In fairy tales, there are typically two main characters who fall into a whirlwind romantic affair that quickly leads to “happily ever after” walking down the aisle. It’s magical, wonderful and happy like any wedding should be, but wait, no one mentions the uncomfortable conversation Cinderella had when Prince Charming presented her with a prenuptial agreement. The dreaded prenuptial agreement can send shivers down your spine. The first reactions include anger, anxiety and disappointment. How can anyone marry if they don’t think it will last forever? But I’m here to tell you that a prenuptial agreement isn’t scary and isn’t the awful scenario you may believe it to be. If written and negotiated correctly, the agreement protects both parties.
Take this into consideration: According to the 2010 U.S. Census, the median age of those entering into their first marriage was 28.5 for men and 26.7 for women. Typically, by this age a career path is established, children may exist from previous relationship(s), and assets are accumulated such as property, investments and/or retirement. These assets need to be protected. In previous generations, it was common for couples to marry young before they had established any assets and then build assets together. What people tend to forget is that if you never get divorced, you’ll never use the prenuptial agreement, but if on the unfortunate chance divorce cannot be avoided why not ensure some type of protection, a sort of insurance policy on the marriage. Prenuptial agreements can assist in making sure the material items you’ve accrued prior to the marriage are safeguarded for your children, parents or siblings should the marriage not work out. In the event of a failed marriage, would you like your retirement to be safeguarded for your children or your ex?
Further clarification can be provided with an understanding of prenuptial agreement (a.k.a. premarital agreement) and how they work. According to the Uniform Premarital Agreement Act, Civ. Pro. 61.079 Premarital agreements, a premarital agreement is a written agreement between two parties, signed by both and enforceable without consideration other than the marriage itself. One can contract obligations of: property, disposition of property upon separation, death or on any other event, establish, waive or eliminate spousal support (except pendent lite, which is a Latin term meaning “pending litigation” if this is required the Judge will order it), disposition of the death benefit of a life insurance policy, governing law and any other matter that does not violate public policy (i.e. Child support can NEVER be waived). The agreement becomes effective as soon as you get married. After the marriage, the agreement can be changed, revoked or abandoned. It also does not safeguard any assets that you accrue together or during the marriage, only what was yours before the marriage.
Unfortunately, having a prenuptial or premarital agreement does not mean that one can avoid the courtroom. Donald Trump detailed in his book, Trump: How to Get Rich, how his ex-wife Ivana challenged their prenuptial agreement. Trump stated: “[w]e needed a bus to get Ivana’s lawyers to court. It was a disaster, but I had a solid prenup, and it held up.”¹ Prenuptial agreements can be contested (challenged in court) if a party can establish that the agreement wasn’t entered into voluntarily, the agreement was entered into by fraud, duress or coercion, unconscionable, or the party did not have fair and reasonable disclosure of the financial obligation of the other party. This is key! Our firm always requires a full financial disclosure to be provided by both parties when entering a prenuptial agreement. You cannot contest a prenup by simply saying I didn’t understand or felt it was unfair. If you sign it, it’s official. According to the courts, a prenuptial agreement shall be construed and interpreted as any other contract. ² Although a trial court may be motivated to do what it considers to be fair and equitable, it retains no jurisdiction to rewrite the terms of the agreement. ³ According to Barakat v. Broward County House. Auth., 771 So. 2d 1193 (Fla. 4th DCA 2000), “[i]t is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.” If presented with a prenuptial agreement or if you’re considering having one drafted, take the time to read it, understand it, ask questions and seek out a lawyer to help make sure you’ve safeguarded your family and your future.
¹ Donald J. Trump, Trump: How to Get Rich (2004).
² Ledea-Genaro v. Genaro, 963 So.2d 749, 752 (Fla. 4th DCA 2007)
³ Rocha v. Mendonca, 35 So. 3d 973 (Fla. 3d DCA 2010)
Written by: Attorney Jennifer Sinker