ENFORCEABLE POST-NUPTIAL AGREEMENTS IN FLORIDAFlorida Post-Nuptial Agreements

Under Florida law post-nuptial agreements are enforceable provided the post-nuptial agreement conforms to the requirements of Florida law.  The first requirement is that the post-nuptial agreement was not reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.  The second requirement is the post-nuptial is not unfair or unreasonable given the circumstances of the parties.

The second requirement that the post-nuptial agreement is not unfair or unreasonable requires a multi-layered analysis. A Florida court will initially determine whether the agreement is fair by examining the relative situation of the married parties, including age, health, financial status and education of the parties.

If a court finds the post-nuptial agreement is unfair, a presumption arises that the defending spouse concealed information or the challenging spouse lacked information about the defending spouse’s assets at the time of execution. To overcome this presumption, the defending spouse must show full disclosure was provided to the challenging spouse or the challenging spouse knew the extent of the parties’ marital assets before execution of the post-nuptial agreement.

Post-Nuptial Agreements and Full Financial Disclosure

To avoid a court invaliding a post-nuptial agreement for lack of disclosure, it is wise to provide the same level of disclosure required in the divorce process. The cornerstone of full financial disclosure is an accurate Florida family law financial affidavit. An accurate and complete financial affidavit exchanged by the spouses before execution of the post-nuptial will assist in preventing challenges to the post-nuptial agreement in the future.

If the court finds that full disclosure was made by the parties prior to execution of the post-nuptial agreement, the court will not invalidate a post-nuptial agreement because one spouse made a bad bargain. A bad deal won’t invalidate a post-nuptial agreement, but bad disclosure will.

Both Parties Should Have An Attorney

Although it is not a requirement, to avoid future enforcement problems, it is best if both parties have attorneys. When both parties have attorneys, the likelihood that a post-nuptial agreement with be invalidated for duress, coercion, or overreaching is greatly reduced. 

If one party refuses to hire an attorney, it is critical that the attorney drafting the agreement set forth in written correspondence that he or she may only represent one party while drafting a post-nuptial agreement. The attorney and represented party should encourage the unrepresented party, in writing, to obtain counsel and allow ample time for the non-represented party to review a post-nuptial agreement.

Post-Nuptial Agreements and Florida Attorney Consultation

If you are contemplating entering into a post-nuptial agreement, it is wise to consult with an attorney to ensure the agreement will be enforceable at a future date. The Taylor Law Office is happy to work with clients throughout Florida to assist them with drafting and developing enforceable post-nuptial agreements. For more information, contact attorney, Chris Taylor at 904-339-5298.

For a full discussion of post-nuptial agreements in Florida, read the Florida Supreme Court’s opinion in Casto v. Casto, 508 S. 2d 330 (1987).

 

 

Filing Exceptions to Florida Family Law Magistrates’ Temporary Needs Reports and Recommendations

Jacksonville, Florida Courthouse

It is common for one or both parties to file a motion for temporary needs in Jacksonville Florida divorce actions. The reasons to file motions for temporary needs are discussed in detail in a prior post on this blog. But, what if you do not agree with a magistrate’s report and recommendations to the court? Can you appeal a magistrate’s temporary needs report and recommendations to the Court?  Yes, but the process is not referred to as an appeal, it is referred to as filing “exceptions.”

Exceptions are Time Sensitive

If a party chooses to file exceptions to a magistrate’s report and recommendations, exceptions must be filed within 10 days. If magistrate serves a report and recommendations by mail, Fla. R. Civ. P. 1.090(e) allows an additional five (5) days to file exceptions.  If a party misses the deadline, a court will not consider the party’s exceptions.

Providing a Record to the Court

The party who files exceptions must provide a transcript of the hearing before the magistrate to the court. The party who filed the exception must also pay for the cost of the transcript.   Due to the cost of the transcript, a party should carefully consider filing exceptions and the likelihood of the court ruling in the party’s favor.

Standard of Review of Temporary Needs Hearings

An exceptions hearing does not provide an opportunity to retry the case; in fact, the court is prohibited from receiving new evidence. The court’s role at an exceptions hearing is restricted to from a review of the evidence and a transcript of the temporary needs hearing to determine: 1) whether there was “competent, substantial evidence” to support the magistrate’s ruling, and 2) whether the magistrate’s legal conclusions are “clearly erroneous” or whether the magistrate misconceived the legal effect of the evidence.

Contact The Taylor Law Office

If you have questions about exceptions  to a magistrate’s report and recommendations in a Jacksonville, Florida divorce case, or divorce or family law, call your divorce attorney in Jacksonville, FL, Christopher (“Chris”) Taylor, at 904-339-5298 or contact Chris through this website.