11 Pitfalls of Prenups in Florida

Prior to getting married, all couples should consider a premarital agreement (commonly known as a “prenup”) regardless of who they are, how long the couple has known each other, or their financial status. This process can strengthen a couple by tackling a taboo topic centered around one of the leading causes for divorce: money. Premarital agreements also serve as a crucial protection and/or preservation mechanism. However, not all premarital agreements are drafted equally.

While a premarital agreement is, at its core, a contract, there are unique factors that apply when drafting a premarital agreement.

This article seeks to discuss eleven pitfalls that many drafting attorneys may face when contemplating a premarital agreement.

1. The “Race to the Altar” 

One of the necessary circumstances of a premarital agreement is that it is executed before the couple is legally married.  See § 61.079, Florida Statutes. This leads to a “baked-in” deadline for when a premarital agreement needs to be executed by—the wedding date.  Because of the comprehensive financial disclosure** necessary to draft a reliable premarital agreement, as well as the various future considerations that should be contemplated, the drafting attorney should advise their client from the start that while time is of the essence, time is also needed to draft a premarital agreement that has a better chance of surviving a challenge decades after its initial execution.

**See No. Six (6) for more details regarding the necessity and/or merits of a financial disclosure.

2. It Matters When the Prenup is Signed

The best premarital agreement is one that seeks to avoid as many pitfalls for litigation as possible, and as stated previously, the timing here matters.  Attorneys may want to bear in mind the optics to a court of a premarital agreement executed on the eve of a wedding day (or in the days leading up to the wedding day).  When the premarital agreement is signed is one such pitfall that may be used against its validation.

For instance, the Second District Court of Appeals in Hjortaas v. McCabe, 656 So. 2d 168, 170 (Fla. 2d DCA 1995) concluded that the timing of the signing of the premarital agreement indicated that the wife's signature was the product of duress because the agreement was presented to the wife a mere two days before the wedding. Because this gave the wife just one day to make an independent evaluation of the contract, or to cancel her wedding, the Court determined that the premarital agreement was invalid. Notably, the Court’s focuses here was on the timing of when the premarital agreement was signed, not the contents of the agreement itself.

3. The Effect of a Prenup on Homestead Property

Homestead property should be expressly addressed in the terms of a premarital agreement.  Florida has distinct laws governing homestead property.  However, a premarital agreement can adjust how homestead property is treated by the court.

For instance, the Florida Supreme Court has stated that a waiver of all rights to homestead through a premarital agreement is valid under Florida law. See § 732.702(1), Florida Statutes; City Nat. Bank of Florida v. Tescher, 578 So. 2d 701, 703 (Fla. 1991). A spouse's premarital waiver of "all rights" in the homestead would be the legal equivalent of her predeceasing the other spouse. Tescher, 578 So. 2d at 701. This position is also expressed in Hartwell v. Blasingame, 564 So. 2d 543, 545 (Fla. 2d DCA 1990), where the Court determined that there was no reason for the state to prohibit the surviving spouse from validly waiving her homestead rights at the inception of the marital relationship which invoked those rights.

4. The Effect of a Prenup on Future Wills and Trusts

During the initial drafting of a premarital agreement, a drafting attorney will want to contemplate any present or future wills and trusts in the terms of the premarital agreement itself to protect a spouse’s rights down the road.  While ideally the couple will occasionally reevaluate the terms of their premarital agreement as they grow their assets, the drafting attorney cannot rely on later amendments.  By failing to contemplate how a future will and/or trust may affect the terms in the premarital agreement, the drafting attorney risks the non-enforcement of the prenup if it is later challenged.

