One of the questions we often receive is whether or not a prenuptial agreement (also called a “prenup” or antenuptial agreement) can be invalidated. The answer depends upon the circumstances.
If you had the benefit of having time access to an attorney and you were given full financial disclosure of all of your partner’s assets and liabilities (and you did so in return), and there is nothing mentally wrong with either of you (i.e. you both are reasonably intelligent and can grab a sentence with two hands), chances are the agreement is solid. The reason why is that public policy in Florida favors honoring the integrity of an agreements. This is done for two reasons:
1) to get people to take notarized contracts seriously; and 2) to keep disputes out of Court. If your agreement benefited from full disclosure and everyone can reasonably understand the language of the agreement, you more than likely have a binding contract.
However, if one of the parties failed to fully and adequately disclose all financial information in advance of the signing, then that is the surest basis to unravel a prenuptial contract. It won’t necessarily matter at that point if you had counsel or not – the relevant item to the Court will be that one of the spouse’s lied about the fundamental data backing up the agreement and for that reason there could be no meeting of the minds (i.e. fraud).
The old cliché “I was afraid I would not get married and therefore felt coerced” does NOT work so well. Bear in mind that there are situations where coercion is genuine, but most judges will not see the mere threat of remaining single to be one of them. To qualify as coercion (or for that matter fraud, deceit, duress, or misrepresentation), the party moving to set aside the agreement must meet the legal standards of what these concepts mean as defenses to an otherwise binding and enforceable contract. The judge will not merely apply a layperson’s own subjective assessment, and that is why the “I was afraid not to get married” reason does not, by itself, do the job.
Though pre-nups are assessed by the standards of contract law, in divorce cases the burden to prove up these defenses has become known as the “Castro burden.” Castro v. Castro, 508 So.2d 330 (Fla. 1987). You might hear this term if you are the party seeking to invalidate a premarital contract.
Aside from the aforementioned contract defenses, Castro sets forth a second way to challenge a prenup: That the agreement does not reasonably provide for the needy spouse given the circumstances of the parties. To make this challenge, the spouse seeking to set aside the agreement, “must present evidence of the parties' relative situations, including their respective ages, health, education, and financial status. With this basic information, a trial court may determine that the agreement, on its face, does not adequately provide for the challenging spouse and, consequently, is unreasonable.” Keep in mind this is about more than just alimony. The Court will also look at the overall benefit in resources you get in distribution of assets and liabilities.
If the challenging spouse meets this threshold, then the burden “shifts” to the other spouse to defend the contract. They can do so by offering evidence that there was either “a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and the income of the parties,” or “a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties.” The test will be whether the challenging spouse was “prejudiced” by the lack of information in making the deal. If ultimately the failure does not meet this test, then the agreement will be upheld.
Setting aside a prenup is not impossible, but it is not a failsafe. The best way to avoid an issue is to be proactive. Never sign a prenuptial contract that you have not seriously contemplated, and always seek assistance from an attorney if you have ANY questions or doubts BEFORE signing the contract. Indifference and inaction is your own worse enemy, since the law is clear that you are free to bargain, even if that bargain means a bad deal for you.
Contact Rechel & Associates with any other questions regarding Prenuptial Agreements.