In one sense, parties who sign a prenuptial agreement have at least a fleeting thought that the marriage may not survive “until death do us part.”
Indeed, Florida stands only behind Nevada and Arkansas among the highest divorce rates in the United States. Between 2010 and 2020, roughly 4.8 out of every 1,000 marriages in Florida ended in divorce. Those married from five to nine years divorced at a rate of 64 percent.
A prenup can simplify the end of a relationship, but it can also be unfair to one party or another. There’s also a chance that a prenup won’t hold up in a Florida courtroom.
Trust a skilled Lawyer with Robert Sparks Tampa Divorce Attorneys to protect you as you enter into and use a prenup agreement. Schedule a free consultation when you have questions about any prenup you are thinking about signing or about a prenup that will affect your coming divorce.
Prenup Agreements and Florida’s No-Fault Divorce
Florida’s no-fault divorce system somewhat eases the process of divorce. That is, the couple or a petitioning spouse need only prove that the marriage stands “irrevocably broken.” You don’t need to resort to showing infidelity, indignities, cruelty, or the like to dissolve the marriage.
Prenuptial agreements can further reduce the complexities in a divorce proceeding. With a prenup, or premarital agreement, you and your spouse take many potential disputes and issues out of the court’s hands should a divorce petition become imminent. Further, you don’t spend time after separation negotiating property and family matters.
That said, you might come to the divorce with regrets about entering into a prenuptial agreement. Talking to a skilled Tampa prenup lawyer can help ease your mind and leave you in a far better position if divorce becomes necessary.
Below, we describe what goes into a prenuptial agreement, how it might affect a divorce proceeding, and how you might attack its validity.
What Does a Tampa Prenuptial Agreement Do?
A valid prenuptial agreement controls what happens to the marital property in the event of a divorce. To that end, it takes the place of the equitable distribution statute. A spouse can plead the prenuptial agreement as a bar to a claim for equitable distribution. Without a prenup, the court would determine what assets are marital and either divide them equally or apply statutory factors for uneven distribution.
Through prenuptial contracts, the spouses may decide in advance what constitutes separate property. This comes in handy especially if you or your spouse have considerable assets that you owned before the marriage or may have assets from prior marriages.
One party may wish to ensure that the other spouse has no claim to improvements or increases to the value of a home, business, or other property.
A Tampa Divorce Attorney will examine any prenup you consider signing to make sure it’s not unfairly limiting your rights to possessions. We also help you fight back against an unfair prenup that’s already been signed.
Allow Fuller Inheritance By Heirs
Spouses may employ a prenuptial as part of their estate planning. By default, a surviving spouse has a right to an elective share of the deceased spouse’s estate. Through exercising the option, the surviving spouse can take at least a portion that the decedent intended for the children – perhaps from a prior marriage. A prenuptial agreement can provide and often provides that each spouse waives the right to share in the other’s estate. That includes rights to inherit or take shares of the elective estate.
Dealing With Alimony
In a prenuptial, parties will commonly waive the right to seek alimony in a divorce proceeding. Alimony provides a financially dependent spouse with continued support following a divorce. In Florida, alimony can take the form of permanent (indefinite), temporary, support needed to help a spouse transition to single-life, or support needed to achieve financial independence.
Generally, Florida courts will honor the waiver of alimony in prenuptial agreements. However, if you were to become eligible for public assistance at the time of separation, you can obtain alimony to the extent that alimony would keep you from qualifying for public assistance.
For more answers on this important topic check out our page on Tampa divorce and spousal support.
Child Custody and Support
Courts have the charge of promoting and protecting the bests interests of children. As such, a prenuptial does not bind a court when it comes to child support or custody. Specifically, Florida law does not allow the parties to waive or affect the rights of children to support. It won’t bar a custody or support claim or override a parenting plan agreed upon after the divorce or imposed by the court in a custody action.
Why Many Florida Prenuptial Agreements Are Unenforceable
Not Signed At All or Before Marriage
Florida law requires that prenuptial agreements be written and signed by both parties. When a prenuptial involves real property, the agreement must include witnesses and a notary for the parties and witnesses.
As the name suggests, a prenuptial agreement comes before marriage. If you don’t sign it until after the marriage, its provisions do not determine what happens upon divorce. You and your spouse would have needed a post-nuptial agreement to be signed after marriage.
The post-nuptial accomplishes many of the same things as a prenup with respect to dividing marital property, waiving or limiting alimony, and waiving inheritance rights upon the death of a spouse.
