While most people do not get married with the ultimate goal of getting divorced, a divorce can become inevitable in some marriages. Prenuptial agreements are well-known documents that are created in an effort to protect assets as well as dictate how such assets are to be divided in case of divorce. For many years, they were mostly used by wealthy individuals that wanted to ensure financial security in the event that their marriage ended in divorce. However, they have recently found their way into more widespread uses as a way to help individuals feel protected when making the decision to enter into an unpredictable situation like marriage.
While their use is much more common, that does not necessarily mean that they are always prepared correctly. This is especially true when individuals try to create them without the assistance of a family law attorney that has experience drafting and handling prenuptial agreements that comply with specific Florida law governing such agreements as well as judicial decisions related to prenuptial agreements that interprets the law. A Florida court has the ability to evaluate prenuptial agreements during the divorce process. In some cases, even when both parties have signed onto a prenuptial agreement, there exists the potential for a Florida court to reject all or part of the prenuptial agreement as invalid. There are usually pretty common reasons why a court would do this, which include the examples listed below.
Signed Under Duress
Duress is a legal term that basically refers to the threat of potential harm for not complying with someone’s wishes. The harm does not necessarily have to be physical, but the threat of harm needs to be severe enough so that a reasonable person would believe that he or she had to comply with the directive given or face such harm. In Florida, it is not likely that the threat to not marry someone will qualify a prenuptial agreement to be deemed invalid for purposes of duress.
However, a situation in which duress might be found is one where proper notice was not given to the partner being asked to sign the agreement. In a situation where the agreement is presented for signature one day before the wedding, a court may find that the person being requested to sign the agreement did so out of duress because of the proximity of the wedding and feelings of inability to exercise another option. Another example of duress can be seen when there is a lack of sophistication between parties involved in the prenuptial agreement. If the person drafting the agreement uses an experienced lawyer to do so and the person being asked to sign the agreement does not have access to counsel and could not likely have gained such access, the court may find that a lack of sophistication in being able to properly understand the effect of the prenuptial agreement existed and, as such, it is invalid. It is very important that you not only use an experienced family law attorney to draft a prenuptial agreement, but that you also ensure the person signing the agreement has the ability to have that agreement reviewed by a prenuptial attorney of their own.
Lack of Full Disclosure
It is important that both sides provide a full financial disclosure before drafting and entering into a prenuptial agreement. There cannot be assets that are hidden so as to avoid addressing them in the prenuptial agreement. While many people think they are clever and can avoid making accurate disclosures of their financial status in a prenuptial agreement, it is likely that the spouses’ finances will become intermingled enough over time during the marriage that such hidden assets will come to light. Additionally, attorneys are skilled at accessing a person’s actual assets as opposed to what they may have indicated in a prenuptial agreement. If it can be demonstrated that a person’s disclosure in the prenuptial agreement was not proper or completely accurate, a court will likely deem the prenuptial agreement to be invalid.
Agreement Was Poorly Drafted
One of the most upsetting reasons for prenuptial agreements to be invalid in Florida is because they were poorly drafted. It is absolutely essential to drafting a prenuptial agreement that you enlist the services of a family law attorney that has experience drafting and handling prenuptial agreements. Basic templates downloaded from online or do-it-yourself kits are too generic for many courts and do not provide the specificity Florida judges will require. There are many nuanced requirements to prenuptial agreements in Florida, and it is important that they are taken into account in drafting a prenuptial agreement that will serve its purpose in case of divorce. While options like a kit or online form might seem appealing because they can save you money in the present, they could end up costing you a great deal in the future if they are deemed invalid by a court.
Additionally, vague and generalized prenuptial agreements often do not have enough specifics for a court to uphold them. Even if a court is willing to entertain defense of these types of prenuptial agreements, doing so can end up being very costly. While some people believe that vagueness will help them in the event a divorce occurs, it is important to note that it will likely work against you. There are many technical requirements under Florida law governing prenuptial agreements, and for an agreement to be valid it must comply with all requirements that apply to it.
Further Assistance with Prenuptial Agreements
If you have other questions regarding a current or proposed prenuptial agreement, it is important to speak to an experienced family law attorney. Prenuptial agreements can actually be tools that help partners feel more comfortable entering a marriage. In the unfortunate event of divorce, they can save time and money by demonstrating to the court the way in which assets are to be divided. However, for them to be effective they must be drafted by an effective advocate. Contact Scott J. Stadler to schedule a consultation where you will be able to find out more information about creating a prenuptial agreement, evaluating a prenuptial agreement, or for help with divorce topics like asking the court to rule a prenuptial agreement is invalid.