so willingly and without facing coercion. It is challenging to prove duress or coercion, but when a party shows that he or she did not voluntarily sign the prenuptial agreement, a judge might void the prenuptial agreement. For example, if one party presents a prenuptial agreement to the other party the night before the wedding and demands it be signed or the wedding will be cancelled, this is considered a form of duress. In Florida, judges want to see the agreement signed a reasonable period of time prior to the wedding.
Additionally, a judge might consider voiding a prenuptial agreement if one party lacked the mental capacity to comprehend the prenuptial agreement when that party signed it. A person need not be incompetent for relief. For example, a judge might consider the case of an individual who signed his/her prenuptial agreement when ill and under the influence of certain types of medication.
Lastly, each person signing a prenuptial agreement must not be under the influence of alcohol or drugs, to the extent it interferes with that person’s ability to understand and evaluate the Agreement. In fact, this can be considered an aspect of diminished capacity
- The Prenuptial Agreement Was Signed Without Legal Representation
It is not wise to sign a prenuptial agreement without legal representation. Each party should hire his or her own counsel to guide and assist him/her through the process. Each party has different and competing interests. The prenuptial agreement should be prepared and reviewed by the attorney for each party.
If there are other concerning circumstances regarding the drafting of the prenuptial agreement or its execution or disclosure, then the disadvantaged party not having counsel may concern the court and form the basis to void the prenuptial agreement. Despite this, just because one party did not hire counsel is not an automatic reason to void a prenuptial agreement. In Florida, persons who proceed with legal documents and choose not to hire counsel do so at their own peril. Therefore, it is crucially important to hire counsel to assist with any prenuptial or similar agreement.
- The Prenuptial Agreement Is Oral and Not Written
Oral prenuptial agreements are not valid in Florida. Valid prenuptial agreements must be in writing. Additionally, there is a strict process regarding the execution of the prenuptial agreement. Thus, any oral agreement will not be honored in Florida.
Contact a Jacksonville Premarital Agreement Attorney Today
If you need help getting out of an unfair prenuptial or similar agreement or preparing and implementing one, contact a Jacksonville prenuptial agreement lawyer at The Lasky Law Firm today to schedule a consultation.
Resources:
forbes.com/sites/jefflanders/2013/04/02/five-reasons-your-prenup-might-be-invalid/?sh=35f20d1019a5
flsenate.gov/Laws/Statutes/2012/61.079#:~:text=(a)%20%E2%80%9CPremarital%20agreement%E2%80%9D,to%20be%20effective%20upon%20marriage.&text=%E2%80%94A%20premarital%20agreement%20must%20be,other%20than%20the%20marriage%20itself
