Many factors determine whether your prenuptial agreement will hold up if you go through an Orlando-area divorce. Avoid the issues below when developing a prenuptial agreement because they can cause the agreement to be invalidated:
What Can Invalidate a Prenuptial Agreement
It is black letter law that parties to an antenuptial agreement do not deal at arm’s length with each other. Rather, their relationship is one of mutual trust and confidence. The parties must exercise the highest degree of good faith, candor, and sincerity in all matters bearing on the terms and execution of the proposed agreement, with fairness being the ultimate measure.
Section 61.079(7)(a), Florida Statutes (2019), in relevant part, provides that a premarital agreement is not enforceable in an action proceeding under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that the agreement was the product of fraud, duress, coercion, or overreaching.
Duress, Coercion, and Overreaching
Duress is a condition of mind defined by an improper external pressure or influence that practically destroys the free agency of a party and causes him or her to act or make a contract not of his or her own volition. To claim duress, it must be shown that:
- The act sought to be set aside was affected involuntarily and thus not as an exercise of free choice or will
- That this condition of mind was caused by some improper and coercive conduct of the opposite side.
Thus, duress involves a dual concept of external pressure and internal surrender or loss of volition in response to outside compulsion. It is not duress for the proponent of the agreement to make it clear that there will be no marriage in the absence of the agreement. Nonetheless, a party may not exploit another for his or her own pecuniary advantage.
An Example of When a Prenuptial Agreement Was Invalidated
A court invalidated a prenuptial agreement where the testimony established that the husband initially presented his pregnant wife with the disputed document six days before the wedding. At that time, the wife requested that he produce evidence regarding his holdings and net worth. The husband assured the wife that such evidence would be forthcoming.
Instead of honoring his pledge, on the day before the wedding the husband demanded execution of the prenuptial agreement and gave the added ultimatum of no agreement, no wedding. He further threatened life-altering consequences by imperiling their shared long-term plan to begin life anew with their children in the United States.
The Florida appellate court concluded that those circumstances, unrebutted by the husband, were sufficient to support a finding of duress. The court found that the timing of the signing of the document indicated that the wife’s signature was the product of duress. Two days before the wedding, the wife was presented with a document, the actual terms of which were previously unknown to her and which contained no information about the husband’s finances. She had only one day to seek counsel from her own attorney, make an independent evaluation of the contract, or cancel her wedding. The only rational conclusion was that the signature was the product of unwarranted compulsion, and the document should have been set aside on that basis.
What Needs to Be Done to Make a Prenuptial Agreement Solid
- Exercise the highest degree of good faith, candor, and sincerity throughout the negotiation and execution of the agreement..
- Make sure the process is fair, because fairness is the ultimate measure.
- Avoid fraud, duress, coercion, and overreaching.
- Provide financial information when requested, including evidence regarding holdings and net worth.
- Give the other party enough time to review the agreement, seek independent legal counsel, and evaluate the contract before the wedding.
- Do not use threats, improper pressure, or last-minute ultimatums to obtain a signature.
- Do not exploit the other party for pecuniary advantage.
If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden, Esquire at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. You may also visit my website at: https//: www.AnnMarieGildenLaw.com
This article is for informational purposes only, and it does not form an attorney-client privilege.