When Floridians enter into second or third marriages, they are commonly advised to enter into a prenuptial agreement that governs how assets will be divided in the event they someday decide to get a divorce. Unfortunately, some individuals who follow this advice come to regret doing so when divorce threatens to end the second (or third) marriage). A common questions from individuals who are party to a prenuptial agreement that they now see as unfair and possibly fraudulent is whether the agreement is enforceable. In some cases, the answer is either a plain “yes” or “no.” In other cases, the answer depends upon a number of factors that this post will enumerate.
Failure to follow formalities
A premarital agreement must be in writing and signed by both parties before the wedding. It can only include topics enumerated in the statute that governs such agreements. The failure to sign the agreement by one or both parties will result in the agreement being invalidated. The inclusion of an improper topic may result in that portion of the agreement being declared unenforceable, but the rest of the agreement may survive.
Rejecting the entire agreement
A premarital agreement will be invalidated if the challenging party can prove that the agreement was procured by fraud, duress or coercion. Both parties are obligated to make a full and accurate disclosure of their financial situations before the agreement is signed. If one party fails to make a full disclosure, that party may not be able to enforce the terms of the premarital agreement. Enforcement may be denied if the agreement was unconscionable when it was signed because the party seeking enforcement failed to make the required disclosures.
The enforceability of a premarital agreement is a complex issue. Anyone wondering about the validity of a prenuptial agreement may wish to contact an experienced divorce attorney for advice on the terms of the agreement and potential strategies to avoid enforcement.