Copyright, William D. Slicker, 2012
Sometimes parties seek to set out what their rights will be if they get divorced or if one of them dies, in a document that they both sign before they get married. Sometimes when the time for divorce comes, one of the parties attempts to have the premarital or antenuptial agreement set aside due to unfairness or a failure to make full disclosure.
In deciding these cases, the Florida courts have looked at:
(1) Whether the agreement makes a fair and reasonable provision for the spouse, or
(2) If there was a full and frank disclosure of a party’s financial worth before the signing, or
(3) Whether there was a general and approximate knowledge of the spouses financial worth.
In deciding these issues, the courts look at whether both parties had their own independent counsel or at least the opportunity to obtain independent counsel which they rejected. In determining a fair and reasonable provision for a spouse, there is necessarily a subjective judgment. On the other hand, full financial disclosure is more objective. Therefore, full financial disclosure is recommended.
Duress is sometimes raised as a reason to get out of a premarital or antenuptial agreement. This is often raised when someone is not given sufficient time to review the agreement, such as if they are handed the agreement as they enter the church for a wedding ceremony. Therefore, it is important to make sure the agreement is entered into sufficiently in advance of the marriage.
The courts have held that the state is a third party to a premarital or antenuptial agreement and has stricken provisions that attempt to defeat the rights of third parties. Generally, this has been used to strike provisions that attempt to do away with a spouse’s duty to provide child support to a minor child of the parties or attempts to set what the parties’ time-sharing arrangements would be with minor children of the marriage.
If you are thinking of entering into a marriage and would like to enter into a premarital or antenuptial agreement or even if you are thinking of entering into a marriage and are wondering about your rights will be upon a dissolution of that marriage, please contact William D. Slicker, P.A. at (727) 322-2795.