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Premarital Agreements in the State of Florida – Frequently Asked Questions

premarital

I Have a Premarital Agreement and I Want to Know if it’s Enforceable

Under Florida law, if your premarital agreement is in writing, and was signed by both parties to the marriage, and your marriage has already taken place, typically, your premarital agreement is legally valid. However, there are some exceptions to this. If your situation meets one or more of the legal exceptions, then your premarital agreement is not valid, either in whole or in part.

What Will Prevent a Premarital Agreement from Being Enforced?

There are a number of different situations which will render a premarital agreement unenforceable. These situations are very fact specific.

Premarital Agreements Based on Dishonesty

If one party did not voluntarily execute the agreement, the agreement is not enforceable. Similarly, if the agreement is the product of coercion, overreaching, duress, or fraud, it is unenforceable. If the agreement is determined to be unconscionable when it was executed, or before execution of the agreement, and the following additional conditions are all met, the agreement will not be enforced.

Unconscionable agreements include the following facts:

  • The aggrieved party was not provided with reasonable and fair disclosure of the financial obligations or property that the other party owned at the time;
  • In addition to their lack of knowledge, the aggrieved party did not expressly or voluntarily waive, in writing, the right to demand the disclosure of financial obligations or property beyond what was actually disclosed, that the other party may have possessed; and
  • The aggrieved party did not know, and could not reasonable known of the financial obligation or property belonging to the other party.

Premarital Agreements Regarding spousal support

If the premarital agreement included a modification or elimination of spousal support, this may be disregarded by the court in specific circumstances. If the party will qualify for public assistance at the time of separation or divorce without spousal support, the court may require the other party to provide support. This support is limited only to the extent necessary to avoid the qualification of public assistance.

Premarital Agreements That Are Based on Void Marriage

Typically, an actual marriage is required for a premarital agreement to be upheld. However, if a court determines a marriage was actually void by law, the premarital agreement is only enforceable to the extent that is necessary to avoid an inequitable result.

My Spouse and I have a Premarital Agreement But We Want to Change It – Can We Do That?

Yes. If you and your spouse have a premarital agreement, and you want to amend it, you may do so.  However, this amendment must also be in writing. Additionally, just as with your original premarital agreement, amendments to the premarital agreement must also be signed by both parties.

My Spouse and I have a Premarital Agreement But We Don’t Want It Any More.  What Can We Do?

If you have a premarital agreement, and you and your spouse have decided that you no longer want the premarital agreement, you can make arrangements to revoke or abandon the agreement. This decision to abandon or revoke the agreement must also be in writing. Additionally, as you might imagine, both parties are required to sign the revocation or abandonment agreement.

I’m Thinking of Divorce and I Have a Premarital Agreement

If you are thinking of divorce or separation, and you have a premarital agreement, contact Fort Lauderdale family law attorney Sandra Bonfiglio to discuss your situation. Our office can assist you today.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.079.html

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