Florida Family Law: Prenuptial Agreements

General Case Law:

O’Shea v. O’Shea, 221 So. 223 (Fla. 4th DCA 1969).  The marriage itself is sufficient consideration for a premarital agreement.

Mulhern v. Mulhern, 446 So. 2d 1124 (Fla. 4th DCA 1984).  Prenuptial Agreements do not differ from other agreements and should be construed and interpreted in the same manner as any other contract.

 Barakat v. Broward County House. Authority, 771 So. 2d 1193 (Fla. 4th DCA 2000).  It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.

Herpich v. Estate of Herpich, 994 So. 2d 1195 (Fla. 5th DCA 2008).   Prenuptial agreement is subject to interpretation like any other contract.

 Ledea-Genaro v. Genaro, 963 So. 2d 749 (Fla. 4th DCA 2007).  Prenuptial Agreements shall be construed and interpreted in the same manner as other contracts with the court resorting to rules of construction and extrinsic evidence only where the contract language is ambiguous.

Chipman v. Chipman, 975 So. 2d 603 (Fla. 4th DCA 2008).  The trial court’s interpretation of a postnuptial agreement as a matter of law is subject to a de novo standard of review.

 Turchin v. Estate of Turchin, 16 So. 3d 1042 (Fla. 4th DCA 2009). Primary purpose of a prenuptial agreement is to modify or minimize the general discretion of a judge in doing equity between the parties. The agreement itself is intended to define the mutual equities, and the trial judge is not free to ignore its provisions or to render them ineffective.

 Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011).  The standard for review of any marital settlement agreement is de novo, because interpretation of a marital agreement is as a matter of law.

Weymouth v. Weymouth, 37 Fla.L.Weekly D850 (Fla. 4th DCA 2012).  Trial Court affirmed for triggering penalty clause in prenuptial agreement based upon circumstantial evidence.  Because adultery usually takes place in secret or seclusion, proof in most cases is by circumstantial evidence, through showing desire by mutual affection, coupled with circumstances that would lead to a reasonable person would conclude adultery occurred.

Challenges to Validity:

*** Casto v. Casto, 508 So. 2d 330 (Fla. 1987).

There are two methods to challenge the validity of prenuptial and postnuptial agreements:

Direct Method: An agreement may be set aside or modified upon establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

Indirect Method: The challenging spouse must establish that the Agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Once unfairness is established, a presumption arises that there was either concealment or a presumed lack of knowledge of the defending spouse’s finances at the time the agreement was reached. The burden then shifts to the defending spouse. The presumption can be rebutted upon a showing that:

  1.  the defending spouse made full, frank financial disclosure; or
  2. the challenging spouse had a general knowledge of the character and extent of the other party’s assets and income.

The test in this regard is 1) the adequacy of the challenging spouse’s knowledge at the time of the agreement; and 2) whether the challenging spouse was prejudiced by the lack of information.

Grounds that are NOT sufficient to overturn an agreement:

  1. A bad bargain, by itself, is not sufficient grounds to set an agreement aside;
  2. A bad fiscal bargain that appears unreasonable can still be knowledgably entered into for reasons other than insufficient knowledge of assets and income; if an agreement that is unreasonable is nonetheless freely entered into, it is still enforceable; and
  3. Lack of competent assistance of counsel is no basis to vacate an agreement.

Casey v. Cohen, 740 So. 2d 59 (Fla. 4th DCA 1999).  Where a party challenges that an agreement should be set aside due to fraud or misrepresentation, that party must demonstrate that the misrepresentation or concealed fact is material to the transaction.

Francavilla v. Francavilla, 969 So. 2d 522 (Fla. 4th DCA 2007), Establishes factors necessary to establish duress. It held that in order to set aside a prenuptial agreement based on duress:

1.         The agreement sought to be set aside had to be effected involuntarily and not as an exercise of free choice or will; and

2.         That this condition of mind was caused by some improper or coercive conduct of the other spouse. A spouse’s ultimatum that the marriage would not occur without a prenuptial agreement being signed does not constitute duress, because there is nothing improper about taking such a position.   Being seven months pregnant on the day of the wedding, the time the agreement was signed does not constitute duress.

Tanner v. Tanner, 975 So. 2d 1190 (Fla. 1st DCA 2008).  No overreaching found.  Facts supported nothing other than the Wife’s buyer’s remorse.

Waton v. Waton, 887 So. 2d 419 (Fla. 4th DCA 2004), Disclosure of ownership in insurance company with no value listed sufficient to give the Wife a general knowledge of the Husband’s assets, particularly when the Wife never sought clarification or requested any additional information.

