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“Foreign fluency fouls.”

| Nov 8, 2019 | Prenuptial Agreements |

The benefits of translating marital agreements for nonnative English speakers in Florida

People may sign marital agreements for a variety of reasons and Florida law allows premarital, postmarital and marital settlement agreements so long as they meet legal requirements. Overarching all contracts and marital contracts in particular is that to be fair, people should understand what they are agreeing to in order to prevent gross unfairness.

In premarital or prenuptial agreements, state statute emphasizes this fairness requirement since a spouse can sign away significant property and financial interests they would otherwise have in case of divorce.

For example, a premarital agreement is unenforceable if any of these are true concerning a party:

  • Involuntary execution
  • The agreement resulted from “fraud, duress, coercion, or overreaching”
  • The agreement was unconscionable (shockingly or grossly unfair) and the party challenging the agreement did not get “fair and reasonable” disclosure of the assets and debts of the other party, did not voluntarily in writing waive the right to that disclosure beyond what was actually disclosed, and did not and could not reasonably have had “adequate knowledge” of those assets and debts

If a premarital agreement is in English and one of the spouses is not fluent in English, it could become unenforceable based on these factors. If a future spouse does not understand what they are signing, based on that language barrier, a court could find involuntary execution; signing because of fraud, duress or coercion; or execution without adequate disclosure of the other’s wealth and debts.

Courts have found marital agreements unenforceable especially when there has been no translation for a party who does not speak English in combination with other unfair circumstances:

  • A New York referee invalidated a prenuptial agreement in German where the wife had signed without a translation in reliance on her fiancé and his parents telling her it only limited her rights to the parents’ assets when it actually placed her husband’s millions of dollars in assets out of reach, according to the New York Post.
  • In a South Carolina case, a court found a prenuptial agreement was unenforceable because it was executed under duress where the Ukrainian wife had not understood the agreement in English and could not afford to hire a translator or lawyer, was pregnant and under threat of deportation from the U.S. and husband said she must sign it if she wanted to get married before her visa expired.
  • A Tennessee court found agreement unenforceable where husband presented it in English to wife just before wedding without her having access to proper translator. A 16-year-old helping with the wedding was unable to provide full translation into Spanish for her.

Similar standards would apply to a postmarital agreement (one made during marriage) or to a marital settlement agreement made in contemplation of divorce. For example, in one Florida case, the standard set out for setting aside a marital settlement agreement was to prove it was entered with reliance on fraudulent or misrepresented information or through coercion.

Up front and before its execution, having a professional translation of any proposed marital agreement so that each spouse negotiates and agrees with full understanding of the terms makes sense. Otherwise, the agreement is likely to be the subject of dispute later and could become the expensive subject of a court challenge.

 

 

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