Prenuptial Agreements in Florida

Section 61.079(2)(a), Florida Statutes, provides that a prenuptial agreement (also known as a premarital agreement) is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. A premarital agreement is a contract and can govern the parties’ finances in the event of a divorce. Section 61.079, Florida Statutes is Florida’s Uniform Premarital Agreement Act. Florida’s premarital act establishes the format and content necessary for a valid Florida prenuptial agreement. The agreement must be in writing and signed by both parties. Section 61.079(3), Florida Statutes.  The prenuptial can govern the alimony to be paid and the property rights each party is to have in the event of a divorce.

More specifically, section 61.079(4)(a)1.-8., Florida Statutes, provides that parties to a prenuptial agreement may contract with respect to:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The establishment, modification, waiver, or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.

One of the most common mistakes with respect to the execution of prenuptial agreements occurs when the marrying couple executes the prenuptial agreement at the “eleventh hour” just before a marriage. In the case of Hjortaas v. McCable, 656 so.2d 168 (Fla. 2d DCA 1995), the appellate court found that the wife was under duress at the time of the signing of the prenuptial agreement. The wife was first told of the husband’s demand that she execute a prenuptial agreement at the time he proposed, one month before the wedding. The agreement was first presented to the wife three days before the marriage.  The wife requested no changes, and did not hire an attorney. The timing of the execution of the agreement, and the corresponding lack of time to hire an attorney, were alone determined to have created compulsion sufficient to set aside the agreement.

The case of Lutgert v. Lutgert, 338 So.2d 1111 (Fla. 2d DCA 1976), also addresses the problem of executing a prenuptial agreement just prior to a wedding. The appellate court found that the prenuptial agreement sprung on the wife within 24 hours of the wedding; when all of the arrangements had been made; a honeymoon cruise booked; trousseau bought; invitations given; an ultimatum delivered (“no agreement, no wedding”), gave rise to a presumption of undue influence and lack of voluntariness. These cases underscore the importance of fully executing the prenuptial agreement well-prior to substantial preparations for the wedding. We recommend that both parties to a prenuptial agreement obtain the advice of independent counsel prior to entering into any such agreement.

Another question that may arise when parties to a divorce have executed a prenuptial agreement is whether there has been full disclosure as to the financial positions of each party. This may become an issue where a prenuptial agreement leads to an unfair or disproportionate outcome. See Casto v. Casto, 508 So.2d 330 at 333 (Fla. 1987). The Florida Supreme Court has determined that, if the result of a prenuptial agreement is disproportionate to one spouse, the court must be able to find that there has been full, frank disclosure of the financial positions of each party before signing the agreement, relative to the value of all marital property and the income of both parties. Id. The spouse defending the prenuptial agreement can show that the challenging spouse either had a general knowledge of the character and extent of the parties’ assets and income or that the defending spouse made a full financial disclosure Macar v. Macar, 779 So. 2d 479, 482 (Fla. 2nd DCA 2000) approved, 803 So. 2d 707 (Fla. 2001).

We have found that if properly created prenuptial agreements can make a divorce more streamlined and save considerable monies in the divorce.  These benefits come from the clarity prenuptial agreements afford both individuals to the agreement. If you have questions or concerns about prenuptial agreements, please contact Sessums Law Group, P.A. today.  At Sessums Law Group, P.A., we STAND FOR YOU!

Mark A. Sessums, Esq., is Board Certified in Civil Trial Law by the Florida Bar and handles accident and injury cases throughout Florida with the firm, SESSUMS LAW GROUP, P.A.  Mark A. Sessums is A.V. rated by Martindale Hubbell rating service (the highest available rating); 10.0 rated by AVVO.com (the highest available rating) and has been rated a Super Lawyer every year since the inception of the rating service in 2006 (only 5% of Florida Lawyers are rated Super Lawyers).  The firm has office locations in Lakeland, Sarasota and Sebring, Florida.

By Mark Sessums | Published November 11, 2013 | Posted in Divorce, Family Law | Tagged divorce, divorce lawyer, marital property, pre-nup, prenup in Florida, prenuptial agreement | Leave a comment