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Making And Breaking Premarital Agreements


There is nothing fun about taking out a life insurance policy, and certainly a life insurance plan does not mean that the signer expects to die early. However, responsible people purchase such policies, to be prepared for the unexpected and help everything go a bit more smoothly in the event of an untimely death.

The same principles apply to premarital agreements. There is absolutely nothing romantic about a property agreement, and executing such a document does not mean that one plans to get a divorce later. However, it is a fact that many divorcing couples spend considerable amounts of time and money arguing over property division matters, and a premarital agreement effectively short-circuits all these arguments.

Making a Premarital Agreement

In years past, many people did not consider premarital agreements due to the complex web of laws and court decisions in this area. But thanks to the Uniform Premarital and Marital Agreements Act, which Florida and most other states have adopted, the laws are clear and the results are more certain, even if the couple travels across state lines, which is often the case.

Some people use premarital agreements exclusively to divide property outside the emotional cauldron of divorce; others use them to predetermine succession and inheritance matters. The UPMAA reflects both these needs, as a premarital agreement can:

  • Limit Spousal Support: In some cases, a premarital agreement may even eliminate alimony altogether.
  • Classify Property: Especially in long marriages, property is often commingled (g. Husband uses money from his paycheck to pay for improvements on a rental house he owned before the marriage). Premarital agreements can clearly define who owns what, and the pacts can be modified at almost any time upon mutual agreement.
  • Determine Inheritance: Stepchildren are often excluded from a step-parent’s inheritance, and uncertainty over control can cripple a family business in the event of divorce.

Premarital agreements may not cover child custody, child support, or any other matter forbidden by public policy.

Breaking a Premarital Agreement

Judges almost always enforce agreements between spouses that are entirely mutual and not terribly one-sided, and premarital agreements fit into this mold. That being said, there is no such thing as an ironclad contract. To successfully challenge a premarital agreement, the challenging party must show:

  • Involuntariness: A “sign or else” ultimatum may be sufficient if there are other facts as well, such as Wife presenting Husband with a premarital agreement a few hours before the ceremony. A premarital agreement can also be involuntary if the signing spouse was not represented by counsel.
  • Unconscionable: “Unconscionable” is not the same as “unfair” or “uneven.” Moreover, the challenging party must show that the agreement was unconscionable when the parties signed it.

To illustrate this last point, consider the property agreement between Frank and Jamie McCourt, the California couple who owned the Los Angeles Dodgers in the early 2000s. During their divorce, with the team in bankruptcy and all but worthless, Ms. McCourt gave up her share of the Dodgers for about $300 million in cash and property, which seemed like a good deal at the time. A few years later, when Mr. McCourt sold the team for $2.2 billion, Ms. McCourt could not overturn the property agreement, even though it meant she was about $900 million short of an even division.

Rely on Experienced Attorneys

A premarital agreement is more than divorce insurance. 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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