How to Attack a Prenuptial Agreement
Written by: Kenneth E. Rhoden, Esquire
- Part 1: Prenuptial Intro
- Part 2: Preparing Prenuptial Agreements
- Part 3: Attacking Prenuptial Agreements
There are many ways to set aside a prenuptial agreement. There are strict requirements for creating a valid prenuptial agreement. An attorney experienced in creating and attacking prenuptial agreements will uncover all the facts before, during, and after the drafting and execution of a prenuptial agreement. What is actually written in the agreement is just a starting point for an attack on a prenuptial agreement. Prenuptial agreement generic forms are inexpensive but are frequently defective and easy to attack. The prenuptial agreement attorneys at Mario, Gunde, Peters, Rhoden & Kelley, LLC. know how to attack prenuptial agreements. We serve all of Brevard County including Palm Bay, Melbourne, Viera, Cocoa, Merritt Island, and Titusville from our two offices in Melbourne and Cocoa Village.
Florida Statute 61.079 (7) sets out some of the basic reasons a prenuptial or premarital agreement may be unenforceable. You would only need to prove one of the following three grounds for a court to set aside or refuse to enforce an agreement. The different grounds overlap to a great extent and have been the subject of extensive case law. I will briefly explain each ground here.
1. The party did not execute the agreement voluntarily
This means that at the actual signing of the agreement one party is not acting of their own free will. The signing could be under duress or coercion. For example, if a bride is presented with a prenuptial agreement for the first time on her wedding day and told to sign or the wedding is off, her signature would most likely not be voluntary. A court would have little trouble setting aside a prenuptial agreement signed under such conditions.
2. The agreement was the product of fraud, duress, coercion, or overreaching
This provision shifts the focus from the actual signing of the prenuptial agreement to the period of time when the agreement is being created. This would typically take place in the weeks or months before a wedding.
Fraud includes lying, deception, deceit or being sneaky. For instance, creating a false financial statement for a business or altering a tax return to show less income could be fraud. Duress and coercion usually involves threats to do harm. It can be physical harm to people or property. Duress can also involve threats to expose secrets or damage a person’s reputation. Threatening to cancel the wedding can also create duress on the part of the signing party.
A court may find a party was overreaching where there is a substantial inequality of bargaining power or other circumstances where there is an absence of meaningful choice. Picture a youthful Donald Trump bargaining with an 18-year-old high school dropout who works as a waitress. She does not hire a lawyer to help her and Donald says he will always take care of her if she will just sign the 400-page prenuptial agreement. If that agreement is at all unfair it would not be worth the paper it is written on and a court would set it aside due to overreaching.
3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
- 3(a) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
- 3(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
- 3(c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. Florida Statutes 61.079(7)(a)
Except for extreme circumstances a court will not set aside a prenuptial agreement just because it is unconscionable. As Florida Statute 61.079(7) states, the prenuptial agreement must be unconscionable “and” have other defects as shown above.
Section 3(a) focuses on disclosure. Many a prenuptial agreement has been set aside because one prospective spouse tried to hide their true financial circumstances from the other prospective spouse. Over the course of the marriage the other spouse learns more about the finances. This information is then used as a starting point in a divorce to attack the prenuptial agreement.
Section 3(b) provides that a failure to correctly waive financial disclosure is grounds to overturn a prenuptial agreement. Attempts to waive financial disclosure can provide good grounds to attack a prenuptial agreement. The law does not favor waiving what you do not fully know or understand.
Section 3(c) focuses on knowledge of the assets or obligations of the prospective spouse. Even if one prospective spouse fails to disclose financial information the other prospective spouse may be fully aware of the other parties’ financial picture. Perhaps they have known each other all of their lives. A certified public accountant that handles all of a prospective spouse’s financial affairs would have trouble attacking a prenuptial agreement for lack of knowledge. Of course this is rarely the case.
Florida Statute 61.079 (7) provides only a starting point for an attack on a prenuptial agreement. If you are thinking of challenging a prenuptial agreement or if you are faced with defending one, consult with a lawyer experience in preparing, attacking, and defending prenuptial agreements.
The family lawyers at Mario, Gunde, Peters, Rhoden & Kelley, LLC. have decades of experience in preparing, attacking, and defending prenuptial agreements. We are the largest and most experienced family law and criminal law firm in Brevard County. Our main office is located in Cocoa Village on the corner of SR 520 and Riveredge Boulevard. The Melbourne office is close to the Melbourne Square Mall on Hibiscus Boulevard. We serve Titusville, Cocoa, Merritt Island, Viera, Melbourne, Palm Bay and all other areas of Brevard County.