Florida Premarital Agreement

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                                      Their Future in Florida
                                                     By K. Dean Kantaras

       OR MANY YEARS, PREMARITAL                                                                The problem is that, in a discussion, a

F      or Prenuptial Agreements have
       been an important part of the
legal and sociological landscape. Future
                                                                                             lawyer can tell you what the new statute
                                                                                             says and how it differs or seems to change
                                                                                             the existing law. But, in fact, until Florida's
spouses have signed such agreements for                                                      appellate courts have interpreted and
a variety of reasons. Mostly, Premarital                                                     ruled on the new laws, there are many
Agreements safeguarded one of the party's                                                    questions that can't be answered.
assets and income for their children                                                            For instance, we know Premarital
of previous relationships. Frequently,                                                       Agreements were not enforceable until
these agreements have been signed                                                            the parties were married. That hasn't
to shield assets and income from an                                                          changed. Likewise, the parties may still
intended spouse.                                                                             provide for disposition of their assets and
   Premarital Agreements have not                                                            income, either at the time of divorce or
always been sanctioned by Florida courts.                                                    in probate proceedings. The new law
These agreements gained court approval                                                       continues to protect children, stating that
only forty-five years ago, as prior to the                                                    the parties cannot contract away an
Florida Supreme Court's decision that                                                        obligation to pay child support.
recognized their validity, these agree-                                                         It is often in the enforcement of these
ments were against the public policy of                                                      agreements that questions arise, many of
our state.                                                                                   which can't be answered with certainty.
   The law, however, is fluid and tends                                                      For example, previously the law was that
to change with the times. Thus, a body                                                       a party could sign a "bad bargain," and
of law has developed over the years to                                                       they would have to honor it. Now, the
guide lawyers and judges, and ultimately                 K. Dean Kantaras, Esq.              statute provides that these agreements
you, as to what is required for a                                                            are not enforceable if they were uncon-
Premarital Agreement to be declared             The law currently says that, as long         scionable at the time of execution and no
valid. The Florida courts decide what the    as the parties' are married, the monied         full or fair financial disclosure was made.
parties must do prior to the signing of a    spouse cannot avoid payment of alimony          However, a future spouse may now
Premarital Agreement if the agreement        during litigation despite a provision in        waive their right to disclosure. Could
is to be enforceable.                        an agreement to the contrary due to             that mean that the "fairness" requirement,
   Generally, enforcement of a Premarital    public policy. Until recently, agreements       if there is a waiver, no longer applies?
Agreement will depend on financial           could not preclude a request for attor-            I am not sure. What do you think? 9
disclosure, so that the intended spouse is   ney's fees and costs during litigation.
informed about the assets and income of      That has been altered, and attorney's
the other, with regard to the fairness of    fees may now be waived in Premarital
the agreement. Issues have been raised       Agreements.
by spouses who challenge the validity           A discussion of Premarital Agreements        EDITOR'S NOTE: K. Dean Kantaras is an
of their agreement, based upon a claim       is necessary, as the Florida legislature        attorney limiting his practice to family law
of coercion, duress, overreaching, or        has adopted new laws that have become           matters, including custody, related appeals
even undue influence. Some have claimed       effective as of October 1, 2007. It is called   and immigration. He is a member of The
that "I didn't read the agreement;" or       the Uniform Premarital Agreement Act.           Florida Bar and Clearwater Bar Association
"he (she) told me if I didn't sign an        Florida is not alone. Twenty-five other         Family Law Section. His offices are located
agreement, there could be no marriage;"      states have adopted the same or similar         at, 3531 Palm Harbor Boulevard in Palm
or "I had taken medication before I          laws. The new laws, however, do not apply       Harbor, and 1014 U.S. Highway 19 North,
signed the agreement;" and, of course,       to agreements signed before October 1,          Suite 110 in Holiday and can be reached at
"he/she forced me to sign the agree-         2007, but do control every agreement            (727) 781-0000, fax: (727) 938-3939, and
ment." Fortunately, these "defenses" don't   signed on or after that date and is now         emailed at
usually work.                                governed by those laws.

168   TAMPA BAY MAGAZINE                                                                                      NOVEMBER/DECEMBER 2007

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