There are also certain provisions that can be added to a premarital agreement which consider, and in some cases limit, a spouse’s actions regarding future wills and trusts. For instance, in Smith v. Smith, 232 So.3d 509 (Fla. 1st DCA 2017) the First District Court of Appeals determined that because a couple’s premarital agreement expressly provided that the parties would "refrain from any action or proceeding to void or nullify to any extent ... the terms of any last will and testament or trust or testamentary substitute,” the premarital agreement clearly contemplated all wills and testamentary trusts regardless of whether they were executed before or after the premarital agreement. Accordingly, the premarital agreement prevented the wife from later nullifying the terms of her husband's last will by seeking the removal of the co-personal representatives named in the will.

5. The Elusive Ironclad Prenup

While contractual choice-of-law provisions will be enforced in Florida so long as the chosen forum’s law does not contravene Florida’s public policy (See Lamb v. Lamb, 154 So.3d 465, 467 (Fla. 5th DCA 2015)), there is no “magic language” that can be included in a premarital agreement to guarantee its full enforcement in every state or in other countries.  This means that a drafting attorney cannot guarantee the full enforcement of any premarital agreement.

While it may be tempting for advertising purposes to boast the ability to draft an “ironclad” prenup, drafting attorneys should repeatedly caution their clients about the possibility that a premarital agreement will end up in court, and what the court’s discretion may be when this occurs. This means that couples contemplating a premarital agreement should be mindful that no matter which law firm they go with or how much money they pay, an ironclad prenup is not and cannot be guaranteed!

6. Accepting a Financial Disclosure Waiver

Florida law maintains that for a premarital agreement to be valid, each party must provide a full disclosure of their assets, debts, and income (e.g., bank accounts, investments, real estate, etc.).  However, for Florida prenups signed after 2007, the Uniform Premarital Agreement Act permits a waiver of all disclosure of finances in connection with a prenup. See § 61.079(7)(b), Florida Statutes. However, just because something is permissible does not mean it is preferred—forgoing a comprehensive financial disclosure during the drafting phase of a prenup puts the prenup itself at risk of being unenforceable.

For that reason, attorneys may be wary of having their clients execute and/or sign such a waiver. Couples should be prepared for the attorney(s) drafting the premarital agreement to push back on such a waiver, and to expect full transparency, including a swap of documentation detailing each individual’s assets and liabilities. While this upfront “homework” of compiling documentation might be tedious, it is indicative of an attorney following best practice to help ensure the validity of a premarital agreement if challenged.

7. Handling a Challenge to a Temporary Support Provision

A premarital agreement can appropriately address alimony, as well as temporary support prior to the entry of a Final Order of Dissolution. See Fonderson v. Lairap, 98 So. 3d 715, 717 (Fla. 2d DCA 2012) (holding that temporary support awards are “within the trial court's broad discretion” and will be affirmed if the record contains “competent, substantial evidence to support the trial court's ruling”); see also Trainor v. Trainor, 199 So. 3d 523, 524 (Fla. 4th DCA 2016).

While a well-drafted temporary support provision should be respected by a court as any other contract would (See Hahamovitch v. Hahamovitch, 174 So.3d 983, 986 (Fla. 2015); see also Smith v. Smith, 232 So.3d 509 (Fla. 1st DCA 2017)), in the event of an evidentiary hearing addressing a temporary support provision, it is imperative that the trial court not only consider the premarital agreement, but also explicitly find that the party seeking support has: 1) a need for the temporary support, and 2) that the opposing party has the ability to pay such support.  The attorney arguing for the temporary support provision should structure their arguments accordingly and request these specific findings from the trial court for appellate purposes.

8. The Popularity of the “Infidelity Clause” 

Despite being a no-fault divorce state, Florida does allow certain lifestyle clauses such as the “infidelity clause” (i.e., the “anti-cheating” or “bad boy/girl clause”).  However, the addition of this sort of clause is ripe for litigation.

On the one hand, this sort of clause is understandably appealing to couples.  No one wants to be cheated on, and this is a way to legally enforce financial consequences for the sordid act (and potentially even deterring cheating).  Additionally, as a no-fault divorce state, cheating is not generally a consideration for a Florida court when determining the terms of a divorce.  By adding an infidelity clause in a prenup though, a certain measure of fault is now being considered for the division of assets.

