How to Prepare an Unbreakable Prenuptial Agreement

Written by: Kenneth E. Rhoden, Esquire

• Part 1: Prenuptial Intro
• Part 2: Preparing Prenuptial Agreements
• Part 3: Attacking Prenuptial Agreements
• Part 4: Enforceable Oral Premarital Contracts

A prenuptial or premarital agreement should not just be unbreakable no matter how aggressive the challenge, it should also be so well prepared and so well executed that it is never challenged. An overwhelming show of force can intimidate an opponent into surrendering without a fight.  In the event of a divorce, when your soon to be ex-spouse’s lawyer reviews the prenuptial agreement we want the lawyer to say, “I am sorry but this prenuptial agreement is ironclad.  You would be foolish to attack the agreement because the court would deny any challenge.”  So how do the lawyers at Mario, Gunde, Peters, Rhoden & Kelley, LLC make a premarital or prenuptial agreement unbreakable?  I will not disclose all of our trade secrets but will discuss some of the basics below.

1. Start Early

A good time to start thinking about a prenuptial agreement is when you first start thinking about marriage.  Consult with a lawyer experienced in family law and premarital agreements when you begin to contemplate marriage.  Among the subjects discussed at an initial meeting should include Wills and Trusts.  Assets can be placed in Trust so they are not part of the marital estate when you get married.  Under Florida Statute 732.301 a prenuptial agreement can waive a spouse’s right to inherit under a will.  Florida Statute 732.702 provides that a prospective spouse can waive their right to inherit even if, after marriage, their spouse dies without a will. Our firm has attorneys who focus on wills, trusts, and probate.  We work closely with you to ensure your financial affairs are in a proper posture even before we start to draft your prenuptial agreement.

Once you have consulted with an attorney and decided to have a prenuptial agreement prepared you should tell your prospective spouse as soon as possible. The more time that passes between your prospective spouse learning that you are having a prenuptial agreement prepared and the prospective spouse receiving a copy of the agreement and the execution of the agreement the better.

Ideally your prospective spouse will have his or her own independent attorney.  Informal discussions can take place that eventually result in a written agreement. The more involved your prospective spouse, and his or her lawyer, is in these discussions the stronger your prenuptial agreement will be once complete. These discussions should be documented.  It is very hard to attack a prenuptial agreement when both parties participated in the process of creating the agreement.

2. Disclose, Disclose, Disclose

Prompt and full disclosure of your entire financial situation helps make a prenuptial agreement enforceable.  Income, assets, debts, including contingent assets, income, and debts should all be disclosed.  For example, if you are working on an invention or a novel, that should be disclosed.  If you start making millions of dollars on your invention a vengeful soon to be ex-spouse may claim it was invented during the marriage and they are entitled to some of the profits.  A prenuptial agreement should include disclosure of the invention and where proceeds will go.

Florida Family Law Forms 12.902(b) and 12.902(c) are financial affidavits that are good starting points for a complete disclosure.  Any financial information not requested by the forms should be added.

Documents should be provided including income tax returns, pay stubs, 1099’s, bank statements, 401(k) statements, investment account statements, deeds, mortgages, credit card statements, promissory notes, IOU’s, boat titles, financial statements, appraisals and Will and Trust documents.  Basically any documents establishing your financial situation should be disclosed.  Good records should be kept recording what documents have been provided and a list of the documents incorporated into the prenuptial agreement.

3. Persuade? Yes. Pressure? No.

Do not pressure the other party into signing the prenuptial agreement.  Anything that could be interpreted as duress, coercion, or overreaching could be grounds to set aside the entire prenuptial agreement.  Bad behavior to coerce the other party into signing an agreement could come back to haunt you later as well as damaging the love and affection between the parties.

On the other hand, it is completely fair to put forth your best reasons as to why the prenuptial agreement should be signed. It is reasonable to want to protect the assets you may have worked long and hard to acquire. Perhaps you want to enjoy your assets or leave them to your children or donate to a particular charity. Knowing that many marriages fail is a legitimate and sufficient reason to enter into a prenuptial agreement. A business owner may want to ensure the business will survive any dissolution of marriage. These are just a few examples of calm appeals to reason or to persuade your prospective spouse to sign a prenuptial agreement that do not provide grounds to overturn a prenuptial agreement.

4. Both Parties Should Have an Attorney

To help avoid litigation in any future divorce both parties should be represented by competent counsel throughout the discussions regarding the prenuptial agreement. The drafts of the agreement should include provisions suggested by both attorneys. Finally, counsel should be present when the prenuptial agreement is executed. Ideally the prospective spouses should execute the prenuptial agreement separately in their own attorney’s office. It is rare for a court to overturn a prenuptial agreement where both parties were represented by competent counsel.

5. You Must Have a Well-Drafted Agreement

The prenuptial agreement must be clear, precise, detailed, and understandable.  The financial disclosure must be incorporated into the agreement. Assets, income and debts must be clearly identified.  It does little good to say Mary gets “the house” when the parties own four houses. Each party’s signature must be notarized and verified by two witnesses.  If challenged, every word of the premarital agreement will be scrutinized. The premarital agreement lawyers at Mario, Gunde, Peters, Rhoden & Kelley, LLC. will make sure your agreement is solid and will stand up to a vigorous challenge.

This is just a brief explanation of some of the ways to create a prenuptial agreement that will likely never be challenged and if challenged will be enforced by the court. Our firm has been in business in Cocoa, Florida for over 40 years.  In that time, we have prepared many prenuptial agreements.  Not one has ever been overturned or even challenged. The institutional knowledge our firm has built up over the years is an invaluable resource to our clients.  Put our knowledge and experience to work for you.  Call today for a free consultation.

Mario, Gunde, Peters, Rhoden & Kelley, LLC. practices in Brevard County and Central Florida.  Our Melbourne office is near the Melbourne Square Mall and convenient to Palm Bay, Melbourne, Indialantic, and Indian Harbor Beach.  Our Cocoa Village office is convenient to Merritt Island, Cocoa Beach, and Titusville.

Continue reading about prenuptial agreements in Part 3: Attacking Prenuptial Agreements.

• Part 1: Prenuptial Intro
• Part 2: Preparing Prenuptial Agreements
• Part 3: Attacking Prenuptial Agreements