Are Antenuptial Agreements Valid

Are Antenuptial Agreements Valid and Enforceable in Florida?

Until about 1970, Florida law limited the ability of married couples to execute contracts defining their respective rights upon dissolution of the marriage. The majority rule was that "agreements to facilitate or promote divorce are illegal as contrary to public policy." Allen v. Allen, 111 Fla. 733, 150 So. 237, 238 (1933); see Gallemore v. Gallemore, 94 Fla. 516, 114 So. 371, 372 (1927); see also Posner v. Posner, 233 So.2d 381, 382 (Fla.1970) ("Posner I ")

In 1970, however, the law began to evolve towards enforcement of these agreements. In Posner I, the Florida Supreme Court held that antenuptial agreements "should no longer be held to be void ab initio" on public policy grounds. 233 So.2d at 385. It based its decision on the changing societal views towards marriage: "With divorce such a commonplace fact of life, it is fair to assume that many prospective marriage partners ... might want to consider and discuss ...--and agree upon, if possible--the disposition of their property and the alimony rights of the wife in the event their marriage, despite their best efforts, should fail." Therefore, it allowed couples contractually to limit post-dissolution alimony payments.

In the follow-up case of Posner v. Posner, 257 So.2d 530 (Fla.1972) ("Posner II "), however, it limited this freedom by allowing a court to modify the agreement. Id. at 535; see also Belcher, 271 So.2d at 13 (noting that "Posner I holds, upon the satisfaction of certain conditions, that antenuptial agreements limiting alimony to a certain amount are enforceable (and subject to modification as held in Posner II )").

Shortly after Posner II, the Supreme Court considered in Belcher "whether or not by express provision in an antenuptial agreement the husband can, by the payment of a present, fixed consideration, contract away his future obligation to pay alimony, suit money and attorney's fees during a separation prior to dissolution of the marriage." It held that "[u]ntil there is a decree of dissolution of the marriage, thus ending her role as wife, the wife's support remains within long-established guidelines of support by the husband which cannot be conclusively supplanted by his advance summary disposition by agreement." Given the husband's long-established obligation of spousal support "under the historical line of cases since shortly after Florida became a state in 1845," tradition and the perceived need to protect women led the Court to conclude that pre-judgment support obligations cannot be waived. This is still the law.
The Supreme Court has not extended the right to contract to provisions waiving the right to recover pre-judgment support such as temporary alimony. Florida courts do not allow attempts to waive prejudgment support. See Fernandez v. Fernandez, 710 So.2d 223, 225 (Fla. 2d DCA 1998) ("Belcher still requires one spouse, who has the ability, to support the other more needy spouse until a final judgment of dissolution is entered even in the face of an antenuptial agreement to the contrary"); Appelbaum v. Appelbaum, 620 So.2d 1293 (Fla. 4th DCA 1993) ( a waiver cannot be conclusive for the period before dissolution); Lawhon v. Lawhon, 583 So.2d 776, 777 (Fla. 2d DCA 1991) (a husband's duty of spousal support during the marriage cannot be "waived or contracted away in an antenuptial agreement"); Urbanek v. Urbanek, 484 So.2d 597, 601 (Fla. 4th DCA 1986) (allowing a husband to offset attorney's fees from a lump sum award would "allow the husband to contract away his responsibility for his wife's prejudgment attorney's fees, which he may not do").

Nevertheless, Florida Law recognizing such agreements was extended further in Casto v. Casto, 508 So.2d 330 (Fla.1987), where the Supreme Court of Florida confirmed
that even unreasonable nuptial agreements regarding post-dissolution property and support, if freely executed, are enforceable. In that case, the Supreme Court explained the circumstances that would justify invalidating a nuptial agreement. The Court stated that there were two ways an otherwise enforceable nuptial agreement may be held invalid. First, the agreement may be set aside or modified by a court if it was "reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching." Second, if the agreement is "unfair or unreasonable ... given the circumstances of the parties," and the trial court finds the agreement "disproportionate to the means of the defending spouse," then the rebuttable presumption is that "there was either concealment by the defending spouse or a ... lack of knowledge by the challenging spouse of the defending spouse's finances at the time the agreement was reached." Further, incompetence of counsel is not a ground to set aside a valid nuptial agreement.

In Lashkajani v. Lashkajani, 2005 WL 1529936 (Fla.), decided on June 30, 2005, the Supreme Court of Florida held that prevailing party attorney's fees provisions in such agreements, concerning litigation over the validity of the agreements themselves, are enforceable. Because prenuptial agreements regarding post-dissolution support are enforced "as a matter of contract," and prevailing party clauses have long been enforceable in ordinary contracts, the court found no reason not to enforce them. While these clauses technically involve an expense incurred during marriage, they are more closely related to enforcing the prenuptial agreement, which distributes assets after marriage, than they are to ensuring that each spouse supports the other during the marriage. Valid prenuptial agreements regarding post-dissolution support are contracts.

The court noted that while there is "a vast difference between a contract made in the market place and one relating to the institution of marriage," valid prenuptial agreements regarding post-dissolution support are enforced "as a matter of contract." The difference is in the standard used to determine the contract's validity. When deciding whether to enforce a prenuptial agreement, trial courts must "carefully examine the circumstances" surrounding the agreement because parties to a prenuptial agreement are not "dealing at arm's length." Provisions in ordinary contracts awarding attorney's fees and costs to the prevailing party are generally enforced. The only way to recover attorney's fees and costs is if a statute authorizes it or the contract so provides. Trial courts do not have the discretion to decline to enforce such provisions, even if the challenging party brings a meritorious claim in good faith. Such provisions exist to "protect and indemnify" the interests of the parties, not to enrich the prevailing party.

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