On the other hand, if cheating does lead to the filing for a dissolution of marriage, most parties with representation would be quick to challenge a premarital agreement based on the inclusion of this provision, thereby dragging the dissolution into costly litigation and putting the entire premarital agreement at-issue.  These clauses invite litigation on several grounds such as: what is considered cheating; “justification” for a perceived act of infidelity; and fairness as to the consequences for an act of infidelity.  Infidelity clauses are also impermissible in other states, creating an added risk for a premarital agreement’s enforcement if a dissolution is filed outside of Florida.

A drafting attorney may have different perspectives on the inclusion of an infidelity clause, as each case is also fact specific.  If a premarital agreement with this clause may give a couple peace of mind before entering into marriage, it is a valid consideration.  However, a drafting attorney should keep the pitfalls associated with this clause in mind, and counsel their clients accordingly.

9. The Penchant to Neglect a Prenup Post-Marriage

So often the discourse around premarital agreements focuses on the original drafting of the terms.  However, it is not enough to secure a good premarital agreement and then throw it in a drawer until dissolution proceedings are initiated.  Even the most well-drafted premarital agreements will benefit from amendments down the line as the couple’s circumstances change.  Therefore, the drafting attorney should be advising their client of the need for routine review, and amendments as necessary, to ensure the enforcement of the premarital agreement decades down the line. Couples should also keep in mind that a premarital agreement may need to be amended post-marriage as they gain assets and have children.

10. Advice Left Unfollowed

Drafting a comprehensive premarital agreement that can withstand the test of time and changing circumstances may turn into an expensive endeavor for couples.  For instance, “best practice” dictates that when an out of state or out of country property is included in a premarital agreement, an attorney from each state and/or country should be involved (or at least consulted) in the drafting process.  The involvement of several attorneys can become costly, quickly.  As such, it is not uncommon for couples to decline certain “best practices” avenues.  While the drafting attorney will naturally still do their due diligence in drafting the premarital agreement, the drafting attorney should secure a written waiver from their clients whenever advice is provided, but ultimately unfollowed.  This method protects the drafting attorney if a court later opts against enforcing a particular provision in a premarital agreement.

11. Penalties for Challenging a Prenup

While most courts will hesitate to enforce a provision in a premarital agreement that seeks to “punish” a party who dares to challenge said agreement, there are still potential penalties for challenging a premarital agreement.  For instance, even in circumstances where attorneys’ fees are contemplated in the premarital agreement, the court has the discretion to deny a request for attorneys’ fees to the party bringing suit in certain circumstances.  Accordingly, attorneys may benefit from advising clients against challenging a premarital agreement depending on the merits of the case.

12. Be Specific!

Surprise! Here is a bonus 12th consideration, which may avoid a slew of potential pitfalls: be as specific as possible when drafting a premarital agreement. Attorneys are not typically known for their brevity, so don’t start now! A drafting attorney should aim to spell out every single scenario, and identify specific properties, assets, and/or liabilities when possible. While this may sound tedious, a drafting attorney should assume that any ambiguities will be challenged. Further, a court may very well fill in any perceived gap itself, which could cut against a client’s wishes.

While broad, catch-all language has its place, broad language can be interpreted, well…broadly. For instance, in Stern v. Stern, 636 So.2d 735 (Fla. 4th DCA 1993) the Fourth District Court of Appeals stated the following: “With regard to the premarital agreement, paragraph 6 provides that "anything purchased by both parties or assets accumulated from this date forward shall be divided equally by both parties." We interpret this provision broadly to mean the assets acquired during the marriage generally, and not each particular asset, are to be divided equally.” The whole point of a premarital agreement is to prevent the need for court intervention and/or interpretation, so beware a reliance on broad language!