Drafting an Enforceable Florida Prenuptial Agreement

You probably have heard stories of people who had prenuptial agreements, thought their assets were secure, and yet, at the time of the divorce, had those prenuptial agreements thrown out by a judge for being unfair, overreaching, or being executed without sufficient financial disclosure.

To address the concerns of those who are thinking of getting a prenup, I recently wrote an article for The World of Collaborative Practice Magazine in which I discussed an essential process to utilize if you want an enforceable agreement:

I am seeing more and more clients – especially those who have previously experienced marriage and divorce – come to my office to learn about prenuptial (also known as premarital) agreements. Though they certainly do not go into the marriage planning to divorce, they know the statistics and want a prenuptial agreement to protect them and ensure that they do not get trapped in endless litigation later on.

At the same time, I find fewer and fewer family law attorneys who are willing to draft prenuptial agreements. Lawyers fear that, for whatever reason, the agreement could later be found to be unenforceable. Void prenuptial agreements create, at best, client dissatisfaction with the drafter and, at worst, risk of a malpractice suit.

Nevertheless, the demand for prenuptial agreements is increasing. How does an attorney minimize the risk that the agreement will be invalidated? The answer is close to our hearts, given that the interdisciplinary collaborative family law process is tailor-made for drafting prenuptial agreements.

In my jurisdiction of Florida, like many jurisdictions, there are two main methods to challenge the validity of a prenuptial agreement: the direct method and the indirect method. See Casto v. Casto, 508 So. 2d 330 (Fla. 1987). In the direct method, the challenging spouse must establish that the agreement was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching. In the indirect method, the challenging spouse must show that the prenuptial agreement is blatantly unfair. Once the unfairness is established, then the prenuptial agreement will be invalidated unless the defending spouse can show that (i) he or she made full, frank disclosure of his or her financial situation or (ii) the other spouse had a general knowledge of the character and extent of the defending spouse’s assets and income.

With concerns related to the direct method, the use of a neutral forensic financial professional in the collaborative process helps to lessen the likelihood that the less wealthy fiancé will fall victim to fraud, deceit, or misrepresentation. Further, the utilization of a neutral facilitator/mental health professional in a collaborative process helps reduce the risk of duress, coercion, and overreaching, as part of the facilitator’s role is to identify power imbalances and ensure that each client’s concerns are addressed.

Similarly, in the indirect method of challenging the validity of a prenuptial agreement, the facilitator and the team dynamics of collaborative practice make it less likely that a party will enter into an “unfair” agreement. And, even if he or she does, the mere use of the neutral financial professional will bolster any argument by a defending spouse that (i) he or she was open in his or her finances and (ii) the challenging spouse was given the tools to understand the character and extent of assets and income.

The use of a neutral facilitator and neutral financial professional in a collaborative process may initially cost more than the traditional prenuptial negotiation process, and the wealthier fiancé is likely to have to pay for these additional upfront costs. However, the safeguards for the less wealthy fiancé that are built into the interdisciplinary collaborative process ultimately provide a judge cover for upholding a prenuptial agreement. This can save the wealthier fiancé tens of thousands of dollars (or more) in litigation costs in the event that a prospective marriage breaks down.

As laws regarding prenuptial agreements vary from jurisdiction to jurisdiction, and as the family laws within states change frequently, there can be no guarantee that a prenuptial agreement will be found valid years or decades later. However, utilizing the interdisciplinary collaborative family law process in drafting a prenuptial agreement gives the agreement the best chance of surviving judicial scrutiny and remaining enforceable.

The same concept applies to postnuptial agreements, which are similar to prenuptial agreements except that they are entered into after a couple is already married.

If you have questions regarding prenuptial agreements and you wish to speak with a Florida family law attorney, schedule a consultation with The Law Firm of Adam B. Cordover, P.A., at (813) 443-0615 or fill out our contact form.


About Adam B. Cordover, Attorney-at-Law

Family Diplomacy is dedicated to helping clients restructure their families privately and respectfully. We practice exclusively in out-of-court dispute resolution, with a focus on collaborative divorce and family law, mediation, direct negotiations, and unbundled legal services. We maintain this out-of-court practice because we strongly believe that family disputes should be resolved in a private conference room, not in a hostile and public courtroom environment. This unique perspective on family law stems back to Adam B. Cordover’s experience studying International Affairs in Washington, D.C., and abroad. Adam had the rare opportunity to work closely with ambassadors and diplomats from war-torn regions around the world. He traveled around the globe, learning from diplomatic leaders as they applied dispute resolution techniques to tackle seemingly impossible conflicts. It dawned on him: If these techniques can work in the complex world of International Relations, why not Domestic Relations and Family Law? This realization lead Adam to create an exclusively out-of-court practice and to bring a more peacemaking approach to family law. In his previous role as a litigation attorney, Adam witnessed parties experience the negative emotional and financial effects that long, drawn out divorce battles can have on families. As a result, Adam has become a strong proponent of the Collaborative Process, where a structure is put in place so that life’s hardest moments do not have to be any more difficult than necessary. A thought leader in the international collaborative law community, Adam successfully spearheaded an effort of the Thirteenth Judicial Circuit to draft an administrative order safeguarding the principles of collaborative family law (just the fourth such administrative order in Florida). Adam has been featured in or interviewed about collaborative practice by the Tampa Bay Times, Tampa Tribune, Orlando Sentinel, Miami Herald, Tampa Bay Business Journal, Florida Bar News, NBC, Fox 13, Bay News 9, ABC Action News, The World of Collaborative Practice Magazine, and Spirit FM 90.5. Adam regularly speaks at professional and civic organizations locally and internationally regarding the collaborative process. Adam B. Cordover is president of Next Generation Divorce, a 501(c)(3) and Florida’s largest interdisciplinary collaborative practice group with member attorneys, mental health professionals, and financial professionals throughout Hillsborough, Pinellas, Pasco, Sarasota, and Manatee Counties. Adam is also on the Executive Board and co-chair of the Research Committee of the Collaborative Family Law Council of Florida. Further, Adam is a graduate of the inaugural class of the Leadership Academy of the International Academy of Collaborative Professionals. You can learn more about us and our services at www.FamilyDiplomacy.com. Attorney Adam B. Cordover is admitted to the Florida Bar and the United States District Court, Middle District of Florida. His office is located at 412 East Madison Street, Suite 824, Tampa, Florida 33602.
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