Historically, postnuptial agreements have been used by parties who previously went through a divorce; and now want to protect their assets just in case their upcoming marriage also ends in a divorce. Today, however, New Horizons Law, P.A., Michael J. Costantino, Esq. is being retained by a younger generation of both men and women who are in the planning stages of marriage and who want to explore the benefits of a prenuptial agreement. In addition, New Horizons Law, P.A., Michael J. Costantino, Esq. also is seeing a number of recently married people who want our office to prepare a postnuptial agreement for them.
In Florida, a prenuptial agreement is governed by F.S. § 61.079 and is officially known as a “premarital agreement”. At New Horizons Law, P.A., Michael J. Costantino, Esq., we take an enormous amount of care in preparing your premarital agreement to make sure that the agreement protects all property that you individually own remains as your property.
The premarital agreement that New Horizons Law, P.A., Michael J. Costantino, Esq. prepares for you will provide that upon a divorce neither of you will have any claim to alimony or assets belonging to other. It also will prohibit the other spouse from making claims property against the deceased spouse’s estate for property that is protected by the premarital agreement.
However, even though the premarital agreement contains language which limits the rights of each spouse, the agreement still allows each spouse the legal right to give the other spouse to gift assets during the time that the parties are married as well as to bequest assets and other benefits in their will.
New Horizons Law, P.A., Michael J. Costantino, Esq. recognizes that full and complete financial disclosure is of the utmost importance I n order insure the validity of your premarital agreement. The financial disclosure must be extremely accurate as to what assets an individual owns and the assets value as well as the amount of debts that the individual owes. Otherwise, if the premarital or postnuptial agreement is challenged in court during a divorce hearing, the judge will most likely declare the agreement as void and unenforceable.
In addition to a lack of full financial disclosure, other challenges to premarital or postnuptial agreements based on Florida contract defenses that include fraud, deceit, duress, coercion, misrepresentation, or overreaching in the execution of the prenuptial agreement.
The timing of a premarital agreement is also important. In Hjortaas v. McCabe, 656 So.2d 168 (Fla. 2d DCA 1995) the wife was asked to sign a prenuptial agreement two days before the wedding which left her “only one day to seek counsel from her own attorney, to make an independent evaluation of the contract, or to cancel her wedding.” The Hjortaas court found the premarital agreement to be void and unenforceable. In Waton v. Waton, 887 So. 2d 419, 422 (Fla. Dist. Ct. App. 2004), the “Wife received the agreement two weeks before the wedding; Husband had told Wife about the proposed terms long before the agreement was prepared; he made a list of his assets and showed them to Wife before contacting a lawyer to draft the antenuptial agreement.” The Waton court found this agreement to be valid and enforceable.
While it is a very prudent to have a prenuptial agreement drafted in advance of marriage, it is important to understand that these agreements cannot deal with every possible issue, but only those issues which you disclose to New Horizons Law, P.A., Michael J. Costantino, Esq. during a confidential consultation.