WHY YOUR PRENUPTIAL AGREEMENT IS PROBABLY IRRELEVANT

1. WHY YOUR PRENUPTIAL AGREEMENT IS PROBABLY IRRELEVANT Florida law dictates how property is divided in a divorce…unless you have a prenuptial (“prenup”) or postnuptial (“postnup”) agreement in place. However, a prenup or postnup is not ironclad – not unless you strictly follow the legal rules that determine whether a prenup or postnup will be effective when you need it. The words on the paper are usually fair to the couple involved, and the words are usually fair under basic contract principles. Overall, most prenups are upheld when challenged. There is a well-established precedent of “buyer beware” in American law, and courts want to uphold contracts between parties. Don’t think so? Consider the last time you wound up with an unpleasant gym contract or phone contract. Judges are inclined to uphold the contracts, and that applies to prenups. Why are most prenups upheld? Most lawyers use – and should use –“boilerplate” language, which refers to terminology and phrasing that most lawyers, judges and consumers have seen many times before. Such language has withstood the test of time under scrutiny. That’s why the majority of prenups use mostly all the same terms, and the rest of the language is variable, depending on how an attorney tailored the contract to the circumstances. Twenty-six U.S. states have adopted the Uniform Premarital and Marital Agreements Act (UPAA). Florida adopted it in 2007; see Section 61.079 of the Florida Statutes. The UPAA gives

2. guidance to judges for interpreting prenups and for whether they should be enforced. With so many states using this framework, you can rely on the safeguards in the statute. Even if you bought a DIY packaged prenup, it was likely written by a good attorney, who was using the conventions mentioned above. Why would your prenup be irrelevant? A prenup is rarely irrelevant because of the specific words on the page. It’s irrelevant almost always because of the process involved in creating the prenup, which may involve one of the situations below: 1.Duress. Duress is the pressure to sign because the person believes that there is no other option but to marry and thus to sign an unwanted contract. Consider these examples of duress: Someone urgently immigrating (and without a visa) might not have another solution for an immigration predicament, so the person will feel forced to sign a prenup in order to proceed with the wedding and to secure their status in the country. Imagine the wedding is scheduled in six weeks, and relatives who are traveling long distances have already invested money in plane tickets. The fiancé might not like the terms of the prenup, but the idea of delaying or calling off the wedding is unthinkable and humiliating. There might be a pregnancy that needs to be legitimized. A person might not want to agree to the prenup’s terms, but the person may still want to marry to ensure closeness with the child. 2.Incomplete or nonexistent disclosure. A prenup may be irrelevant when one or both partners have provided incomplete or nonexistent disclosure of financials, assets, liabilities, etc. Failure to disclose might include an intentional omission, but an omission also might be inadvertent, especially if the partners are rushed or dealing with other circumstances while preparing for the prenup and the wedding. On this issue, you may need a lawyer to figure out appropriate disclosure for your unique circumstances. 3.A language barrier. Disclosure cannot happen properly if one party cannot adequately comprehend the language used to identify assets, income, liabilities, etc. A language barrier may prevent a fiancé from fully understanding the terms of the contract. Additionally, translations might not accurately capture disclosure, depending on the translator’s understanding of the contract. Ultimately, if the person cannot read the contract, then there is no proper consent to, or agreement with, the terms of the prenup. 4.Too little time to consider the contract before the wedding. This situation provokes the same concerns as duress, even if neither partner is feeling forced or feeling as if there is no other option. Prenups may be irrelevant when there is simply too little time between the presentation of the prenup and the wedding ceremony to consider the potential consequences of the prenup adequately. 5.Fraud. This situation involves lying or deception of some kind. It may involve falsification of documents or lying about assets, all of which are a failure to disclose.

3. But the fraud may involve the prenup document itself, such as presenting a copy with different terms for signature to an unsuspecting fiancé. Such tactics may be used to induce a partner’s signature on the prenup by making the partner believe that the prenup does or does not include certain provisions. The latter situation is especially possible when one partner is not as legally savvy or does not have comparable language or reading comprehension. 6.Need for public assistance. If your prenup waived spousal support, but divorce has caused the ex-spouse to need public assistance, the court may require the other ex- spouse to provide financial support. The wording of Section 61.079(7)(b) provides the following guidance: “If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, not withstanding the terms of the agreement [emphasis supplied], may require the other party to provide support to the extent necessary to avoid that eligibility.” How do I avoid these pitfalls? You can approach a prenup through hiring a lawyer as your own advocate and not as your partner’s advocate. This approach is somewhat adversarial, though it may be the best approach for your needs. A better, and likely less expensive, option is to pursue a mediated prenup, in which one of our attorneys can function as a mediator who is not hired to represent only one person’s interest. Please see our post, “What is a Mediated Prenup?” If you are married and have a prenup in place, consider a review to make sure that you have protected yourself against the pitfalls that may render your prenup irrelevant. If there is in fact a problem, the remedy is easy: you can simply amend your prenup, which might be a good move regardless, as you may have acquired assets, businesses, and income that you did not possess at the time of the prenup’s drafting. In fact, the UPAA provides for the amending of your prenup in Section 61.079(6): After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration. If you have questions or concerns related to creating, reviewing, or amending a Florida prenup, the dedicated prenuptial attorneys at Just Prenups can help. Warning:All posts on this website and its partner website, the DADvocacy™ Law Firm, contain general information about legal matters for broad educational purposes only. This information is not legal advice and should not be treated as such. This blog post does not create any attorney-client relationship between the reader and JustPrenups.com or DADvocacy™ Law Firm.