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Prenuptial Agreement

prenupA Prenuptial Agreement is a contract (a written agreement) between two people who are planning to marry. Agreements like this are also frequently referred to as ‘premarital agreements’ or ‘antenuptial agreements.’ No matter what it is called, it is an agreement entered prior to the marriage. Usually, these agreements apply to economic issues that can arise during a dissolution of marriage proceeding, such as dividing property (equitable distribution) or paying spousal support (alimony). Although some might call this ‘predicting failure’ or suggest that such an agreement is pessimistic, in fact it provides some sense of certainty in an otherwise uncertain world.

At its most basic, such an agreement is simply a contract between the prospective couple. Case law in Florida holds that the agreement must be in writing to be valid, and also the couple must end up married (the contract is, by definition, contingent on the marriage taking place). Further, it must either include provisions that are substantively fair for the party attempting to challenge the agreement, or the other party must have made full financial disclosure at the time the agreement is executed.

Equally important, it must be voluntarily. If a party is subjected to duress or coercion, or if a party does not fully understand the terms, it could render the agreement void. A court will consider a lack of independent counsel, the sophistication of parties in terms of their relative business and economic savvy, any time pressures or constraints imposed, and the parties’ knowledge of rights being waived (such as court-ordered remedies) when determining if an agreement was truly voluntary.


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