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Articles Posted in Prenuptial and Postnuptial Agreements

As anyone who’s been through divorce litigation knows, getting a favorable ruling from the judge is a huge step, but it may not be the last step. There may be occasions where, despite a clear order from the court, your ex-spouse doesn’t do what he/she was supposed to do. This is one of the many reasons why it pays to have a skilled South Florida family law attorney on your side: so that you can not only win your case in court, but can win the legal battles that come afterward.

For example, look at A.L. and K.M., a married couple who created a postnuptial agreement. That agreement said that the wife would pay the husband a one-time equitable distribution payment. The payment, which was $250,000, was due within seven days of the spouses’ signing of the agreement.

The wife didn’t pay the whole $250,000, though. Instead, she paid $225,000. The husband responded by filing a contempt motion. The magistrate who heard the case initially recommended that the court rule in favor of the husband and order the wife to pay the remaining $25,000.

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You’ve probably heard of ”prenuptial agreements” and perhaps “marital settlement agreements,” too. Another agreement, slightly less well-known but no less important, is the “postnuptial agreement.” Each of these three types of legally binding agreements can be very powerful tools and have a very substantial impact on you should you go through a divorce. For those reasons (and others,) it is important to have a knowledgeable South Florida family law attorney on your side to advise you on the differences and how best to protect yourself and your family.

A prenuptial agreement is, of course, an agreement made in anticipation of marriage and a marital settlement agreement is made in anticipation of an order of divorce. A postnuptial agreement is something, however, that a couple can create either in anticipation of divorce (as the marriage is breaking down) or while the marriage is still vibrant and intact.

A recent case from Palm Beach County highlighted some of the differences between each of those agreements in terms of enforceability and the importance of those differences. The case involved G.S. and D.S., who married in 1977 but separated for a time in the mid-1990s. They eventually got back together and, in late 1996, they signed an agreement that dealt with the distribution of certain assets in the event of a divorce. At that time, the pair was married, living together and not even thinking about getting divorced.

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If you’re familiar with ante-nuptial agreements (a/k/a “prenuptial agreements”) at all, then you’re probably familiar with the stereotype surrounding one variety of prenuptial agreement. That stereotype is a financially savvy fiancé who uses his less sophisticated fiancée’s desire, or perhaps need, to marry (along with her lack of financial savvy) as a means to get her to sign a one-sided prenuptial agreement, often at the last minute before the wedding.

Of course, many prenuptial agreements are the result of fair, good-faith negotiation and full, honest disclosure on both sides. Some, though, more closely resemble the “stereotype” illustrated above. When they do, and when they are the result of one fiancé placing an undue amount of pressure on the other fiancée, then it may be possible under the law to get the prenuptial agreement invalidated under the legal concept of “duress.” To find out more about invalidating (or enforcing) your prenuptial agreement, be sure to reach out promptly and speak to an experienced South Florida family law attorney.

One recent case from Miami gave a useful illustration of what impermissible duress might look like. Reportedly, six days before H.Z. and R.A.N.’s wedding in Venezuela, and with the bride-to-be four months pregnant with the couple’s second child, the man handed the woman a draft copy of an ante-nuptial agreement that the man’s attorney had written. The agreement made no provision for alimony or equitable distribution. It also lacked many important financial disclosures, but the man promised to provide the financial disclosures before the wedding.

The law gives parties wide latitude in how they structure the terms of their contractual agreements. The same is generally true when it comes to spouses and the terms of their prenuptial agreements. For example, one Florida couple entered into a prenuptial agreement that waived all rights to future alimony claims but permitted the wife to receive a “salary” for two years after a divorce. According to a recent Fourth District Court of Appeal ruling, that agreement was valid and meant that the courts could not order an award of alimony and couldn’t use contempt powers if the husband didn’t pay the salary.

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A Florida man successfully appealed a trial court ruling that declared the couple’s home to be the wife’s separate property. The Fifth District Court of Appeal overturned the trial court’s ruling, based upon the wording contained in the couple’s prenuptial agreement. That agreement gave each spouse the right to give away, sell, or distribute via estate planning tools his or her separate property. By transferring the title of the couple’s home from her name alone to the husband’s name alone, the wife completed exactly such a valid gift, which made the property the husband’s alone.

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An important new Florida Supreme Court decision helps clarify the applicability of waivers in prenuptial agreements. The court concluded that, if a prenuptial agreement’s terms made it clear that a spouse was waiving and releasing all rights and claims to the other spouse’s separate property, that waiver included the increase in value of those non-marital assets, even if the agreement did not expressly cover increased value, and the increase was due to marital efforts or funds.

