Experienced, Aggressive Coral Gables Prenup Lawyers Ready to Fight For You
In the Coral Gables area of Miami, Ayo and Iken PLC has an experienced team of lawyers ready to help you draft a prenup, defend your prenup, or work to defeat a previously drafted prenup. Our team understands that clients do not retain us to come in second place. By retaining us you gain access to one of the largest family law firms in the state of Florida. We will put our many combined years of experience to work for you immediately.
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What Not to Put Into a Pre-Nup
Florida Statute 61.079 is Florida’s law of prenuptial agreements, actually called “premarital agreements” in the law, and often called “antenuptial agreements” in court. It covers the eight things you may put into a pre-nuptial agreement in this state. Briefly put, the spouses may contract with respect to:
- Splitting up assets upon separation, divorce, or death,
- Wills and Trusts,
- Life Insurance,
- Choice of law governing the agreement, and
- “Any other matter, including their personal rights and obligations, not in violation of either public policy of this state or a law imposing a criminal penalty.”
Let’s review this eighth one. It means that the spouses can put anything they want into the prenuptial agreement, including personal matters, as long as the provisions don’t violate the “public policy of this state” or they aren’t criminal acts. Most people know a crime when they hear it. You can’t put into your prenuptial agreement that your wife has to help you rob banks or that she has to engage in insider trading as part of her marriage responsibilities. However, the concept of “public policy” is a little more slippery of a concept. Essentially, contracts are said to be against public policy when they are so disgusting, unfair, odious, or improper that courts refuse to enforce them.
How Low Can You Go?
In the case of Baker v. Baker, 622 So.2d 541 (Fla. App. 5 Dist. 1993), Ted and Alyce met each other in a Pennsylvania country club. They were both in their 60s and had been married previously. Ted owned a construction business. Alyce received $55,000 a year as alimony from her previous marriage. Before Ted and Alyce married, they agreed to sign a prenuptial agreement. Each of them chose their own attorneys. Ted’s attorney drafted the agreement but Alyce’s attorney made changes to it.
By all accounts, Ted didn’t pressure Alyce at all. He didn’t tell her that she had to sign the agreement in order to marry him. He fully disclosed his financial holdings before they drafted the agreement. Nonetheless, Alyce agreed to waive her rights to any alimony or any of Ted’s property upon divorce. If they got divorced, she would get nothing according to this agreement. However, if she outlived him, she would get the house for her lifetime.
They were married for over nine years and then began divorce proceedings in Florida. Alyce had no employment history. She’d given up her $55,000 a year alimony when she married Ted. Now that she and Ted were divorcing, Alyce would be destitute, and likely a ward of the state. She argued before the court that this was so unfair, or in legal terms, “unconscionable” and “overreaching,” that it was against public policy. The first court agreed with her, but the appellate court disagreed.
The appellate court pointed out that Alyce had not been deceived, nor was she pressured in any way, and she knew fully well what she was giving up by signing the prenuptial agreement. The court said that in Florida, “antenuptial agreements are valid when executed by the parties with the benefit of full and fair financial disclosure and in the absence of fraud, misrepresentation, or duress.” It also said that, despite that the agreement was unfair and inequitable, it’s basically fine under Florida law to leave an ex-spouse destitute as long as they agreed to it freely and voluntarily.
What Courts Usually Won’t Enforce
There are hardly any cases in Florida’s case law where a court found a prenuptial agreement to be against public policy. Nonetheless, Florida’s prenuptial law is the same as 26 other states and the District of Columbia. So we can look to cases in other states and get an idea of the kinds of provisions that courts in general are hesitant to enforce.
Chores and Responsibilities
Courts generally don’t get involved in the minutiae of chores like who must clean the bathroom and who must walk the dogs. Courts also generally don’t enforce provisions about a parent (or step-parent’s) responsibilities towards the children.
Usually, courts don’t enforce agreements about living arrangements.
In Mengal v. Mengal, 103 N.Y.S.2d 992, 993 (N.Y. dom. Rel. Ct. 1951), the husband and wife verbally agreed that the wife’s two children from a previous marriage would not live in the house with them. The Court ruled that it was unenforceable because it “threatens the relationship between parent and children and hence would controvert public policy.”
In Koch v. Koch, 232 A.2d 157, 158 (N.J. Super. Ct. 1967), a husband and wife had verbally agreed that the husband’s mother could move in with them after marriage. By all accounts, the marriage was perfect until the mother moved in at which point the home became unbearable to the wife, and she moved out with the children, and sued for child support. The husband defended against the suit saying that the wife’s departure was unjustified and therefore under the law in 1960s New Jersey, she wasn’t deserving of child support. The husband said that he wouldn’t have married her if not for the agreement and that she was welcome to return home if she abided by the agreement. The wife won. The court said that it was public policy to “preserve the marriage and eliminate contentious elements that do violence to it” and therefore the court wouldn’t enforce the agreement.
Courts generally shy away from enforcing provisions about sexual relations. In Favrot v. Favrot, 332 So. 2d 873,875 (La. Ct. App. 1976), the parties agreed to limit sexual encounters to once per week, at the husband’s insistence. (Really?) Later, they divorced (Are you surprised?), and the wife sought alimony. The husband argued that she wasn’t deserving of alimony because she had violated the prenuptial agreement by attempting to have sexual relations more than once per week. The court wouldn’t hear of it. They said you can’t contract away the marital obligation to fulfill the reasonable and normal sex desires of each other.
The Child’s Religion
It’s actually unconstitutional to force a person to raise their child under a particular religion. One of the leading cases is Zummo v. Zummo, a case in which the divorced mother raised the children Jewish, but the divorced father felt that the children would benefit from the occasional Roman Catholic service. He called it “bi-cultural,” but she said it would disorient and confuse them. The Court ruled that courts cannot force a father to keep his children away from the practice of his faith unless there was evidence of a “substantial threat” or “physical or mental harm to the child.” To do so would violate his First Amendment right to the free exercise of religion.