Prenuptial & Post Nuptial Support | Family Lawyer South Florida
Prenuptial & Post Nuptial Agreements
Prenuptial and postnuptial agreement attorneys Sean L. Collin, Nabeel K. Basit and Ayla Walker represent individuals contemplating a prenuptial agreement prior to marriage or a postnuptial agreement after a marriage. These agreements are extremely beneficial and valid, if properly prepared by an experienced attorney.
What is a prenuptial agreement?
A prenuptial agreement (also known as a “pre-nup”) is simply an agreement entered into between the parties prior to their marriage addressing what happens in the event of a divorce.
What is a postnuptial agreement?
A postnuptial agreement (also known as a “post-nup”) is simply an agreement entered into between the parties during the marriage addressing what happens in the event of a divorce.
Prenuptial and postnuptial agreements address all the issues that would arise in a divorce, such as spousal support and the division of property. Prenuptial agreements resolve and determine if any alimony will be paid by a party, equitable distribution of assets and liabilities and can include penalty provisions if one of the parties commits adultery during the marriage. Any issues relating to children that may be born during the marriage (i.e. defining the amount of child support and time sharing) cannot be resolved by a prenuptial agreement, however.
A requirement of any contract is that the party seeking the enforcement of the prenuptial agreement has the burden of establishing a meeting of the minds, meaning there was an offer, acceptance and consideration. As a result, to have a valid pre-nup, the parties must not engage in coercion or fraud and it is essential that the parties make full, frank and honest financial disclosures regarding their assets, liabilities and income to one another.
A prenuptial agreement should be signed and executed in advance of the date of marriage. The more time in advance of the parties’ marriage date, the better. If the parties sign their prenuptial agreement in close proximity to their marriage date, then this could be a reason for one party to later challenge the validity of the prenuptial agreement. The marital and family law attorneys at Lyons, Snyder & Collin oftentimes require that the signing of the prenuptial agreement be recorded by a court reporter or videographer to safeguard that one party cannot contest the prenuptial agreement in the future.
Assuming the prenuptial agreement was properly prepared, free of coercion or duress, timely executed, and with full and frank financial disclosure, a Court should not invalidate a prenuptial agreement, no matter how one-sided it may seem.
Why do I even need a lawyer? Can’t I just find something online?
It is always a mistake to enter into a prenuptial or postnuptial agreement without the advice of an experienced family law attorney. Sean L. Collin is frequently contacted by individuals wanting to contest the terms of their prenuptial agreement. In some cases, the parties are disagreeing over tens of thousands of dollars, if not millions of dollars. Usually, the contesting party claims duress, coercion or fraud. In cases where the prenuptial agreement was not prepared by a lawyer, they claim inconsistent or vague terms. We have successfully invalidated pre-nuptial agreements that were incorrectly prepared. Contact us so this doesn’t happen to you!
Prenuptial agreements are for everyone – not only the wealthy.
A misconception is that prenuptial agreements are only for wealthy. Anyone can request a prenuptial agreement. Sean L. Collin, Nabeel Basit and Ayla Walker have prepared prenuptial agreements for well-off individuals, in addition to individuals on second marriages and individuals with limited incomes who want to define the terms of their marriage in the event they come into significant monies (i.e. inheritance, sale of business, etc.) during the marriage. More and more, younger business owners are seeking prenuptial agreements to safeguard their assets in the event of a divorce. The biggest destroyer of wealth is an expensive divorce.
For the most part, however, prenuptial agreements are prepared at the request of individuals with: (1) very high incomes (such as CEOs, CFOs, COOs or athletes); (2) professionals who own a business or practice (such as doctors, lawyers and financial advisors); (3) individuals with children from a previous marriage; and (4) individuals who have amassed great wealth prior to the marriage, often by inheritance, previous divorce or retirement account.
Would duress and/or coercion invalid a prenuptial agreement?
In Florida, although a trial court will not enforce a prenuptial agreement obtained by duress or coercion, a trial court should not invalidate a prenuptial agreement if the contesting party merely shows that he/she was emotionally upset or faced with a difficult decision about whether to sign the prenuptial prior to the parties’ marriage. This is one reason why the prenuptial agreement and accompanying financial disclosure should be timely disclosed to your spouse. The more time in advance of the marriage date, the less likely they can claim duress or coercion. If a pre-nup is prepared and executed in close proximity to the wedding date, that could be a basis to invalidate the pre nup. Again, it is extremely important to have the pre nup executed with as a much time as possible in advance of the marriage date to avoid the appearance of coercion.
Would fraud invalid a prenuptial agreement?
Fraudulent inducement is commonly plead, particularly concerning financial disclosure. Fraudulent inducement could invalidate a prenuptial agreement if (1) the representations were dishonest when made; (2) the defrauding party knew or should have known they were making false representations; (3) it was intended that the alleged representation would induce the other party to rely thereon; and (4) the defrauding party suffered injury in justifiable reliance on such alleged misrepresentation. Stated another way, the fraud must be material and justifiably relied upon to establish fraud. Claiming that one party valued a second property at $5,000,000.00 where the beach house was actually appraised at $4,750,000.00 would not be considered material to invalidate the prenuptial agreement. However, not disclosing a second property to the other party could be considered material to invalidate the prenuptial agreement.
Finally, prenuptial agreements entered into in violation of public policy are void. For example, a Court will likely reject a provision of a prenuptial agreement that waives all child support or awards sole timesharing to one parent, in the event that it is not in the best interest of the children. In Florida, a Judge will not uphold a provision of a prenuptial agreement that waives temporary attorney’s fees and alimony because temporary alimony and attorney’s fees cannot be waived.
Should the same attorney represent both parties?
Prenuptial and postnuptial agreements can be complicated. As a result, it is important for both the Husband and the Wife to have separate counsel to explain the terms of the agreement. It is a mistake to rely upon the advice and recommendation of your adversary’s lawyer. Like a contract, a party cannot come back at a later time and claim naivety or ignorance for entering into a pre-nup or post-nup without fully understanding its terms. Buyer’s remorse is not a defense to a prenuptial agreement’s or postnuptial agreement’s validity.
A prenuptial agreement or postnuptial agreement must be prepared by an experienced marital and family law attorney to avoid any issues which could lead to future litigation. Our marital and family law attorneys have equally represented Husbands and Wives. Additionally, our marital and family law attorneys have equally represented the spouse with the greater assets and the spouse with the lesser assets.
Although one attorney should not represent both parties, it is not uncommon for the party with the greater assets to pay the attorney’s fees for the party with the lower assets, so they can retain their own attorney to review the agreement.
Where to begin?
The family law attorneys at Lyons, Snyder & Collin have experience preparing and reviewing prenuptial agreements for both future Wives and future Husbands. Oftentimes the requesting party (the party with significantly higher assets) will agree to pay the attorneys’ fees for their future spouse.
Call us now for a free and confidential consultation.
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When we are not in court, Marc P. Lyons and Philip M. Snyder serve as legal commentators for CNN, FOX News, and HLN.