The case brought to a conclusion the divorce dispute between H.H. (husband), a mortgage broker, and his wife, D.H. The couple married in February 1986 and remained married for 22 years. The month before their marriage, both spouses signed a prenuptial agreement. The agreement stated that, if the spouses purchased a property in both their names, the asset was presumed to be owned 50-50 between them, but if the husband purchased an asset in his own name, even during the marriage, that asset was his separate property.
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One of the more popular celebrity news stories of this spring has involved the impending divorce of renowned chef and Food Network TV star Bobby Flay, who filed to end his decade-long marriage to actress Stephanie March. According to a celebrity news website, TMZ, the couple signed a prenuptial agreement before their 2005 wedding, but the wife plans to challenge the validity of the agreement. While the dispute regarding the Flay-March prenuptial agreement will, unless settled between the spouses, be decided by a New York court, the story does raise a relevant issue for Floridians with prenuptial agreements who are contemplating divorce: namely, what are circumstances under which Florida law will prevent a prenuptial agreement’s enforcement?

Florida Statutes Section 61.07(7) sets out a list of several reasons why a prenuptial agreement can be set aside. If one of the spouses did not sign the document voluntarily, it is not enforceable. If a spouse received cash or other valuable assets in exchange for signing the prenup, that may allow for setting the agreement aside.
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In one recent Florida divorce, a trial court’s failure to give the husband a meaningful opportunity to be heard in the case, as well as the court’s improper shifting of the burden of proof from the wife to the husband regarding whether Scotland law or Florida law should govern the divorce, forced the 5th District Court of Appeal to reverse the trial court and send the case back for a new trial.

Before the former couple married in Scotland, they executed a “Minute of Agreement,” which is the approximate equivalent of a prenuptial agreement. The couple’s agreement stated that, if they divorced, the court deciding the case should use Scottish law.
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Prenuptial agreements are extremely valuable tools to establish financial boundaries and protect assets each spouse brings into the marriage. To be legal, both spouses must make a genuinely voluntary decision to sign the agreement. Forcing your future spouse to sign a prenuptial agreement in the middle of the night mere hours before your wedding is a recipe for failure, as it raises a strong inference that your spouse signed under duress, and not voluntarily. A husband discovered this in a recent case, where the 2d District Court of Appeal recently voided the couple’s prenuptial agreement, ruling that the husband’s timing raised a clear issue of coercion.

A man and his girlfriend scheduled their wedding for July 13, 2002, in Las Vegas. Less than a month before the wedding, he presented a draft of a prenuptial agreement to her. An attorney advised her not to sign, because the agreement waived her right to claim a statutory elective share, receive alimony or share in assets acquired during the marriage. Near midnight on the eve of the wedding, the man arrived at the Las Vegas airport, handed the girlfriend another copy of the agreement, and demanded she sign it and get it notarized. She complied.

When the wife filed for divorce in 2009, the husband asserted that the prenuptial agreement controlled the terms of asset distribution. The wife sought to set aside the agreement, arguing the court should void it because the husband improperly coerced her to sign it. The trial court sided with the husband, concluding that the wife waited too long to bring her claim of coercion, but the court of appeal overturned that ruling.
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A flawed prenuptial agreement has made it all the way to the highest court of New York State, with the New York Court of Appeals ruling that a flaw in formation can be deadly to a prenup’s enforcement. In a recently decided case, the court ruled against the husband (6-0) for failing to properly acknowledge his signature. Errors like this reinforce the basic contractual nature of prenuptial agreements and stress both the formalities that must be followed and the importance of contacting an experienced matrimonial attorney when making such important life decisions.Millionaire Corner, a website for the well-to-do, released a survey this April that dispelled commonly held stereotypes regarding certain gender views towards prenuptial agreements. When given the choice between five different views ranging from very pro-prenup to very anti-prenup, women identified more with pro-prenup side of the spectrum and their male counterparts identified more towards the antiquated, negative view of prenups. The most telling of these indicate that women lead men, 62% to 54%, in recommending a prenup to a couple getting married, and approximately 50% “don’t feel there are any disadvantages” to a prenuptial agreement between the parties. The same website published another survey days later showing counter-intuitive views of prenups held by older generations, with more than two-thirds of participants over the age of 61 recommending a prenuptial agreement.

Prenuptial agreements, as discussed in a previous post, can often include strange, unorthodox terms. A common specific type of prenup has earned a name among those in the industry: the love contract. Love contracts are meant to put on paper an agreement regarding how the intimate love life of the couple will be conducted. Often in these contracts the terms specify either frequency or methods of lovemaking.

Such language in a prenuptial agreement really can muddy the waters for very limited enforceability, and such obligatory scheduling of a generally spontaneous act could trivialize many portions of the relationship. Suzanne Pelka, a sex therapist, explains that it is “really this false sense of control that we have because we don’t know what’s gonna happen tomorrow.”

So, what happens when someone tries to fight such a clause? Typically these clauses are not enforceable within the marriage. Aside from demeaning the basic nature of intimacy, if a partner fails to meet the obligations outlined by the agreement, the only thing it may affect is the division of property during a divorce. These documents can not be referred to during the marriage or act as a supporting document to how the partner must act. No breach of contract cause of action can exist when it comes to “love contracts”.
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