Premarital Agreements in Divorce Explained

What Is a Premarital Agreement?

In Florida, prenuptial agreements are called premarital agreements. Many couples decide on premarital agreements to protect their assets and their financial futures. These agreements are contracts that were made between prospective spouses before marriage, cover each of their financial rights and obligations during the marriage, and define how certain issues such as alimony and property division will be treated if the marriage ends in divorce. If you have a premarital agreement and are considering divorce, this is one of the first things that should be discussed with your attorney.

Is My Premarital Agreement Enforceable?

Yes, in most cases you are obligated to the terms of the premarital agreement. However, a premarital agreement won’t be enforceable if it can be proven that the agreement wasn’t signed voluntarily, was only signed because of fraud, duress, or coercion, or the agreement was unconscionable (“illegally unfair”) when the couple signed it.

The person who challenges the premarital agreement has the burden of making the case to the Court as to why the agreement should not be enforced. The most common reason for challenging a premarital agreement is usually due to the parties not sharing enough financial information with each other prior to signing the agreement.

Many times a case can be made that the challenging spouse wasn’t given a fair and reasonable disclosure of the other spouse’s financial circumstances because assets were hidden, or they didn’t waive in writing their right to receive a fair disclosure of the other spouse’s assets and debts, or did not have or could not reasonably have had the accurate knowledge of the other spouse’s financial circumstances. In addition, sometimes the challenging spouse will state that the signature on the agreement is not even theirs.

All Premarital Agreements are Carefully Examined in Court

Premarital agreements are given much more scrutiny by the Courts than an average contract. The Court will carefully examine the circumstances surrounding the agreement because the Court knows that a premarital agreement is executed during an emotional and complex time period when there are many extenuating factors involved.

If a judge believes that the prenuptial agreement is extraordinarily unfair, he or she may decide that the agreement is “unconscionable.” However, judges find agreements unconscionable only in very rare circumstances and even then, that decision is not enough to void the agreement. The challenging spouse must still prove that they didn’t receive a proper financial disclosure. If an agreement is so one-sided that the enforcement of it would require one spouse to go on public assistance or welfare to survive, the Court may force the higher-earning spouse to pay alimony to the lower-earning spouse, even if the agreement didn’t provide for their support.

What are My Options?

Handling premarital agreements during divorce can be very complex. When filing for divorce, the party who stands to benefit from the prenuptial agreement will ask the Court to ratify the agreement. The other party therefore, will often challenge the agreement and file a Complaint asking the Court for declaratory relief. If you have a premarital agreement, this absolutely needs to be addressed early in the divorce process- no matter what side you are on. The attorneys of In Law We Trust Divorce and Family Lawyers, who specialize in representing men, have vast experience dealing with complicated divorce issues just like these. Contact us right away to discuss your case and the validity of your premarital agreement.

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In Law We Trust Divorce and Family Lawyers is a premier firm of divorce lawyers representing men in family law proceedings. We are uniquely positioned to assist our clients with the challenges men face in Florida’s court system. Call us today and get the proper representation men need and deserve.