Setting Aside Prenuptial Agreements in Florida
Prenuptial agreements made in the state of Florida are, for the most part, accepted by the court in the event of a legal separation or divorce. There are certain instances, however, when a judge will set aside a prenuptial agreement, which he/she is allowed to do under the Florida Family Law statutes. If you are looking to create a prenuptial agreement, that is an agreement made before you marry, deciding, if a divorce happens, specific outcomes for such issues as assets, debts, alimony, retirement funds, and inheritance (especially in regards to children from prior marriages) you need to be very careful to follow all the guidelines set forth in the statutes to avoid having your prenuptial agreement set aside. Here are the reasons a prenuptial agreement can be set aside:
- The most important requirement for which there is never any exceptions made is that the prenuptial agreement must be in writing, and signed with a notarized and witnessed signature from each party. A Florida judge will accept no other form of prenuptial agreement.
- Along with the written document an in-depth financial full disclosure by each party must be submitted. This disclosure is different than the one made for the court prior to a divorce, as it must be dated for the time period close to the signing of the prenuptial. And, if it can be proven there has been important information left out or falsehoods have been documented the entire prenuptial agreement will be disqualified, i.e. set aside.
- In Florida the term “unreasonableness” is used to describe another reason for setting aside a prenuptial agreement. A judge can use the information from the financial disclosure to determine if a gross difference exists from the time of signing to the time of divorce. An example would be a wife who has been a homemaker for 20 years having agreed to pay her husband alimony, yet the husband, at the time of divorce, has a salary in the hundred thousands.
- Should one party not speak, read, or understand English when a prenuptial agreement is being drawn up or being signed and there has been no interpreter, the prenuptial agreement is set aside.
- Should proof exist one or the other party was coerced or threatened during the writing or signing of the prenuptial agreement, the agreement will be set aside.
- If one party affords an attorney and the other cannot afford an attorney or if there is large discrepancy between the qualifications of the attorney’s hired a judge can rule one party had unfair advantage over the other and set aside the agreement.
- No prenuptial agreement setting forth stipulations on child support, parental timesharing and parenting plan, (formerly child custody and visitation), temporary alimony, or attorney fees will be used in the final judgment.
- If the waiver of homestead rights following divorce are included in a prenuptial agreement, both parties must show, prior to signing their agreement, they had a complete understanding as to what this would mean. Again, setting aside the prenuptial agreement can result.
- State and Federal Laws must be met if retirement plan benefits are waived in a prenuptial agreement. Failing to do this will set aside an agreement.
So, while making a prenuptial agreement between potential spouses can sound like a simple idea, there are many reasons to say it is not as simple as it seems. In all truth, it is wise to seek the advice and counsel of a Family Law attorney experienced in helping clients formulate and draw up a prenuptial agreement. It will also help if the divorce litigation does not become successfully solved in mediation and the case has to go to court before a judge. An experienced attorney will know how to present a prenuptial agreement as well as defend its contents and offer proof when necessary.
If you live in Palm Beach, Martin, St. Lucie, Miami Dade, Broward, Orange, or Hillsborough counties Attorney Grant Gisondo is experienced and proven successful in helping clients with their premarital agreements. His office is in West Palm Beach where he will meet with you personally in a free, initial consultation to discuss your particular concerns and explain how he can help. Call (561)-530-4568 for an appointment.