Divorce Attorney Scott J. Stadler

    • 28 JUN 18
    Avoiding Prenuptial Agreement Pitfalls

    Avoiding Prenuptial Agreement Pitfalls

    Prenuptial agreements were traditionally marital contracts that were relegated to the wealthy and elite. They still play a significant role in celebrity and other high-profile divorces. However, prenuptial agreements are much more common than many people may realize. Prenuptial agreements have become more accessible to the general public, and with the variety of nontraditional marriages and families that exist today, they are becoming less mysterious.

    Unfortunately, prenuptial agreements still have a bad reputation. They are a difficult topic to bring up and consider, but they can play a much more important role in a marriage than many people think. While people may want to avoid discussing prenuptial agreements because they fear the backlash and fighting that could result, prenuptial agreements can actually provide a sense of security in a marriage. Prenuptial agreements are not plans to fail, but they are plans you can put in place in case a worst-case scenario arises.

    For many people considering marriage, prenuptial agreements may be a topic that needs to be discussed. If you are considering a prenuptial agreement or are have already chosen to enter into one, it is important to recognize some common pitfalls that could result in invalidating your prenuptial agreement in whole or in part during the divorce process, should the need for the prenuptial agreement ever arise. Understanding the general requirements of prenuptial agreements is a good place to start.

    General Prenuptial Agreement Requirements

    Prenuptial agreements are subject to the guidelines of the state in which they are entered into. However, most states have the same basic requirements which can include:

    • The agreement must be in writing;
    • The agreement must be signed by both parties and usually must be witnessed or notarized;
    • The agreements are subject to a full and complete disclosure of assets by both parties; and
    • Each party must have access to independent legal counsel during the prenuptial agreement process.

    There are other important nuances that can affect the validity of a Florida prenuptial agreement that depend heavily on your individual circumstances. An experienced Florida family lawyer who understands these nuances can help you understand how they may impact your agreement and your marriage.

    Lack of Full Disclosure

    Many individuals considering prenuptial agreements are concerned about the aspect of fully disclosing their finances. However, doing so is essential to creating a successful agreement. Squirreling away money or leaving out assets could result in the agreement being thrown out should the need to enforce it ever arise.

    It is in both individuals’ best interest to comply with a full and complete disclosure. While this might seem to some as giving away too much information, it is ultimately a mechanism for protection because it can help specify exactly what your premarital assets really are should there be a discrepancy about them down the line.

    Unconscionable

    While creating a prenuptial agreement that is fair and balanced should always be one of the factors considered during the creation of a prenuptial agreement, many times prenuptial agreements will be biased toward one party over the other. This is especially the case in situations where there is a large discrepancy in income and/or net worth.

    While favoring one party over the other is not illegal, an agreement that is excessively one-sided could be found to be unconscionable. Courts will not enforce an unconscionable agreement, so it is extremely important to approach a prenuptial agreement with reasonable expectations along with clear goals and objectives.

    Lack of Detail

    While a wholly one-sided agreement is not likely to be enforced, an overly broad agreement probably will not, either. A prenuptial agreement cannot be so general that the language seems ambiguous or broad. Making sure the agreement is detailed enough but does not go so far as to be unconscionable is one of the reasons working with an experienced Florida prenuptial agreement lawyer is so important.

    Illegal or Unenforceable Provisions

    Like other contracts, prenuptial agreements cannot be used to compel an individual to do anything against his or her will, nor can they be used to encourage or require any illegal activities. At the same time, prenuptial agreements should avoid unenforceable provisions like requiring one specific party to do the laundry every Saturday or requiring the other spouse not to become hospitalized for an extended period of time. These sorts of provisions muddle the agreement and lend it to being invalidated because terms like these are not enforceable.

    Provisions Regarding Child Custody or Support

    Decisions about child support are subject to the existing state child support schedule, and all states prohibit the inclusion of child support stipulations in a prenuptial agreement. Likewise, provisions regarding custody of marital children are also prohibited because decisions regarding custody of these children during and after divorce must be made with the child’s best interests in mind.

    Lack of Independent Legal Counsel

    Many people think that prenuptial agreements are simply agreements between spouses and that spouses can enter into them as they please. Free or low-cost generic forms are widely available but do not always fulfill the legal requirements such agreements are subject to. This is not the case, and some high-profile prenuptial agreements have been thrown out completely because of lack of legal counsel for one or both parties.

    Most states, including Florida, require that both parties have access to independent legal counsel. This is important to ensure that both parties fully understand the legal implications of the agreement. Prenuptial agreements can have long-lasting effects on a person’s future and finances, so ensuring that the individuals entering into those agreements understand their rights and are able to advocate for them in negotiating the agreement is essential.

    Working with an experienced Florida prenuptial agreement lawyer that understands the important nuances of state law governing these agreements is often an important component of a successful prenuptial agreement. A solid, positive, and productive approach to creating a prenuptial agreement can make such an agreement far more likely to be enforced and can help it become a source of understanding for your marriage rather than a source of animosity. If you are considering a prenuptial agreement or want to know more about whether an existing agreement might be unenforceable, contact Scott J. Stadler to schedule a consultation and see how our firm can work with you to explore your options when it comes to prenuptial agreements.