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05/17/12 It's The Law: Pre-Nuptial Agreements Are Enforceable

It's the Law

Pre-Nuptial Agreements are Enforceable



I am thinking about entering my second marriage. I want to protect my assets in divorce and make sure they pass to the children from my first marriage. A friend tells me I can enter into a contract with my future spouse that will accomplish these goals. Would that contract be enforceable in Florida?


Pre-marital Agreements have a long history. They date back thousands of years among Hebrews. The Arab world has long recognized marriage contracts as have the countries of China and India. Pre-marital contracts were very important in medieval Europe, as even though women were considered property, it was deemed important to protect women and children from unexpected misfortune. Pre-marital contracts provided guaranteed protection for women and children, generally segregating certain assets to protect them in the event of misfortune or even divorce.

The opposite approach was originally taken in this country. Pre-nuptial agreements were considered in violation of public policy, harming the sanctity of marriage and encouraging divorce. As women gained rights, public policy against pre-nuptial agreements faded. In the mid-1900's, Florida joined the growing list of states confirming a man and a women could enter a pre-nuptial contract, but required full knowledge on the part of the future wife of everything materially affecting the agreement including the assets and property rights of each future spouse to the other's estate. Rather than facilitating divorce, the courts decided these agreements were actually conducive to marital harmony.

Florida's change in approach culminated in the Florida legislature's 2007 adoption of the Uniform Pre-marital Agreement Act at Section 61.079 Florida Statutes. The statute lists seven categories of rights and obligations that may be addressed in such agreements, and an eighth described as "any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty."

The Act applies to agreements entered after it became effective. That does not mean cases concerning pre-nuptial agreements predating the statute no longer apply. For example, Florida cases have held provision in a pre-nuptial agreement waiving spousal support during marriage (i.e., alimony or support prior to divorce being final) are a violation of public policy. Part of that support, as codified in other statutory provisions, includes the right of a needy spouse to attorney fee contribution from his or her spouse during a divorce proceeding. However, where a prenuptial agreement provides that the prevailing party in any action to enforce the agreement is entitled to attorney's fees and costs, that provision will be enforceable even against the "poorer" spouse, as a provision addressing post dissolution property distribution and support.

Federal law applies to waiver of rights in qualified plan benefits, such as retirement benefits. Only a spouse can waive a right to a qualified plan benefit, which means that a waiver in a pre-nuptial agreement will likely be unenforceable unless additional documentation is signed after marriage. The waiver must be in writing, must designate a beneficiary, and the spouse's signature must be witnessed by a plan representative or a notary republic.

Rights and obligations concerning child support, child custody and visitation cannot be waived in a pre-nuptial agreement as such waivers are void against Florida public policy. And, under the statute, if permanent spousal support is waived, support can still be required if result of the waiver is that the waiving spouse qualifies for a program of public assistance at time of separation or divorce.

Agreements may be rendered unenforceable in their entirety if the result of fraud, overreaching, or are unconscionable. Even if unconscionable, the agreement may still be enforceable by statute if the party against whom the agreement is to be enforced was provided fair and reasonable disclosure of the property and financial obligations of the other party. The statute indicates that if a party voluntarily waives in writing disclosure and could have had an adequate knowledge of the property or financial obligations of the other party, the agreement may still be enforceable. There is no reported judicial decisions applying that provision of the statute, so it is still recommended that full financial disclosure be made at the time of a pre-nuptial agreement and that both parties be represented by counsel so that they are fully informed of their rights under Florida law and impact of any agreement of those rights.

Pre-nuptial Agreements are an area of great complexity. Although Florida has been supportive of pre-nuptial agreements for little more than fifty years, there is a wealth of cases addressing various fact situations and wording of agreements. If you plan on a pre-nuptial agreement, you should retain an experienced attorney at the earliest possible time.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorris.com.

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