A prenuptial agreement can actually strengthen a marriage, making sure both partners are “on the same page” regarding how finances and other issues will be dealt with during the marriage. Of course, one reason people make a prenuptial agreement is to simplify separating their lives in the event that the marriage doesn't work out. In that situation, one spouse may find out to their dismay that the prenuptial agreement is not enforceable, or that the other spouse is no longer willing to abide by it. Here's what you need to know about enforcing a prenuptial agreement in Florida.

What Makes a Prenup Valid?

In Florida, a prenuptial agreement, also called a prenup or a premarital agreement, requires three essential things: it must be in writing; it must be signed by both parties; and the parties must actually have a valid marriage for it to take effect. Beyond those basics, however, there are other requirements for a prenup to be considered valid and enforceable in a divorce. 

First and foremost, the subject matter of the agreement must be acceptable under Florida law. The only subjects that can be addressed in a prenup are:

• The couples rights and responsibilities regarding their property, including the right to use or control that property; 
• How the parties' property will be disposed of if either of them dies or upon separation, divorce, or some other event.
• Spousal support, including establishing, modifying, waiving, or eliminating alimony;
• Estate planning in order to carry out the terms of the prenuptial agreement; 
• Life insurance policies; including ownership and the naming of beneficiaries.;
• Which state's laws will govern interpretation and enforcement of the agreement;
• Other personal rights and responsibilities, as long as they do not violate a criminal law or public policy. 

An engaged couple is free to agree on many things within those constraints. But just because a prenuptial agreement is valid on its face does not mean it will be enforceable. The circumstances under which an agreement was made are very important, even if the document itself looks acceptable. 

When a Prenuptial Agreement Will Not Be Enforced

As a general rule, Florida courts will enforce a prenuptial agreement unless there is a good reason not to. One reason, of course, would be if the agreement was not valid according to the requirements above. But a prenup may also be unenforceable under the following circumstances: 

• Fraud: Deliberately misrepresenting one's assets or debts, terms of the agreement, or circumstances to the other party to get them to sign a prenup may result in the agreement being set aside for fraud.
• Failure to Make Fair and Reasonable Disclosure: A prenuptial agreement may be set aside short of deliberate fraud if one party fails to make fair and reasonable disclosure or their assets and debts. An example would be failing to disclose the existence of significant student loan debt, or ownership of a business. 

• Lack of voluntariness: Each party must sign the agreement of their own free will. If one party has to threaten or bribe the other party to sign the agreement, it may be able to be set aside. 

• Duress: If one person signs the agreement because they believe that they, or someone else, will be harmed if they don't, they are signing under duress. Duress, like coercion, means the agreement is not voluntary. The agreement can be set aside if duress is proven.

• Coercion: This means that one party was pressured to sign the agreement. Perhaps the most common coercion scenario involves one party telling the other they will call off the wedding unless the agreement is signed. 

• Overreaching: Overreaching may involve taking advantage of someone's circumstances, or acting in a way that would shock the conscience of a reasonable person. For instance, if a woman had just learned she was pregnant, and her fiance handed her a prenup to sign, implying that he might break their engagement if she didn't sign, that could constitute overreach. 

• Terms of the Agreement are Unreasonable: Unlike the previous situations, which center on the circumstances surrounding the signing of the prenup, this one focuses on the contents. If the terms of the agreement are clearly unreasonable, it may be set aside. If a multimillionaire is marrying a person without assets or employability, a provision in the prenup capping spousal support at $100 per month would be unreasonable. 

The best way to avoid having a prenup declared unenforceable is to work with an experienced attorney. An experienced attorney who knows the law in this area will draft an agreement that complies with Florida family law and will ensure that the agreement is not signed under circumstances that call it into question (for example, the week before the wedding). If you are presented with a prenuptial agreement by your fiance, you should have a knowledgeable attorney review it to ensure it is fair and that you fully understand what you are agreeing to. 

If you need to have a prenuptial agreement drafted or reviewed, or are concerned about the enforceability of an existing agreement, we invite you to get in touch with us at The Florida Divorce Law Group, so we can talk about your specific situation and put our experience and knowledge at your service.