Is a Prenuptial Agreement Valid in Florida if One Party Waives the Right to Counsel?
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A prenuptial agreement form is typically filed in the state you are currently living in. It should be filed with your county's clerk office so that it's on public record before the wedding. A prenuptial agreement is normally used in situations where one or both parties: has significant wealth or expects to receive a large inheritance, has a personal business, wish to keep all assets and debts separate, were previously married, and/or have children from a previous relationship. It is recommended that both parties consult with an attorney to ensure it is entered into fairly and knowlingly and minimize the possiblility that it may be challenged at a later date.
It can be used to accomplish many legal and financial objectives, but in general couples use it to protect separate property (a family business, for instance), support an estate plan, define what is marital or community property, reduce conflicts and save money in the event of divorce, and establish procedures for deciding future events.
In the enforcement of premarital agreements, there are three main issues that are typically addressed by a court if the agreement is challenged:
a. Was the agreement entered into voluntarily;
b. Did the parties have the opportunity to have the agreement reviewed by counsel of his/her own choosing; and
c. Was there full disclosure of all assets, liabilities and income?
If these three items can be proven, then the burden to set aside the agreement shifts to the other side (with a higher burden of proof) and the primary focus will be on whether the agreement was "unconscionable" at the time of enforcement, which shall be determined by the court as a matter of law.
A prenuptial agreement may be declared invalid under the following circumstances:
a. Unconscionability. A premarital agreement must be fair and reasonable. A premarital agreement can't cause financial hardship to the other party. Unconscionable contracts are often found to be invalid in the courts.
b. Both parties didn't have independent counsel. Each party must have his or her own lawyer. Many people mistakenly believe that they can have one lawyer represent both of them. However, each party must have his or her own legal counsel. A lawyer must make it clear to the unrepresented party that he or she does not represent him/her, and further advise them to obtain their own lawyer.
If a party needs to have the document translated due to language barriers and is prevented from doing so, this may lead to a challenge based on a lack of understanding and/or duress that prevented a fairly and knowlingly made agreement.
c. The agreement has incomplete information. There must be full disclosure when negotiating a premarital agreement. Quite often a person will try to hide some assets when he or she negotiates. If a person does not make full disclosure during the negotiation of a premarital agreement, there can eventually be strong grounds to void the agreement.
d. The agreement has false information. A premarital agreement can't be based on false and misleading financial information. A person must make full disclosure during the negotiations.
e. Invalid provisions. A premarital agreement can't limit child support or any other child support-related areas. If a premarital agreement contains clauses that try to limit child support or child support-related areas, then that specific clause will be invalidated. In most cases, the court will only strike the illegal clause, and enforce the remainder of the premarital agreement, provided that it is fair and equitable.
f. Reasonable time for consideration. The prospective spouse who is entering into a premarital agreement must have a reasonable amount of time to adequately review it. It would not be wise to give a prenup to your prospective bride or groom the day before the wedding. These agreements must be thoroughly reviewed and considered.
g. Undue pressure. Premarital agreements are often challenged once the parties get divorced. One of the most popular challenges to a premarital agreement is an allegation that a person was pressured by his or her spouse, the lawyer, or the in-laws to sign the prenup.; Some attorneys suggest that the signing of a prenup be videotaped.
h. No written agreement. All premarital agreements must be in writing. An oral premarital agreement is not enforceable.
The following are the essential requirements that must be satisfied in order for a premarital agreement to be upheld:
a. There must be full and fair disclosure of the earnings, property, and financial obligations of the parties. A complete and comprehensive financial statement must be attached to the agreement that sets forth the parties' earnings, property, and financial obligations. A CIS should also be attached to the agreement.
b. Both parties should be represented by attorneys. A premarital agreement will likely not be enforceable if the other party did not consult with an attorney, or did not waive the right to do so in writing.
c. The agreement must not be unconscionable. An unconscionable premarital agreement is defined as an agreement that would leave a spouse as a public charge or close to it.These situations are as follows:
(i) When a spouse is rendered without a means of reasonable support.
(ii) When a spouse becomes a public charge.
(iii) When a spouse is provided a standard of living far below that which was enjoyed before the marriage.
It is critically important that all parties have adequate time to review and sign a premarital agreement. A period of six to eight weeks should provide the parties with enough time to negotiate an agreement and allow everyone to reflect upon its terms at their leisure, without feeling undue pressure. While six to eight weeks is ideal, this does not mean to suggest that an attorney cannot successfully complete a premarital agreement in less time. If there is a short period of time for the preparation and negotiation of the agreement, it may be stated in the body of the agreement that the parties recognize that they have come to an understanding within a limited period of time, and feel that the time frame did not in any way affect their ability to freely and voluntarily enter into the agreement or cause them to do so under any coercion, duress, or undue pressure.
Florida law requires that the signatures of the parties to a prenuptial agreement must notarized and that each party must have the opportunity to consult with an attorney prior to signing any prenuptial agreement.
Florida Premarital Agreement Law
61.079 Premarital agreements. —
Section 1.
(1) SHORT TITLE. — This section may be cited as the "Uniform Premarital Agreement Act" and this section applies only to proceedings under the Florida Family Law Rules of Procedure.
(2) DEFINITIONS. — As used in this section, the term:
(a) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
(b) "Property" includes, but is 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.
(3) FORMALITIES. — A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.
(4) CONTENT. —
(a) Parties to a premarital agreement may contract with respect to:
1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The establishment, modification, waiver, or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership
rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
(5) EFFECT OF MARRIAGE. — A premarital agreement becomes effective upon marriage of the parties.
(6) AMENDMENT; REVOCATION OR ABANDONMENT. — After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.
(7) ENFORCEMENT. —
(a) A premarital agreement is not enforceable in an action proceeding under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that:
1. The party did not execute the agreement voluntarily;
2. The agreement was the product of fraud, duress, coercion, or overreaching; or
3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(8) ENFORCEMENT; VOID MARRIAGE. — If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
(9) LIMITATION OF ACTIONS. — Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
(10) APPLICATION TO PROBATE CODE. — This section does not alter the construction, interpretation, or required formalities of, or the rights or obligations under, agreements between spouses under s. 732.701 or s. 732.702.
Section 2. If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
Section 3. This act shall take effect October 1, 2007, and applies to any premarital agreement executed on or after that date.
Title XLII, Chapter 732, Part VII, § 732.702 Waiver of spousal rights.
(1) The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. The requirement of witnesses shall be applicable only to contracts, agreements, or waivers signed by Florida residents after the effective date of this law. Any contract, agreement, or waiver executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where it was executed, whether or not he or she is a Florida resident at the time of death. Unless the waiver provides to the contrary, a waiver of "all rights," or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, by the waiving party in the property of the other and a renunciation by the waiving party of all benefits that would otherwise pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the written contract, agreement, or waiver.
(2) Each spouse shall make a fair disclosure to the other of that spouse's estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.
(3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.
Title XLII, Chapter 732, Part II, Section 732.225 Acts of married persons. —
Sections 732.216 — 732.228 do not prevent married persons from severing or altering their interests in property to which these sections apply. The reinvestment of any property to which these sections apply in real property located in this state which is or becomes homestead property creates a conclusive presumption that the spouses have agreed to terminate the community property attribute of the property reinvested.
Title XLII, Chapter 732, Part III, Section 732.301 Pretermitted spouse. —
When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:
(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;
(2) The spouse is provided for in the will; or
(3) The will discloses an intention not to make provision for the spouse.
The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s. 733.805.