Gordon v. Gordon, 25 So. 3d 615 (Fla. 4th DCA 2009).  Agreement upheld when Husband did not disclose airline pension.  The Husband had disclosed substantial assets, and the undisclosed pension plan constituted only a small fraction of his net worth.

 Uniform Premarital Agreement Act:

§61.079, Florida Statues:

1.   Requires a premarital agreement be in writing and signed by both parties.

2.   Allows the parties to address all substantive rights in the agreement.

3.   Provides that after marriage, a premarital agreement may only be amended, revoked or abandoned by a written agreement signed by both parties.

4.   Identifies the basis under which a premarital agreement is not enforceable:

The party did not execute the agreement voluntarily;

a)      The agreement was the product of fraud, duress, coercion, or overreaching;

b)      The agreement was unconscionable when it was executed and before execution of the agreement the complaining party:

(i)                 was not provided a fair and reasonable disclosure of the property or financial obligations of the other party,

(ii)               did not voluntarily and expressly waive in writing any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii)             did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.

Unenforceable Agreements:

McNamara v. McNamara, 40 So. 3d 78 (Fla. 5th DCA 2010). A contract is not void, as against public policy, unless it is injurious to the interest of the public, or contravenes some established interest in society

 Hoffman v. Boyd, 698 So. 2d 346 (Fla. 4th DCA 1997).  A married man’s written agreement to support a woman indefinitely if he did not marry her within a specified period of time was void and unenforceable based upon public policy and Florida Statutes.

Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996). Casto, however, is not dispositive on child support, custody, and visitation, and a trial court may still set an agreement aside in regard to those issues if the agreement is not in the best interest of the children.

§61.079(4)(b), Florida Statutes. The right of a child to support may not be adversely affected by a premarital agreement.

§741.212, Florida Statutes.  Marriages between persons of the same sex states that  marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state

 Temporary Support:

 Aguilar v. Montero, 992 So. 2d 872 (Fla. 3d DCA 2008).  Notwithstanding language in the prenuptial agreement to the contrary, the Wife was entitled to temporary support.

Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972).  It is against the public policy to enforce any provisions waiving temporary support.

Lord v. Lord, 993 So. 2d 562, (Fla. 4th DCA 2008).  A provision in a premarital agreement that waives each party’s claim for attorney’s fees and costs cannot be applied to preclude an award of temporary attorney’s fees.

Higginbotham v. Higginbotham, 52 So. 3d 806 (Fla. 3d DCA 2011).  Wife was not limited to $5,000 cap on attorney’s fees as set forth in the parties’ prenuptial agreement, however, temporary fee award of $305,640.00 was excessive.

Attorneys’ Fees:

 Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005).  Provisions in prenuptial agreements that award attorney’s fees to the prevailing party in any action to enforce the agreement are enforceable.


Worley v. Worley, 855 So. 2d 632 (Fla. 2d DCA 2003).  Agreement that provided in part “any property, either real or personal, acquired by either prospective spouse, before or after their marriage, shall be the separate property of the party owning or obtaining the property and the other party shall make no claim…” The court found that the agreement did not operate to waive the active appreciation.

Witowski v. Witowski, 758 So. 2d 1181 (Fla. 2d DCA 2000).  Husband had a vested interest in an United States Postal Service Retirement Fund, which he had fully disclosed. The prenuptial agreement provided that the Husband would retain all right, title and interest in and possession of whatever assets listed above which he may still own at the time of such dissolution of marriage. The court found that without a specific provision waiving the Husband’s salary, which in turn funded his retirement fund, the appreciation in the Husband’s retirement fund was marital subject to division.

Irwin v. Irwin, 857 So. 2d 247 (Fla. 2d DCA 2003).  The release of marital rights affected any property owned by Husband at any time, whether such property is acquired or held prior to or during the marriage, or whether held in his name alone or in both of their names, jointly or as tenants in common.  Agreement did not specifically waive Husband’s active appreciation.

Valdes v. Valdes, 894 So. 2d 264 (Fla. 3d DCA 2004).  Agreement was silent as to the enhanced value of non-marital properties and did not prevent Wife from seeking equitable distribution of the enhanced value of non-marital properties.

Doig v. Doig, 787 So. 2d 100 (Fla. 2d DCA 2001).  Agreement which stated “neither party shall make any claim or acquire any interest in the other party’s separate property if it increases in value during the marriage” only protects passive appreciation.  Appreciation resulting from marital labor was not protected.

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