However, you or your spouse cannot rely upon marriage as the “consideration” for the contract because you are already married. Something else must serve as consideration. That could come from mutual promises to forego alimony or exchanging property.
Proof that the other spouse forged your signature voids a prenuptial agreement. Getting to that point may be difficult, but not impossible, in light of the requirement that signatures to a prenuptial be notarized. You may look for evidence that the supposed notary on the prenup is irregular or not in compliance with Florida law. In particular, the notary may not be registered by the State of Florida as such. Determine if a son, daughter, or parent of your spouse appears as the notary. Florida law prohibits a notary from notarizing the signatures of immediate family members on documents.
Beyond improprieties with the notary, you or your lawyer might engage a handwriting expert to compare what appears on the prenup with other documents you have signed. Evidence that you were not present at the place where you allegedly signed the prenup may come from witnesses who saw you elsewhere or receipts that indicate purchases or other transactions at a time other than when the agreement was allegedly signed. A divorce lawyer may pose interrogatories or depose the notary or the opposing spouse as to the circumstances of signing the document.
Duress occurs when one spouse’s illegal or improper actions pressure the other into signing it against the free will of the spouse seeking to invalidate the agreement. The forces that give rise to duress involve threats of bodily, reputational, or property harm.
Successful duress claims feature one spouse threatening to divulge embarrassing or perhaps unlawful actions of the one contesting the prenuptial – even if the party guilty of duress had a legal right to reveal the information. For instance, you may invoke duress if your spouse threatened to:
- Report you to the Internal Revenue Service or other taxing authorities for tax evasion
- Tell family members about prior acts of infidelity or that a cousin is actually a child from the spouse’s prior marriage
- Have you been prosecuted for criminal activity
You must prove in these instances that you would not have signed the prenuptial agreement had these or other acts of duress not occurred.
Having a Tampa Divorce and Prenuptial Agreement Lawyer look over any document you are considering signing is always the best choice.
Your Tampa Divorce Lawyer goes over each clause in a prenup agreement with you and makes sure you understand what you’re signing away. Your lawyer also stands by you if a marriage does come to an end to see that a prenup agreement is enforced fairly.
You understandably might treat coercion as the same as duress. However, Florida courts tend to view coercion more broadly than duress. Under the umbrella of coercion, you will find conduct that exerts undue influence on the spouse challenging the agreement. Pressure comes from economic and moral forces rather than just threats to harm one’s person, property, or reputation.
A spouse might claim that the other would not go through with the marriage without the prenuptial. Standing alone, such a refusal does not invalidate a prenuptial. Judges look for additional circumstances, such as:
- That the agreement was signed just hours or a couple of days before the wedding
- The party trying to enforce the agreement misrepresented the necessity of a prenuptial to validate the marriage or meet other legal requirements
Courts may find the scales of a prenup so imbalanced as to render it unfair and unconscionable. Such agreements saddle one spouse with the vast majority of burdens and conditions, and the other gets the lion’s share of the benefits. Unconscionability alone will not invalidate a prenup in Florida.
You must point to the other spouse’s failure to fairly and reasonably disclose assets and obligations at the time of the prenup. The duty of disclosure includes those properties or debts that you likely won’t find from searching public records. These encompass:
- Stocks, bonds, mutual funds, and other investments
- Checking, savings accounts, and certificates of deposits
- Credit cards and personal loans
- Interests in unregistered partnerships or joint ventures
- Beneficial interests in trusts
- Insurance policies
If your spouse hid assets or liabilities at the time you signed the agreement, you should also show that you did not waive in writing your right to know what was not disclosed and that you did not know and could not reasonably know what was hidden. Your Tampa Divorce Lawyer protects you from these and other unfair tactics used by a spouse or another attorney.
Contact a Tampa Divorce Attorney
At Robert Sparks Tampa Divorce Attorneys we are ready to defend the interests of our clients and safeguard their rights. Our attorneys work to help our clients and their families avoid as much disruption to their lives as possible during a divorce.
We offer a free case consultation to anyone in the Tampa, Clearwater, and St. Petersburg area facing a divorce. You’ll learn some valuable information on retaining the property and protecting the relationships that are most important to you.
Robert Sparks Attorneys stands by you through divorce negotiations and litigation while putting a priority on your wellbeing. We make sure you’ll have what you need to rebuild your life once a divorce is finalized.