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When A Fat Wallet Creates Trouble In Paradise

premarital

Most experts, and most married couples, agree that financial stress is a significant source of marital stress. Rather surprisingly, however, these disagreements most often occur among rather well-heeled couples. Typically, there is a personality conflict between spending and saving, one partner uses money in a power play, or there are disagreements as to money and children. If at least one spouse is on his or her second marriage, as is often the case, these issues tend to be magnified.

A marital agreement can address all these issues and allow couples to make financial decisions in a non-emotional environment. Marital agreements can be made at any time, and as a matter of fact, it is a good idea to update an existing property agreement at least as frequently as you update your will. So, these agreements help put a marriage on more stable footing where there is less potential for conflict.

Establishing Premarital Agreements

It was not all that long ago that many Florida courts routinely held that marital property agreements were against public policy and therefore null and void, especially if these agreements had any provisions concerning spousal support. But in 2007, Florida joined most other states by adopting the Uniform Premarital Agreement Act. Under the UPAA, spouses and future spouses may agree on a wide range of property and non-property matters, including:

  • Management: It is not unusual for a property agreement to divide management; for example, Husband may assume control over the day-to-day affairs of rental property and Wife might make any buy/sell decisions.
  • Property Disposition: Some agreements stipulate an overall percentage division and allow the parties room to maneuver under that cap, while some agreements have specific provisions concerning the house, 401(k), and so on.
  • Simultaneous Documents: A property agreement can refer to an execution instrument like a will or trust, and it is normally a good idea to make these instruments at the same time.
  • Spousal Support: Under Section 4(a), a marital agreement may include the “establishment, modification, waiver, or elimination of spousal support.”
  • Choice of Law: This provision is important, because some states are community property states and others are equitable distribution jurisdictions.

A marital agreement may not include any provisions concerning the limitation of child support, as such items are against public policy.

Enforcing Premarital Agreements

In family law, and in civil law generally, there is a strong preference for enforcing voluntary agreements between the parties that are not blatantly one-sided or patently illegal. So, to enforce a marital agreement, the document must pass muster under this analysis.

  • Involuntary: Courts normally require coercion along the lines of “you’re not leaving this room until you sign” as opposed to “sign this or the wedding is off.”
  • Fraud: It is rare, although certainly not unheard of, for a person to lie about the contents of a document or switch signature pages.
  • Unconscionable: A 60/40 split is uneven but certainly not unconscionable. While an 80/20 split is probably unconscionable, at least under most circumstances, to overturn the agreement on this ground, the challenging party must also establish that:

o   It was unconscionable at the time it was made,

o   The other party withheld relevant information, and

o   The challenging party could not have discovered this information on his or her own.

Most spousal agreements contain severability clauses, so if a court finds that one portion is invalid, the rest of the document is still valid.

Rely on Experienced Attorneys

A marital agreement is a good way to strengthen a marriage. For a free consultation with an experienced family law attorney in Port St. Lucie, contact Eighmie Law Firm, P.A. Convenient payment plans are available.

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