Do you need a lawyer to draft your prenuptial?
Written by firm partner Kenneth E. Rhoden, Esquire
You do not need an attorney to prepare a prenuptial agreement. Also, you do not need a parachute to jump out of an airplane, but having an attorney, and a parachute, is a very good idea. Both can save you from misfortune.
I had a recent divorce case where the other side claimed there was an enforceable prenuptial agreement that should control how the issues in the case were decided. After looking over the purported prenuptial agreement, I quickly concluded the agreement was not enforceable.
Two problems were apparent after talking to my client, the wife, and reading the agreement. First, the agreement was signed by the other spouse two days before the wedding. The agreement was signed by my client the day before the wedding and she said she never saw the agreement until the day before the wedding. The bride did not have a fair opportunity to review the agreement and consult legal counsel. She was also told she had to sign in order for the wedding to proceed.
Under Florida Statute 61.079, the Uniform Premarital Agreement Act, an agreement is not enforceable if the agreement is not signed voluntarily and with an absence of duress or coercion. Imagine the stress the bride was under to sign. With the wedding the next day, the food had been ordered, the flowers were ready, guests had come from out of town, and the rehearsal dinner was later that evening.
The husband-to-be was telling the bride-to-be that his family insisted on the agreement and that they could ignore it after the marriage and besides they would never divorce. After the wedding, the couple did ignore the agreement and the happy bride did put it out of her mind, but the husband did not forget about the agreement and it was safely stored for nine years of marriage in the husband’s family’s safe deposit box.
The second egregious flaw in the prenuptial agreement was the lack of financial disclosure. The agreement had vague references to the husband’s substantial assets but few specifics. Nothing at all was said about the husband’s income or trust distributions. Florida Statute 61.079 requires there be a fair and reasonable disclosure of the property or financial obligations of the other party. After all, you do need to know what you are giving up in order to make a fair deal.
The agreement had been drafted by the husband with the help of a paralegal service. It was never clear what the paralegal service had told the husband, but he did not follow proper procedure. When the divorce started, the attorney on the other side put up some initial resistance but had to concede that the agreement was not enforceable. We negotiated a reasonable settlement that was much more favorable to the wife than the prenuptial agreement would have been.
Hard feelings were caused on each side by this unnecessary fight. If the husband had consulted with an attorney experienced in litigating premarital agreements, all the problems could have been avoided. To have a valid prenuptial agreement, each side must be treated fairly. If you try to cut corners or trick or force your spouse to be into an agreement, it may well backfire.
If you are contemplating having a premarital agreement, post marital agreement, or marital settlement agreement prepared, contact the attorneys at Mario, Gunde, Peters, Rhoden & Kelley using the website Legal-Eagles.com or by phone 321-631-0506. Our firm has decades of experience dealing with marital agreements. We handle simple agreements that have few issues and assets, and complex agreements involving substantial assets, corporations, and income. Mario, Gunde, Peters, Rhoden & Kelley serves all of Brevard County including Melbourne, Palm Bay, Rockledge, Merritt Island, Cocoa, Indian Harbor, Satellite, Melbourne Beach, and Titusville. Call today for a free consultation with one of our experienced matrimonial lawyers.