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Premarital agreement pitfalls: Don’t rush and vague Florida requirements, part 2

| Nov 3, 2020 | Prenuptial Agreements |

In part 1 of this post, we introduced prenuptial agreements – what they are, why people use them and why Florida law is very particular about its requirements for valid antenuptial agreements between prospective spouses.

Do not rush into an antenuptial agreement

There are so many reasons not to hurry the prenuptial agreement negotiation and drafting process. First, while the couple is likely to have discussed the provisions they want to consider, each should have their own legal counsel to advise them separately about what their marital rights will be as well as the pros and cons of the terms they are considering. Signing without this understanding could put the person into a devastating position in the future.

Rushing into a prenup could result in the agreement being unenforceable. If the spouse challenging the agreement’s validity can prove that certain conditions existed at signing, the court may find the prenup unenforceable:

  • Involuntary signing
  • Agreement was the result of fraud
  • Agreement resulted from duress
  • Spouse was coerced into agreeing to the terms
  • Other party was overreaching, meaning they used trickery, cheating or some other extreme behavior to get the agreement signed

When marrying parties and their attorneys spending adequate time with the negotiation, drafting, review and finalizing process for a premarital agreement, these bad faith behaviors that put the validity of the agreement into question are more likely to become obvious to all involved.

Disclosure of property and debt

Another basis for unenforceability of a Florida prenuptial agreement in response to historical abuses of the process is when the agreement was unconscionable (extremely unfair) at the time of execution and one of the spouses did not provide to the other a “fair and reasonable disclosure” of their assets and debts.

In other words, one spouse signed potentially not knowing of the wealth of the other or that the other was in serious debt. Both situations could seriously have impacted the negotiations and willingness to sign.

What does fair and reasonable disclosure entail?

A related issue is the generality and vagueness of the terms “fair” and “reasonable” as they relate to disclosure of property and liabilities. People could easily interpret these two terms differently in this context and that could result in an agreement being unenforceable should a court decide disclosure was unfair or unreasonable.

To increase the chances of a premarital agreement being enforceable, parties to the contract should err on the side of being as complete as possible in disclosing assets and debts before the prenup is negotiated and signed. Even if this is time-consuming and expensive, the effort will go a long way toward protecting the agreement’s validity. The more detailed and thorough the disclosure, the more likely it is fair and reasonable under Florida law.

 

 

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