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Better than flowers: The abandonment of prenuptial agreements by action in Florida

On Behalf of | Feb 8, 2021 | Divorce, Prenuptial Agreements, Property Division

If your marriage is deteriorating and you anticipate divorce, you might not expect flowers for Valentine’s Day this year. But it might make you happier than flowers would have should you learn that because of the actions of you or your spouse during the marriage, provisions of your prenuptial agreement may be in jeopardy in ways that could benefit you.

Prenuptial agreements can change or become unenforceable during marriage

So, prenuptial agreements often are enforceable in a divorce, predetermining decisions on matters negotiated and agreed upon before marriage. But there are ways that prenups can become unenforceable. For example, a court could find a problem with the original execution of the agreement that makes it unenforceable such as circumstances related to fraud, coercion, misrepresentation, deceit, duress, overreaching or the failure of a party to reveal the extent of their property and other assets beforehand.

Or, the parties may amend or terminate the premarital contract in writing during marriage. For a prenup executed before Oct. 1, 2007, the law did not require a writing, so the spouses could modify or abandon the prenuptial agreement based on the intention the parties’ conduct implied.

However, sometimes the actions of a spouse can still impact the prenuptial agreement’s provisions.

Abandonment by action

A spouse’s behavior may have the unintended effect of abandoning a provision of a premarital agreement. The Florida Supreme Court decided a 2017 divorce case on this issue called Hooker v. Hooker.

The parties in Hooker executed a valid premarital agreement in which they agreed that they would each keep their own premarital, separate property if they divorced. The family lived in a Florida horse ranch during the school year and summers at a New York lake home. The husband maintained that these homes were his own separate property that he should keep after divorce according to the agreement, but the wife argued – and the court agreed – that the behavior of the husband showed an intention to gift it to the wife – called “donative intent.”

Interspousal gifts during marriage become marital property subject to equitable division. The Supreme Court agreed with the trial court that there was competent, substantial evidence of the husband’s donative intention, signified by three required findings:

  • Donative intent
  • Delivery or possession
  • Surrender of control

The husband treated these assets as the family homes for two decades. The wife lived there with her family with full access. She had control over decorating and maintenance decisions. This changed the nature of these homes to marital from premarital, so they were subject to division in the divorce rather than remaining the husband’s separate, premarital property.

By his actions, he in effect abandoned that provision of the prenuptial agreement because he changed the legal categorization of the properties so that the agreement no longer applied.

Cases like this can be unique and factually intensive. An experienced Florida family lawyer can take a close look at the premarital agreement, the circumstances surrounding its execution and the events during the marriage and provide advice about potential legal remedies and outcomes.


The LAW OFFICES OF FORREST & Forrest, PLLC represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.

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