- Prenups and Preventive Law
- September 23, 2016
- Law Firm: Mara Law P.A - Ormond Beach Office
You are in love. The person who is the fortunate recipient of that love makes your heart smile every day. And then, you pop the all-important question. Or perhaps you are on the receiving end of the romantic query. Life feels like it could never get better.
Preparations for the wedding ensue and the excitement builds as you imagine what life will be like with your special someone. And at the same time, the realities of your financial situation weigh on your mind. You own many valuable assets - assets you would like to protect in case things don't go as planned.
You certainly don't want to be a "killjoy" and you definitely don't want your spouse-to-be to think that he or she is less important than your assets. But still, you want to address what is on your mind. You are a realist and know that while you are committed to making this marriage work, statistically it may fail.
So, what do you do?
First, you should be clear about your intent in having a prenuptial agreement. The more clarity you have regarding the reasons you need to have this legal document drafted and signed before marrying, the more success you will have in conveying your intent both to your intended and to your lawyer. This can be especially important in matters of the heart. In essence, you are bringing to light the prospect of divorce prior to you and your fiancé legally committing to each other. Therefore, spending time thinking about the real reasons you need this to happen will help not only you and your lawyer, but also your spouse-to-be, understand the importance of this document.
And doing this first can set the stage for proper pacing and preparing. Don't rush drafting or executing these agreements. This process should be metered and well-considered (e.g. Don't present the unseen and unconsidered agreement to your husband-to-be the night before the wedding).
Prenuptial agreements are part of what we call "preventive law." In preventive law, we take the uncomfortable step into the future - a future we don't want. We do this so that we can thoughtfully ascertain what could go wrong in order to establish a course of action that can help us better move through whatever goes wrong. Make sense?
Creating a prenuptial agreement can be a kind thing to do. This is especially so if you include language that requires civil and respectful behavior and communication, and provides for settlement mechanisms such as negotiation and mediation. Setting the stage for respect and civility in the midst of potential conflict can help mitigate the trauma associated with relational discord.
An additional tip for ensuring a sound prenup sounds like a "no-brainer." Every detail for which you require agreement should be in the document. Believe it or not, it was not until 2007 that Florida Statutes Section 61.079 made this a requirement. And if you forgot to include something, want to change an item, or a new issue arises after the proper execution of the agreement, that should be drafted and executed with the same formalities as the original agreement.
While there are many other issues of which you should be aware, one that stands out is the need for full disclosure. You may be tempted to provide or require only an overview of the assets at issue. It may feel counterintuitive to be a stickler for full and open disclosure while you are happily choosing invitations. Or you may feel like you are raining on a parade by providing your future spouse with in-depth documentation while you are tasting wedding cakes.
However, for the love of everything good to come in your relationship, please don't get sloppy here.
The Casto case (508 So. 2d 330) gives us guidelines for disclosure requirements in the event the validity of an agreement is challenged. While the Casto case dealt with a postnuptial agreement, it is established that the rules set forth in Casto regarding this type of challenge apply not only to postnuptial agreements, but also to prenuptial agreements. The Posner case (233 So. 2d 381) in which a prenuptial agreement was at issue, helps us understand via Del Vecchio (143 So. 2d 17), also a prenup case, that the rules for ascertaining the validity of a postnuptial agreement and a prenuptial agreement are the same, courtesy of the Weeks case (143 Fla. 686) in which one of the issues was a postnuptial agreement.
Per Casto, it first has to be proven by the challenging spouse that the agreement is unreasonable or unfair (another issue of which you need to be aware when drafting). After this step, the presumption of asset concealment can be rebutted by the spouse defending the agreement by showing "(a) a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and the income of the parties, or (b) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties."
As you can ascertain from the language in Casto, option "A" leaves less room for disagreement.
In the period before a wedding, which can be an emotional time for either or both parties, logical thought is not usually taking the forefront. But, it's no time to get loosey goosey with proper disclosure. Lay it all out on the table. Put everything into a spreadsheet. Make sure the other party understands your financial universe in detail. And then, make sure this disclosure step receives the same formalities as the agreement to come. The exchange and understanding should be committed to writing and executed by both parties.
When we have our preventive law thinking in play, it's not always fun. However, in the future, you may be thanking your "self of the past" for taking the time to contemplate unexpected turns in the road.