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Why Your Prenuptial Agreement Is Probably Irrelevant

Chantale Suttle • August 12, 2022
A couple holds hands, and they make the shape of a heart with their hands.

Florida law dictates how property is divided in a divorce...unless you have a prenuptial ("prenup") or postnuptial ("postnup") agreement in place. However, a prenup or postnup is not ironclad - not unless you strictly follow the legal rules that determine whether a prenup or postnup will be effective when you need it. 

 

The words on the paper are usually fair to the couple involved, and the words are usually fair under basic contract principles. 

 

Overall, most prenups are upheld when challenged. There is a well-established precedent of "buyer beware" in American law, and courts want to uphold contracts between parties. Don't think so? Consider the last time you wound up with an unpleasant gym contract or phone contract. Judges are inclined to uphold the contracts, and that applies to prenups.

 

Why are most prenups upheld? 

 

  1. Most lawyers use - and should use - "boilerplate" language, which refers to terminology and phrasing that most lawyers, judges and consumers have seen many times before. Such language has withstood the test of time under scrutiny. That's why the majority of prenups use mostly all the same terms, and the rest of the language is variable, depending on how an attorney tailored the contract to the circumstances.
  2. Twenty-six U.S. states have adopted the Uniform Premarital and Marital Agreements Act (UPAA). Florida adopted it in 2007; see Section 61.079 of the Florida Statutes. The UPAA gives guidance to judges for interpreting prenups and for whether they should be enforced. With so many states using this framework, you can rely on the safeguards in the statute.
  3. Even if you bought a DIY packaged prenup, it was likely written by a good attorney, who was using the conventions mentioned above. 

 

Why would your prenup be irrelevant? 


A prenup is rarely irrelevant because of the specific words on the page. It's irrelevant almost always because of the process involved in creating the prenup, which may involve one of the situations below:

 

  1. Duress. 

 

Duress is the pressure to sign because the person believes that there is no other option but to marry and thus to sign an unwanted contract. Consider these examples of duress:

  • Someone urgently immigrating (and without a visa) might not have another solution for an immigration predicament, so the person will feel forced to sign a prenup in order to proceed with the wedding and to secure their status in the country. 
  • Imagine the wedding is scheduled in six weeks, and relatives who are traveling long distances have already invested money in plane tickets. The fiancé might not like the terms of the prenup, but the idea of delaying or calling off the wedding is unthinkable and humiliating. 
  • There might be a pregnancy that needs to be legitimized. A person might not want to agree to the prenup's terms, but the person may still want to marry to ensure closeness with the child.


   2.   Incomplete or nonexistent disclosure. 
 
A prenup may be irrelevant when one or both partners have provided incomplete or nonexistent disclosure of financials, assets, liabilities, etc. Failure to disclose might include an intentional omission, but an omission also might be inadvertent, especially if the partners are rushed or dealing with other circumstances while preparing for the prenup and the wedding. 
 
On this issue, you may need a lawyer to figure out appropriate disclosure for your unique circumstances.
 
   3.   A language barrier. Disclosure cannot happen properly if one party cannot adequately comprehend the language used to identify assets, income, liabilities, etc. A language barrier may prevent a fiancé from fully understanding the terms of the contract. Additionally, translations might not accurately capture disclosure, depending on the translator's understanding of the contract. Ultimately, if the person cannot read the contract, then there is no proper consent to, or agreement with, the terms of the prenup. 
 
   4.   Too little time to consider the contract before the wedding. This situation provokes the same concerns as duress, even if neither partner is feeling forced or feeling as if there is no other option. Prenups may be irrelevant when there is simply too little time between the presentation of the prenup and the wedding ceremony to consider the potential consequences of the prenup adequately.
 
    5.   Fraud. This situation involves lying or deception of some kind. It may involve falsification of documents or lying about assets, all of which are a failure to disclose. But the fraud may involve the prenup document itself, such as presenting a copy with different terms for signature to an unsuspecting fiancé. Such tactics may be used to induce a partner's signature on the prenup by making the partner believe that the prenup does or does not include certain provisions. The latter situation is especially possible when one partner is not as legally savvy or does not have comparable language or reading comprehension.
 
    6.    Need for public assistance. If your prenup waived spousal support, but divorce has caused the ex-spouse to need public assistance, the court may require the other ex-spouse to provide financial support. The wording of Section 61.079(7)(b) provides the following guidance: "If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement [emphasis supplied], may require the other party to provide support to the extent necessary to avoid that eligibility." 
 
