Now that We’re Getting Divorced, My Prenup Doesn’t Seem Fair

As we enter the heart of summer, the so-called “wedding season” is in full swing. The warmer temperatures and longer days of spring and summer, culturally associated with large parties and outdoor activities, bring out the anxious bride and groom eager to marry. You could say wedded bliss is within the grasp of more people as divorce rates declined in Florida for 2014. Marriages were up three tenths of a percent, with 54 divorces for every 100 marriages.

The news was not all good, though. Florida still has more divorces than other states by one half a percent. While the numbers are heading in a positive direction, these statistics indicate couples in Florida still have a greater than 50 percent chance of getting divorced. With the numbers not in favor of forever unions, a prenuptial agreement can help streamline divorce proceedings, which are fraught with mental and financial stress. What happens, though, if you have a prenuptial agreement that now seems unfair in light of factors that became more apparent after marriage? Is there any way to get out of it?

Florida law on prenuptial agreements, entitled the Uniform Premarital Agreement Act, outlines what is needed to form an enforceable prenuptial agreement. If any of these things are missing, the contract is not valid. The basic requirements require that the contract must be in writing, signed by both spouses and executed before they marry. If the agreement was oral or made after marriage, it is not valid. Also, the agreement is only effective if you marry, so if you do not follow through with marriage, the contract is not enforceable. You may modify, revoke or abandon a prenuptial agreement after marriage, as long as it is writing.

Additionally, there are limitations on the contents of a prenuptial agreement. Anything in the contract that would offend public policy and/or violate a criminal law is not allowed, and if such items appear in the agreement, the entire contract could be found void by a court. Additionally, Florida law specifically forbids prenuptial agreements from limiting a spouse’s obligation to provide child support. You are expressly permitted to agree on the following:

• Property ownership, control, division and disposition based on separation, divorce, death,or some other occurrence;
• Rights in a death benefit of a life insurance policy;
• Which law you want applied, i.e., Florida, Michigan, Arizona, etc.;
• Creating a will, trust or similar agreement; and
• Creating, excluding, waiving or modifying spousal support.

If you want to challenge a prenuptial agreement and argue it should not be enforced, a Florida court can refuse to enforce it if any of the following exists:

• You didn’t voluntarily enter into the agreement;
• You only agreed to the contract because of fraud, duress or overreaching; or
• The agreement was unconscionable. An agreement is considered unconscionable if you did not know before entering into it the full extent of your spouse’s property or financial obligations, you did not waive your right to full disclosure of this information, and there was no other source you could have used to learn about the property and financial obligations.

In addition, if the prenuptial agreement includes terms about spousal support that reduces or eliminates it upon divorce and that reduction or elimination means the spouse who would receive the support would qualify for public assistance, a court can require the payment of enough spousal support so the spouse no longer qualifies for public assistance.

Having a prenuptial agreement usually provides peace of mind in a divorce since they leave little to discuss, but it is important to know there are limits on what they can include and exclude. Just because something is labeled a prenuptial agreement does not mean everything in it is legally sound.

If you are getting divorced and believe the prenuptial agreement you signed is unfair, it is important to consult an experienced divorce attorney who can determine if you may have grounds to challenge its enforceability. The attorneys at Stok Kon + Braverman, serving clients in the Fort Lauderdale and Boynton Beach areas, have over 50 years of combined experience in family law matters and are available to assist you with all matters related to divorce.