By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, August 28, 2015.
Everyone contemplating marriage should consider a prenuptial agreement. But being forced to sign one days before your wedding can be frightening. It can also be a reason to set aside the agreement in divorce.
There are other reasons to set aside a prenuptial agreement besides being forced to sign at the last minute. In one case, the wife tried to establish that her prenup was reached under duress, meaning too much pressure or influence that destroyed her “free agency”.
To prove duress, she complained she was seven months pregnant at the time the agreement, her pregnancy forced her to leave her job as a flight attendant, and the agreement was not signed until an hour before the wedding ceremony.
The court didn’t buy it. It turned out that the prenuptial negotiations stretched over months, her husband disclosed his assets, and they went back and forth over the terms.
She also had an attorney who drafted the agreement. After the agreement was drafted, the wife negotiated a favorable cost of living increase reflected in the handwritten changes.
What if a husband threatens that he would not marry without a prenuptial agreement? Will that constitute duress? No. It is not a threat or duress for the person who wants an agreement to make it clear that there will be no marriage without the agreement.
It is very important in trying to set aside a prenuptial agreement to know if a spouse fully and frankly disclosed his assets and income prior to the marriage.
Another method of attack is to establish that the agreement makes an unfair or unreasonable provision for a spouse, given the circumstances of the parties.
When claiming that an agreement is unreasonable, you have to show the parties’ relative situations: ages, health, education, and financial status. However, fairness is measured at the time of the agreement, not at the time you try to have it set aside.
Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable. Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.