Is my prenuptial agreement enforceable?
To determine whether one’s prenuptial agreement is enforceable, we must look to Florida Statute § 61.079. First, and foremost, a prenuptial agreement must be in writing and signed by both parties and is enforceable without consideration other than the marriage itself. This simply means that, if the parties become married, nothing of value needs to be exchanged for entering in to the agreement.
Exploring the agreement itself, a prenuptial agreement may cover various topics which includes, but is not limited to, the following:
1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The establishment, modification, waiver, or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.
So long as what is agreed upon is not against public policy or illegal, it typically will be enforced by a court. Additionally, with respect to child support, the right of a child to support may not be adversely affected by a prenuptial agreement. Therefore, one cannot contract away his or her responsibility to provide support for a child.
But, what if my prenuptial agreement was changed, revoked, or abandoned? Section 61.079(6) provides that after marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration. Where any changes, revocation, or abandonment has been expressed in a writing, a court will likely find that such an agreement is no longer enforceable.
Lastly, section 61.079(7) governs enforcement. Situations in which a court may find that a prenuptial agreement is unenforceable includes, but is not limited to, the following:
1. The party did not execute the agreement voluntarily;
2. The agreement was the product of fraud, duress, coercion, or overreaching; or
3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(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
(c) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.