 How do I avoid these pitfalls? 
 
You can approach a prenup through hiring a lawyer as your own advocate and not as your partner's advocate. This approach is somewhat adversarial, though it may be the best approach for your needs.
 
A better, and likely less expensive, option is to pursue a mediated prenup, in which one of our attorneys can function as a mediator who is not hired to represent only one person's interest. Please see our post, "What is a Mediated Prenup?" 
 
If you are married and have a prenup in place, consider a review to make sure that you have protected yourself against the pitfalls that may render your prenup irrelevant. If there is in fact a problem, the remedy is easy: you can simply amend your prenup, which might be a good move regardless, as you may have acquired assets, businesses, and income that you did not possess at the time of the prenup's drafting. In fact, the UPAA provides for the amending of your prenup in Section 61.079(6): 
 
After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.
 
If you have questions or concerns related to creating, reviewing, or amending a Florida prenup, the dedicated prenuptial attorneys at Just Prenups can help.
 
Warning: All posts on this website contain general information about legal matters for broad educational purposes only. This information is not legal advice and should not be treated as such. This blog post does not create any attorney-client relationship between the reader and JustPrenups.com.

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Battle-proof Your Business Before the Divorce

By 7107328235 • March 27, 2025
A prenuptial or postnuptial agreement can save your business. Consider two dry cleaners, Ricky and Fred. Both thought they would be married to their wives until “death do they part.” Unfortunately, they both ended up divorced. Ricky walked out of divorce court personally and professionally ruined. Fred, while emotionally drained, was able to maintain and grow his successful business. Why the different outcomes? Ricky’s Story Ricky owned a dry cleaning business with Lucy, his wife of 19 years. Ricky was in charge of all aspects of the business, but Lucy did manage the company’s payroll and vendors part-time. Occasionally, she worked the front counter. For the most part, Lucy raised the children and cared for her elderly parents. When they decided to divorce, Ricky and Lucy were still civil and wanted their divorce to be amicable. Ricky and Lucy worked together, without lawyers, to craft a plan for sharing time with their teenage sons, and for sharing the family’s expenses. They also agreed to sell their house after their youngest son graduated high school. After a few months, and at the urging of a well-intentioned friend, Lucy hired a lawyer to write up the couples’ plan. Lucy’s main goal was to make sure the divorce ended fairly for her children. The lawyer, however, believed that since any small business owner could hide income, assets, or a company’s true value, then Ricky must be doing that too. Even though Lucy had a base of knowledge of the business’s finances, she trusted her lawyer and figured that he knew better. So, she agreed to his “scorched earth” strategy to protect her children. What is a “scorched earth strategy”? This is a common tactic to squeeze a business owner into a large and early settlement. The lawyer hires an accountant, and they go after every scrap of information and document pertaining to the company’s assets and liabilities, and they question it all—every argument and angle of attack is fair game. Much of the cost of providing the information and documents, and defending business decisions, must be paid by the business. Scared and desperate, Ricky lawyered up too. Unfortunately, Ricky’s lawyer couldn’t advise him on the settlement terms proposed by Lucy’s lawyer without conducting his own analysis of the company’s voluminous records. Much of the paper work involved in operating a dry cleaning business was foreign to him, and the stringent environmental regulations and reporting was overwhelming. Ricky’s lawyer had to hire his own accountant to help value the business for the divorce. Ricky and Lucy were now far from civil with one another, and the mud began to fly. Faced with dueling accountants, complicated and conflicting arguments about the business’s finances and value, and accusations against Ricky of financial wrongdoing, the family court judge appointed an independent forensic accountant to advise the court. The independent accountant saw that the business, which was the couple’s biggest asset, was crumbling because the ugly divorce was keeping Ricky from focusing on the business. The accountant was also worried about the accusations of financial wrongdoing by Ricky. So, on the independent accountant’s recommendation, the court appointed a receiver to operate and protect the dry cleaning business. Ricky and Lucy were now paying six different professionals, and trial was still months away. The receiver discovered that the company’s records did not comply with dry cleaning waste disposal regulations, and reported the non-compliance to government authorities. Ricky and Lucy blamed each other for the missing paperwork, and the sour relationship between them stalled and ultimately prevented joint efforts at an amnesty program and damage control. The business began to accrue daily statutory fines, employees were laid off, debts mounted, and the business eventually shut its doors while Ricky and Lucy continued to fight in divorce court. A year later, with no business