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).