What is a Prenuptial Agreement?
A prenuptial agreement is a contract between two persons that are contemplating marriage that predetermines how property and other issues are to be dealt with upon divorce. Prenuptial agreements require full disclosure by both parties. This means that each party should be ready and willing to provide their present financial picture to the other. Without such disclosure, the agreement may be susceptible to legal challenge.
What are the advantages of such an agreement?
By predefining how property and other aspects of a marriage will be unwound upon divorce, the process can be far less complicated and expensive compared with going to court and mediation to resolve these issues. This is especially true since both parties are dealing with emotional issues at a time when they may not be thinking clearly. By looking at these issues when the parties can more clearly plan for the possibility of divorce in a friendly atmosphere, the resulting agreement is more likely to address the needs of each party in a logical manner.
Can you make such an agreement orally?
In the State of Florida, such an agreement is statutorily required to be in writing. Florida law recognizes the importance of putting such an agreement in writing which avoids the frequent consequence of uncertainty to agreements that are based on one’s recollection. Chapter 725 of the Florida Statutes covers unenforceable contracts and is titled “ Statute of Frauds, Fraudulent Transfers, and General Assignments.F.S. 725.
What if one does not wish to disclose their assets to their future husband or wife?
Although it may be possible for each party top waive disclosure, such is a disfavored practice and would likely subject this type of contract to greater scrutiny. The honest disclosure of assets by each party allows each spouse to fairly evaluate what they might be entitled to without a premarital agreement. A contract must not be unconscionable. A contract that’s terms “offend the conscience” may be held as invalid. Simply put, a contract must be fair in the methods used to secure the contract as well as in the terms and conditions.
What makes a prenuptial agreement fair?
An evaluation of fairness will be different in every case. The trier of fact (usually a family law judge) will likely look at whether or not the complaining party had the benefit of professional legal counsel to assist in evaluating the agreement prior to signing. It is important that the agreement be offered for each party to have ample time for reflection before deciding to enter the agreement. Such agreements are sometimes challenged based upon duress. Duress can be pressure that is exerted over time the time permitted for reflection or other present consequences presented to a party should he or she fail to sign the agreement. An extreme example would be threatening to physically harm a future spouse if they failed to sign the agreement. Intimidation without physical threats could also be viewed as duress. If just a provision of an agreement is unfair, a court may decide to invalidate that clause rather than the entire agreement.
Can the parties agree on the amount of child support to be paid in a prenuptial agreement?
Generally, the answer to this question is no. In Florida, child support is based on statutory guidelines contained in Chapter 61 of the Florida Statutes. F.S. 61. There are specific requirements today that are to be contained in a Florida dissolution order to address child support and future changes that are anticipated based on the changing ages and circumstances of the children.
Contact the Law Office of David M. Goldman with your questions and concerns about prenuptial agreements.
If you have a question about prenuptial agreements in Florida, contact the Law Office of David M. Goldman for a free initial consultation.
About the author
Neil Weinreb is a licensed Florida attorney who has been practicing family law for over 15 years in North Florida. Mr. Weinreb works for the Law Office of David M. Goldman in Jacksonville, Florida. Mr. Weinreb has worked as an adjunct professor teaching law to paralegal students at Jones College in Jacksonville, Florida. You can contact Mr. Weinreb at the Law Office of David M. Goldman for a free initial consultation today to find out how having an experienced attorney on your side can help. Call (904) 685-1200 today. Law Office of David M. Goldman, PLLC, 4115 Hendricks Ave., Jacksonville, Florida 32207. Telephone (904) 685-1200.