Reasons Why A Prenuptial Agreement May Fail

As one might imagine, prenuptial agreements are complex instruments that require careful crafting in order to be valid. It is not enough to simply mutually agree on provisions with your spouse; those provisions must be in compliance both with state law, and with public policy. Even if there is mutual agreement, it may not be acceptable because many individuals are not always aware what they are agreeing to in terms of law. There are several warning signs to look out for.

Problems With The Physical Document

• The agreement is oral (that is, not in writing). Under Florida law, this renders any contract invalid; prenuptial agreements and many other contracts must be in writing to be considered valid.
• The agreement is not signed by both parties. The same statute requires that both parties to a prenup sign it, as a way of attesting they have read it and agree with its provisions.
• Certain provisions are invalid. For example, a Florida prenup may not contain clauses which deal with child support. The rationale is that the situation will almost always change radically between the time the prenup is signed and the divorce occurs, so to provide for support would be premature. It is possible, however, that a court would simply excise the illegal clauses and leave the remainder of the contract intact, especially if you have included a severability provision in your prenup from the beginning.
• Incomplete information. A prenup risks being labeled unenforceable if one or both spouses do not disclose all relevant information up front.

Problems With Procedure

• The prenup was signed under duress. As with all contracts, prenuptial agreements are invalid if it can be proven (via clear and convincing evidence) that one or both parties signed under duress or due to fraud. It is also common that one spouse will attempt to get a signature by a form of subterfuge, placing papers in front of their wife or husband to be, and casually requesting a signature without giving them time to peruse what they are signing.
• Both parties have the same counsel. It is unethical at best to represent both parties to a contract. If you are in this situation, it is strongly suggested to ask one party to retain separate counsel, so their interests are protected.
• Unconscionability. This is perhaps the most difficult problem to define. If a contract is unconscionable, it is held to be “shockingly unfair” or unjust. What many do not grasp is that a prenup is not enforceable merely because it is agreed upon. Unconscionability reaches the concept of public policy, meaning that the issue of whether the contract shocks the conscience of the public is in question. For example, if a spouse willingly signs away all their rights to collect alimony from their partner, a court may hold that such a provision is unconscionable – one spouse would be financially secure, and there is no guarantee that the other spouse would even be able to sustain a lifestyle anywhere near comparable to that enjoyed during the marriage. If your prenup has any provision that entirely disavows any right to any potential benefit at a later date, it may be held to be unfair.

Contact A Knowledgeable Attorney

Because prenuptial agreements are in effect, contracts, they can grow quite complex. Having a good lawyer on your side can help cut through the confusion and create a prenup that both you and your soon-to-be-spouse can live with. The Hollywood family lawyers at the firm of Steven A. Mason, P.A. are ready, willing and able to use our family law experience to help you safeguard your future. Contact the Fort Lauderdale and Hollywood Law Offices of Steven A. Mason, P.A. for legal advice at 954-963-5900 or leave a message online.