to provide income for Ricky or Lucy, Ricky agreed to settle by paying Lucy more than half of his share of the house. Lucy accepted the offer, even though it was smaller then what she expected originally, because her share of the house was pledged to pay her lawyer’s fees. Fred’s Story Fred was married to Ethel for 22 years, and they have a daughter. Like Ricky and Lucy, Fred ran the business while Ethel was involved part-time in just certain aspects. But unlike Ricky and Lucy, when Fred bought his dry cleaning business nine years earlier, Fred and Ethel signed a postnuptial agreement to protect each other in case of divorce. The attorney-drafted agreement laid out a strict structure for evaluating and dividing the business, and for determining Fred’s true income for spousal and child support calculations. It identified and limited the financial information and documents that the business would have to disclose. It also required that the couple use a single neutral accountant (who would be paid from marital property and not by the company), to gather and evaluate that financial information and documentation. Early in the divorce, Ethel agreed that the postnuptial agreement was valid. She waived any right to ask the court to force the company to disclose more information or documents than described in the postnuptial agreement. This entitled Ethel to an immediate, fair, and higher award of support, thanks to a provision that she and Fred put in the agreement to encourage a quick resolution. Within a month, Fred and Ethel’s divorce was finalized, with minimal attorneys’ and accountant fees, and with no interference or intrusion into the dry cleaning business or operations. How could two similarly situated businesses and families leave divorce court with such different results? The first story is horrifying, but exceedingly common. Many states have onerous disclosure requirements that unnecessarily burden the time and finances of a small business. Unscrupulous divorce lawyers are trained to hone in and target a business owner’s fear of having the business’s confidential and financial information exposed to the world, to induce an early and usually unfair settlement. Fair and careful divorce lawyers will also want extensive company records, because they fear being liable for giving bad advice if they make recommendations without investigating the whole picture themselves. Either way, good lawyer or a bad one, smart judge or not, a case involving a small business can be very costly. The best way to avoid being a Ricky, is to get a prenuptial or postnuptial agreement like Fred. A good prenuptial or postnuptial agreement can render the most intrusive and damaging financial disclosures unnecessary, and can limit or attribute the related costs away from the business. In some situations, as shown above, they can save the business itself. If Ricky had a prenuptial or postnuptial agreement in place, maybe a receiver would not have been necessary, and Ricky and Lucy could have resolved the business’s regulatory problems confidentially without going out of business. Ricky and Fred were not wrong to believe in their marriages. A life-long commitment is not fanciful; it is a hopeful and beautiful goal. Most couples think they will reach that goal and that other couples will fill our country’s depressing divorce statistics. But consider this, we buy life insurance, install security systems, and wear seat belts “just in case.” They give us security even if we think that odds will always be in our favor. A careful and thorough prenuptial or postnuptial agreement can provide you, your spouse, and your business with security that all will be protected in a divorce, and that years of building a life and a business will not be burned to the ground. Chantale Suttle is the Managing Attorney and Founder of DADvocacy™ Law Firm, which is headquartered in Miami, Florida. She has been in the exclusive practice of family law for over 21 years and has served countless small business owners in divorce court. Drafting prenuptial and postnuptial agreements for small business owners is her favorite work.
A couple sits on a bench as one person reaches out to the other who is turned away.

"Would You Sign This Prenup?" Upload the Draft You Received for a Review

By 7107328235 • January 15, 2025
Your fiancé or fiancée presented you with a prenuptial draft: will you sign it before you hear wedding bells? Now you need a review by an attorney to ensure that your assets and your future security are protected: welcome to JustPrenups' prenup review! JustPrenups now offers UPLOADR: quickly share your prenup draft easily from any device in multiples format through UPLOADR on our site - no scanning, no email. Once we receive your prenup draft, an attorney examines the prenup that you received and then meets with you for a free consultation on Zoom. We hold your document and its data in confidence, even if you don't retain us, per our ethical requirements.
A couple walks along a Florida beach by the water in sunshine.

The More You Know: Florida Prenup Edition

By 7107328235 • December 26, 2024
Florida is a quirky place full of contrasts, and so is its family law. In particular, recent updates to Florida family law have changed the rules for alimony in Florida prenups. If your prenuptial agreement doesn't follow these changed rules, your prenup may not be valid and enforceable; as a result, you may be facing high financial stakes in divorce litigation that may put your assets at risk.
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