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What Does — and Doesn’t — Constitute Duress When it Comes to Invalidating a Prenuptial Agreement in Florida

There are many reasons why two people from two “different worlds” might decide to get married and begin a life together. When they do, especially if those differences include vast financial ones, a prenuptial agreement may be very helpful. A prenup doesn’t necessarily mean that the wealthier spouse-to-be views the less wealthy spouse-to-be as merely a “gold digger.” For many couples, a prenuptial agreement can be a beneficial and pro-active step to ensure that, should the marriage not make it “until death do us part,” that they, and not a court, will be in control of what happens to the assets post-divorce. If that’s you, then, before you start down the road of executing a prenuptial agreement, make sure you have representation from a knowledgeable South Florida family law attorney so that you can end up with a prenuptial agreement strong enough to withstand any legal challenges that may come later.

A recent divorce case from the Keys was an example of two spouses from two very different backgrounds. When the pair met in the spring of 2001, he was a 41-year-old divorcee and commercial airline pilot with a personal net worth of several million dollars. She was an 18-year-old Colombian citizen with “the equivalent of a high school education.”

Just days after the pair met, they became engaged. They married just three months after first meeting. It was an eventful three months that included a premarital pregnancy and an abortion.

Shortly before they married, the husband-to-be approached his future wife about a prenuptial agreement. He provided the agreement, composed in English, to his wife-to-be and she obtained a Spanish translation from a Colombian attorney two days before the wedding. Both parties signed the agreement the next day, which was the eve of their wedding.

After 15 years of marriage and five children, the wife filed for divorce in Florida. As part of that filing, the wife also asked the judge to throw out the prenuptial agreement on the grounds that it was the product of coercion and duress.

The courts sided with the wife, and the appeals court’s ruling offers some very useful knowledge about what is – and what isn’t – duress or coercion.

The wife testified that she was fearful that, if she didn’t sign the agreement, the husband would divulge their premarital sex and her abortion to her very conservative Catholic Colombian family, and that she might suffer reprisals as a result.

Duress requires proof of a threat, not just a fear of harm

That, according to the court was not duress. Duress does not arise from a party’s fear of an action. It can, however, arise if your spouse-to-be specifically threatens to undertake an action unless you sign a prenup that gives him/her a financial advantage. These threats can include everything from reporting you to immigration authorities or tax authorities to divulging secrets that might tarnish your reputation or embarrass you. It has to include a credible threat, though, and not just your internal fear, in order to constitute duress.

There was no evidence that the husband threatened to tell the wife’s family about the premarital sex and the abortion unless she signed, so there was no duress.

There was, however, coercion. The husband made it known to the wife that she must sign or else he would end the relationship. That kind of “sign it or bust” ultimatum is not proof of coercion by itself. What was coercion in this case was that kind of ultimatum plus the evidence that the husband repeatedly told the wife that signing the agreement was necessary for her to come to the U.S. and that she needed to sign prior to their appointment with the Colombian embassy.

The husband’s implying that signing a prenuptial agreement was a mandatory part of the immigration process (which it wasn’t), alongside the time pressures and “vulnerable physical and emotional condition following the abortion” comprised “competent, substantial evidence” of coercion.

Because this husband did not take the time and effort to “do it right,” he ended up with no prenuptial agreement at all and the couple’s assets subject to a judge’s determination with regard to equitable distribution.

If you are a person of substantial wealth who is preparing to marry someone with few assets, a prenuptial agreement may provide you with a massive amount of protection. With that being true, why take a chance on a prenuptial agreement that may or may not pass court muster? Getting your agreement invalidated could cost you millions, so make sure that the agreement you sign is something that will stand up to whatever court scrutiny may eventually come.

When it comes time to create a prenuptial agreement, make sure you do it right. Look to the knowledgeable South Florida family law attorneys at Stok Kon + Braverman to provide you with the effective representation you need to get a prenuptial agreement that not only meets your needs, but will also stand up in court.

Contact us online or by calling (954) 237-1777 to schedule your consultation.

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