Most Florida divorce attorneys will encourage clients to sign prenuptial agreements if the agreement accurately expresses the parties' intentions and if the agreement is not unfair to either party. Nevertheless, some prenuptial agreements turn out to be unenforceable for different reasons. Some agreements are unenforceable because the parties made a simple mistake, such as not signing the agreement until after they became married, and some are unenforceable because one party tried to take advantage of the other. In the latter situation, the enforceability of the premarital agreement could seriously affect the division of marital assets in the event the couple decides to get divorce.
The enforceability of premarital agreements in Florida is governed by a statute known as the Uniform Premarital Agreement Act. The statute establishes the formal requisites for premarital agreements and specifies the grounds on which such agreements can be invalidated. All premarital agreements must be written and signed by both parties before the marriage takes place; the absence of one or both signatures will invalidate the agreement.
The statute also enumerates the various reasons which can invalidate an otherwise enforceable agreement. If the party against whom enforcement of the agreement is being sought can establish that he or she was coerced into signing the agreement, the court will not enforce the agreement. Likewise, if one party can prove that his or her signature was obtained by fraud, the agreement will not be enforced. A prenuptial agreement will be invalidated if the agreement was unfair or unconscionable when it was signed. Another important ground for invalidation is the failure, or refusal, of one party to make a fair and reasonable disclosure of property. Any issue of unconscionability of a premarital agreement will be decided by the judge.
Anyone who is concerned about the enforceability of a premarital agreement may wish to consult a knowledgeable divorce attorney for advice. A capable lawyer can provide an analysis of the pertinent facts and an estimate of the likelihood that a court will affirm or invalidate the agreement in question.
Source: Florida Legislature, 2017 Florida Statutes §61.079, accessed Nov. 13, 2017