A Prenuptial Agreement is a contract made before marriage which describes the rights, duties and obligations of the prospective spouses. The Prenuptial Agreement is most commonly known to limit one spouse’s ability to claim the assets of the other spouse upon dissolution.
A Prenuptial Agreement can be used to prevent litigation costs, protect a business, protect against creditors of one of the parties, and, most frequently, determine the disposition of property.
Previously, Prenuptial Agreements were not enforceable as being against public policy. However, the Florida Supreme Court in Posner v. Posner, 233 S. 2d 381, 384 (Fla. 1970) upheld the validity of Prenuptial Agreements.
A Prenuptial Agreement must be in writing and signed by both parties. The contract should be executed in front of a Notary Public. There should also be witnesses to the signing of the contract. Both parties must have the capacity to enter into the contract, and they both must execute the contract voluntarily.
While a Prenuptial Agreement should generally be reasonable, it is enough that the other party had reasonable knowledge of the others’ wealth. In Cantor v. Palmer 166 So. 2d 466 (Fla. 1964), the court held that a wife who, after consulting with counsel, had entered into a prenuptial agreement waiving all of her rights to her husbands’ estate except those contained in his will, was bound to the Prenuptial Agreement even though it turned out that the husband was much wealthier than she had thought. The court in that case held that even though the wife was unaware of the wealth of the husband, should know enough about the husband’s wealth to make the agreement enforceable.
However, in Florida, even unreasonable Prenuptial Agreements are enforceable if they are entered into voluntarily. Casto v. Casto, 508 So. 2d 330 (Fla. 1987).
A Prenuptial Agreement can be set aside by a court, however, if the agreement was reached under fraud, deceit, duress, coercion, misreprentation, overreaching and the like.
The Prenuptial Agreement can be used to supercede the equitable distribution provisions under Florida law, whereby assets are first presumed to be joint, but through proof the court may divide the property in a way which is fair.
Very special care must be taken in drafting the Prenuptial Agreement. For instance, where a Prenuptial Agreement provided that neither spouse would obtain an interest in the increased value of the separate property of the other spouse, it was still permissible for the court to apply a statute that provided that an increase in the value of nonmarital assets which are attributable to marital labor or funds are subject to equitable distribution. Doig v. Doig, 787 So 2d 100 (Fla 2d DCA 2001). In this case the court found that, notwithstanding the Prenuptial Agreement, both parties had contributed to the maintenance and improvement of the property and the wife was entitled to one half of the increase in value of the property.
Further, in Johnson v. Johnson, 779 So 2d 620 (Fla 5th DCA 2001) the court found that even though a husband had waived in a Prenuptial Agreement any interest in the wife’s property, the court still considered the money the wife received from a nonmarital annuity in considering alimony for the husband.
In another case, the parties entered into a Prenuptial Agreement which stated that the wife would have no interest in the husband’s pension plan. The court held, however, that the Prenuptial provided no language concerning marital enhancement to the pension plan or future contribution, and allowed the wife to be entitled to equitable distribution of the enhanced value of the pension plan. Witowski v. Witowski, 758 So 2d 1098 (Fla 2d DCA 2000).
As can be seen above, the importance of creating an accurate and encompassing Prenuptial Agreement can mean the difference between it having the desired effect, or causing it to be nearly meaningless when implemented.
A child’s right to support cannot be affected by a Prenuptial Agreement. However, certain aspects of the raising of the child can be contained in the Agreement.
Likewise, while permanent support for one spouse may be waived in a Prenuptial Agreement, temporary support cannot be waived.
A Postnuptial Agreement is contract entered into when the parties are already married. Unlike with a Prenuptial Agreement, there must be full and accurate disclosure of finances in connection with the entering of the Postnuptial to ensure that it will be legally valid.