Take this into consideration: According
to the 2010 U.S. Census, the median age of those entering into their first
marriage was 28.5 for men and 26.7 for women. Typically, by this age a career
path is established, children may exist from previous relationship(s), and
assets are accumulated such as property, investments and/or retirement. These
assets need to be protected. In previous generations, it was common for couples
to marry young before they had established any assets and then build assets
together. What people tend to forget is that if you never get divorced, you’ll
never use the prenuptial agreement, but if on the unfortunate chance divorce
cannot be avoided why not ensure some type of protection, a sort of insurance
policy on the marriage. Prenuptial
agreements can assist in making sure the material items you’ve accrued prior to
the marriage are safeguarded for your children, parents or siblings should the
marriage not work out. In the event of a failed marriage, would you like your
retirement to be safeguarded for your children or your ex?
Further clarification can be
provided with an understanding of prenuptial agreement (a.k.a. premarital
agreement) and how they work. According to the Uniform
Premarital Agreement Act, Civ. Pro. 61.079 Premarital agreements, a
premarital agreement is a written agreement between two parties, signed by both
and enforceable without consideration other than the marriage itself. One can contract obligations of: property,
disposition of property upon separation, death or on any other event,
establish, waive or eliminate spousal support (except pendent lite, which is a
Latin term meaning “pending litigation” if this is required the Judge will
order it), disposition of the death benefit of a life insurance policy,
governing law and any other matter that does not violate public policy (i.e.
Child support can NEVER be waived). The
agreement becomes effective as soon as you get married. After the marriage, the agreement can be changed,
revoked or abandoned. It also does not
safeguard any assets that you accrue together or during the marriage, only what
was yours before the marriage.
Unfortunately, having a
prenuptial or premarital agreement does not mean that one can avoid the courtroom.
Donald Trump detailed in his book,
Trump: How to Get Rich, how his ex-wife Ivana challenged their prenuptial
agreement. Trump stated: “[w]e needed a bus to get Ivana’s lawyers to court. It
was a disaster, but I had a solid prenup, and it held up.”¹ Prenuptial
agreements can be contested (challenged in court) if a party can establish that
the agreement wasn’t entered into voluntary, the agreement was entered into by
fraud, duress or coercion, unconscionable, or the party did not have fair and
reasonable disclosure of the financial obligation of the other party. This is key! Our firm always requires
a full financial disclosure to be provided by both parties when entering a
prenuptial agreement. You cannot contest
a prenup by simply saying I didn’t understand or felt it was unfair. If you
sign it, it’s official. According to the courts, a prenuptial agreement shall
be construed and interpreted as any other contract. ² Although a trial court
may be motivated to do what it considers to be fair and equitable, it retains
no jurisdiction to rewrite the terms of the agreement. ³ According to Barakat v. Broward County House. Auth., 771
So. 2d 1193 (Fla. 4th DCA 2000), “[i]t is never the role of a trial
court to rewrite a contract to make it more reasonable for one of the parties
or to relieve a party from what turns out to be a bad bargain.” If presented with a prenuptial agreement or
if you’re considering having one drafted, take the time to read it, understand
it, ask questions and seek out a lawyer to help make sure you’ve safeguarded your
family and your future.
² Ledea-Genaro v. Genaro, 963 So.2d 749, 752 (Fla. 4th
DCA 2007)
³ Rocha v. Mendonca, 35 So. 3d 973 (Fla. 3d DCA 2010)
Written by: Attorney Jennifer Sinker
