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It's The Law: Premarital Agreements Can Be Important

Question: I am getting married. I have children from a previous marriage and want to be sure they are protected. I also want to be sure I am protected if we get divorced. Are premarital agreements enforceable in Florida?

Answer: As our nation grew with independence, courts throughout the country issued decisions holding premarital agreements void because they violated public policy. In the 1800s, the courts adopted a legal theory that premarital agreements would violate the sanctity and importance of marriage. The tide of judicial thinking began to turn as women gained rights to own property and enter contracts. Courts gradually relied on those rights, in part, to rule that a couple could enter a contract concerning their marriage.

Although Florida was one of the last states to acknowledge a woman's rights to deal with her own property, it was one of the first states to uphold premarital agreements. As courts in most states continued to strike down premarital agreements on ground that they would facilitate a divorce and were against public policy, Florida courts declared that such agreements could actually help avoid dispute and facilitate marriage.

Although Florida courts were in the forefront of enforcing premarital agreements, the legislature lagged behind. Florida became the 27th state to adopt its version of the Uniform Premarital Agreement Act, effective in Florida October 1, 2007 (the Act).

The Act requires that premarital agreements be in writing and signed by both parties. Consideration for the agreement is the marriage itself. The Act goes on to provide that parties to a premarital agreement may contract with respect to:

  1. Rights and obligations with respect to property;
  2. Right to buy, sell, transfer, use, and mortgage or otherwise manage and control property;
  3. Disposition of property upon separation, divorce or death;
  4. Establishment, modification, waiver or elimination of spousal support;
  5. Making of a will, trust or other arrangement;
  6. Ownership rights and disposition of death benefit from life insurance and any other matter not in violation of public policy or law imposing a criminal penalty.

Premarital agreements cannot limit child support, as the right of child support belongs to the child. By statute, it cannot be adversely affected by a premarital agreement.

The Act does not render all premarital agreements enforceable. An agreement is not enforceable if the party against whom enforcement is sought proves a) that party did not execute the agreement voluntarily or b) that the agreement was the product of fraud, duress, coercion or overreaching or c) that the agreement was unconscionable when it was executed and the other party, did not voluntarily and expressly waive such disclosure and did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.

The Act basically follows earlier Florida court decisions. Those cases have generally required premarital agreements have either fair and reasonable provision for a spouse or full disclosure of financials. They also required such agreements be entered freely and voluntarily, often invalidating agreements that were entered under duress (as when the agreement was presented without warning just prior to the wedding ceremony).

Florida courts have often confirmed that the State is a third party whose interest takes priority over the private interest of spouses during divorce. However, it appears that the state's interest is limited to voiding agreements which leaves one spouse destitute and shift responsibility for support from the divorcing spouse to the state. The Act codifies those decisions by providing that if a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to be eligible for support under a program of public assistance at the time of separation or divorce, a court may require the other party to provide support to the extent necessary to avoid that eligibility.

In most cases, premarital agreements are intended to protect significant assets. It is not a field for the do-it-yourselfer. Premarital agreements should be tailored to the goals and interests of the parties, not the choice of words are critical, as in any contract. Full financial disclosure should be made. The complexity and financial ramifications of these agreements make it imperative that each party retain an experienced attorney for drafting and review.

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