PRE AND POST NUPTIAL AGREEMENTS
A pre-nuptial agreement is a contract entered into by parties intending to marry, prior to marriage, which lays out the rights and obligations of both parties in the event of divorce or death and sets forth the responsibilities of either party during the course of the marriage. To be enforceable, a pre-nuptial agreement must be in writing and signed by both parties. Post-nuptial agreements are similar to pre-nuptial agreements, however they are executed after marriage and are often entered into by a husband and a wife in lieu of or prior to an agreement to file for divorce. Whether a pre-nuptial or a post-nuptial agreement, both parties are required to make a full financial disclosure to one another prior to entering into the agreement and should be represented by independent counsel to increase the likelihood of enforcement of the agreement in a contested divorce or estate proceeding. In the state of Florida, rights regarding child support, custody, or visitation cannot be waived or affected by nuptial agreements. Though not a requirement under Florida law, parties to a nuptial agreement should seek the representation of independent counsel to ensure that their best interests are provided for within the provisions of the agreement.
If a party is seeking to set aside a pre or post nuptial agreement, the court will determine if the agreement was entered into with a full financial disclosure. The court will also consider whether duress, coercion, misrepresentation or fraud were present during the events leading up to the execution of the agreement.