Pre-Nuptial Agreements

On behalf of Eisenmenger, Robinson & Peters, P.A. posted in Family Law on Tuesday, June 16, 2015.

Pre-Nuptial Agreements (i.e. Ante-nuptial Agreements) are a part of a family lawyer’s practice that requires great care, knowledge and experience.  Any Pre-Nuptial Agreement can be contested years later in a divorce or probate case. The sums of money at stake, if a Pre-Nuptial Agreement is determined to be invalid or portions of the agreement unenforceable, can be vast.  The risk of the agreement being determined invalid must be considered by the attorney and client alike, when the agreement is negotiated, drafted and executed.

Dealing with that risk and avoiding the consequences of an invalid Pre-Nuptial Agreement requires one understand what can and cannot be accomplished with a Pre-Nuptial Agreement.  Two Statutes are primarily involved, Florida Statutes §61.079 and Florida Statutes §732.702.  Florida Statutes §61.079 applies only to proceedings under the Florida Family Law Rule of Procedure.  (For the layperson, an action to dissolve a marriage).  Florida Statutes §732.702 relates to the effect of a Pre-Nuptial Agreement on a probate matter after one spouse has died.

Essential to an agreement’s validity is that one lawyer or law firm not provide advice to the future husband and wife.  Each party should be represented by separate counsel.  The agreement should be negotiated and drafted weeks before the marriage ceremony.  The courts have held hastily drafted agreements first given the other spouse days before the wedding to be invalid due to duress. Although Florida Statutes §61.079 provides that disclosure of each spouse’s respective financial position may be waived, it is advisable to do full and fair disclosure of each party’s assets, debts and income before the agreement is signed.

For most clients, we recommend some financial provisions be made for the less wealthy spouse.  We further recommend that our client pay for the future spouse’s legal fees, so that the other spouse has counsel while negotiating the agreement.

Each Pre-Nuptial Agreement is unique and suited to the individual client’s needs and plans for the future.  These agreements attempt to provide for contingencies and circumstances that may arise decades into the future.

Before hiring an attorney to draft a Pre-Nuptial Agreement, ask how many they have drafted and if they have ever been to trial over a Pre-Nuptial Agreement. Experience in this area matters.  If you encounter a lawyer who charges a minimal sum to draft one of these complicated agreements, you have found a lawyer who does not know what they are doing.