Prenuptial agreements can be classified as special contracts. They’re contracts that are binding like any other contract you might enter, but they’re “special” because the court looks at them with much more scrutiny than other types of contracts. Certain requirements must be met to shield your agreement from attack, and having an experienced attorney on your side can make all the difference.
In Florida, a prenuptial agreement is not enforceable if:
1. A party did not execute the agreement voluntarily;
2. The agreement was the product of fraud, duress, coercion, or overreaching; or
3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
See Fla. Stat. 61.09.
In light of these parameters, there are certain steps a lawyer can help you take during execution and negotiation of the contract to prevent a successful attack on the agreement if divorce happens. Because these contracts carry a risk of being invalidated, you want to take all steps possible to avoid exposing yourself to loss of money and/or property. Imagine if you, for example, believed you would not be liable for alimony based on a premarital agreement you entered, only to be told at divorce that the agreement is void because it doesn’t withstand scrutiny under the law.
Remember that even if you are married, you can still enter a postnuptial agreement which is essentially the same as a prenuptial agreement. The difference lies in when the contract was signed (one signed is before marriage and the other is signed after). Consult with a prenuptial agreement lawyer to go over a strategy to ensure protection of your agreement.