Prenuptial agreements are looked at with much greater scrutiny by the Courts than an average contract. When analyzing a prenup, the Court will carefully examine the circumstances surrounding the agreement. This is because the Court knows that when two people execute a prenuptial agreement they are in an emotionally complex situation as two people in love preparing for married life. They are not operating “at arms length” like two business owners trying to close a business deal. It’s a very different situation.
Factors that do NOT matter when trying to toss a prenup
- Cheating or Adultery: Adultery during the marriage is not grounds to set aside a prenuptial agreement. In essence, adultery or other marital misconduct that would lead to divorce are contemplated before the marriage. Otherwise, there wouldn’t be a need for a prenuptial agreement.
- Inability to Read the Agreement: “I didn’t read the agreement, I just signed it” will not help a person seeking to toss out a prenuptial agreement. In Florida, a person who signs a contract is presumed to have read the contract and know what’s in it. You have a duty to review your own prenuptial agreement before you sign it.
- A Bad Deal: Perhaps surprisingly, having a terrible, unconscionable deal is not grounds to set aside a prenuptial agreement. Bad deals are still enforceable provided they are entered into freely and voluntarily and are not against the public policy of the State of Florida.
- Change in Circumstances: Just because situations change after signing the agreement does not mean that the agreement will be set aside. Consider the case of a woman who is working full-time making good money and who signs a prenup and both parties waive the ability to seek alimony in a divorce as part of the prenuptial agreement. During the marriage, the woman gets hit by a Walmart truck and is unable to work again. While this is unfortunate, the terms of the prenuptial agreement are still the same, and the change in the woman’s circumstances don’t change a thing.
- Representation: Even if one or both of the parties were unrepresented when executing the prenuptial agreement, the contract will still be upheld.
What Does matter when challenging a prenuptial agreement
The person who is trying to toss the prenuptial agreement has the burden of making the case to the Court. That person will need to prove one of the following:
- That he or she did not execute the agreement voluntarily;
- That the agreement was a result of fraud;
- That the agreement was the result of duress, coercion, or overreaching;
- That the agreement was unconscionable when it was executed, and before the agreement was executed the party testing the validity:
- Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
- Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party before the disclosure was provided; or
- Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
Setting Aside the Prenuptial Agreement Because of Fraud
Fraud is an intentional misrepresentation or omission of an important fact in order to get another person to do what you want. For example, consider the case of a Future Husband who lies about his assets to his Future Wife before signing a prenuptial agreement. The Future Wife, relying on the Future Husband’s lie, decides the prenuptial agreement is a good deal and executes. Should the Future Wife want to challenge the prenuptial agreement later, the Fraud from the Husband would be the best place to start.
Setting Aside the Prenup Based on Duress, Coercion, or Overreaching
Duress is a “condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party.” In a family law case, duress is not just the normal stress of planning a wedding but something more. It is not considered duress, for example, for a party to refuse to get married if a prenuptial agreement is not signed. However, if a party were to threaten to leak nude photos of the other if he or she failed to sign an agreement, then that might cause sufficient duress for the Court to set aside the agreement.
Another example is when two people sign a prenup days or even hours before getting married. Is there a big party planned? Guests arriving from out of town? In this case, the Courts may find that the party challenging the prenuptial agreement was operating under duress and therefore signed the agreement involuntarily.
Lack of Financial Disclosure
Perhaps the most common reason for getting a prenuptial agreement tossed from Court is due to the parties not sharing enough financial information with each other prior to signing the agreement.
There is a longstanding rule of law in Florida that for the prenup agreement to be voluntary both parties must know exactly what they are getting into. That means the Wife needs to reasonably know what the Husband’s assets are at the time of marriage and the Husband needs to know the same about the Wife’s assets. There is also case law that suggests both parties need to know the income of the other party at the time of marriage.
Surprisingly more common than one would guess, one party may claim that they did not sign the contract at all. In these cases, the parties may need a handwriting expert to determine if the agreement was signed or not. This happens especially in cases where the parties have been married 20 to 30 years or more and one of the parties truly may have forgotten they signed the agreement! If the marriage has derailed to the point where the parties do not trust each other, then a party may assume that the only way the agreement came about was by forgery!
When looking to set aside a prenuptial agreement based on lack of financial disclosure, we look for:
- Were financial affidavits signed and executed by the parties and attached to the prenup?
- Did the parties create an itemization and statement of assets and attach these to the prenuptial agreement?
- Were bank statements or pay stubs disclosed to the other side?
- Did a party make a voluntary waiver of disclosure and make it clear in the prenuptial agreement?
How to Set Aside a Prenuptial Agreement
- Complaint for Declaratory Relief: When filing for divorce, the party who stands to benefit from the prenuptial agreement will ask the Court to ratify the agreement. The other party, therefore, will often file a Complaint asking the Court for declaratory relief. After all, we need the Court to address the issue of the prenuptial agreement early in the process. If one party wants to ratify the prenup and the other wants to throw it out, it is tough to come to an agreement outside of Court unless the Court determines if the prenuptial agreement is valid or not.
- The burden of proving that the prenuptial agreement needs to be set aside is on the person who wants to throw it out. The person defending the contract does not have to prove anything, although that person may need to rebut one of the arguments mentioned above.