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Premarital Agreements

Premarital agreements in Florida are governed by statute – F.S. 61.079 – The Uniform Premarital Agreement Act. Premarital agreements become effective upon the marriage of the parties and must be in writing and signed by both parties, although there may be some limited circumstances where oral agreements are enforceable. They are enforceable without consideration other than the marriage itself. They can be amended, revoked or abandoned only by a written agreement signed by the parties.

The act provides that the parties to a premarital agreement may contract with respect to property rights, spousal support, the making of a will or trust and the disposition of property upon separation, divorce or death or the occurrence of any other event or any other matter as long as it is not in violation of either public policy or the criminal statutes.

Premarital agreements generally must be fair and entered into voluntarily. There must be fair and reasonable disclosure of the financial status of the party who proposes the agreement.

Defenses to the enforcement of a premarital agreement can be such things as: fraud, duress, coercion or overreaching.

Certain things can be waived in a prenuptial agreement such as the right to spousal support following dissolution of the marriage, the right to modify alimony where the waiver is expressly stated, the right to equitable distribution of property, spousal rights in a probate context such as right to intestate succession, pretermitted spouse and elective share rights, homestead rights

Some things cannot be waived in a prenuptial agreement, such as temporary support, child support, child custody and visitation.

It is unclear whether a provision contracting away a future obligation to pay attorneys’ fees for contesting the agreement can be upheld. The issue of whether an impecunious spouse should be prevented from challenging the validity of the agreement because of inadequate resources remains unclear.

It is also unclear whether pension rights can be validly waived in a prenuptial agreement. Pension rights are governed by the U.S. statute known as ERISA which requires that pension rights be waived by a spouse, not a spouse to be. Accordingly a premarital agreement should be separately re-executed by the waiving party after the marriage and separate waivers should be signed.

Finally, the timing of the financial disclosure, the negotiations and the signing of the premarital agreement should all be well in advance of the wedding. Otherwise, if all these things occur shortly before the wedding, it will be easy for a challenging spouse to make claim for duress or undue influence.

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