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Challenging a prenup

For many Floridians, a pre- or post-nuptial agreement can be an excellent idea. These agreements can clarify which assets will stay separate and which will become marital. They can also lay out the financial implications of getting divorced.

But while these agreements can be great for virtually everyone -- from a business owner to a pet lover who wants to make sure they get their pet in the divorce -- these agreements carry risks. One risk is that the agreement will be successfully challenged in court. These challenges can invalidate the agreement altogether or establish that one or more of the provisions within the agreement turned out to mean something other than expected.

There are five main ways to invalidate a prenup: fraud, coercion, unconscionability, improperly filed paperwork and lack of legal representation. Fraud typically occurs when one party does not disclose all of their assets and debts. Coercion occurs when the agreement was signed under duress or while the signer lacked mental capacity. Unconscionability exists if the agreement is simply too unfair to enforce.

But even if the agreement is invalidation-proof, the parties have plenty to fight over. Any ambiguity can be grounds for dispute. Take, for instance, the following provision: if a spouse used $1,000,000 or more of separate property to acquire the marital property, the party shall receive a credit from the other spouse before the two divide the remaining value of such property.

The provision could mean two things. On the one hand, it could mean that a spouse would get credit for spending a million dollars or more of his or her separate funds to acquire marital assets generally. Or, it could mean that a spouse would only get credit for spending a million dollars or more of separate funds to acquire a specific marital asset. The difference could mean millions in the final division of assets.

Because of the complexities of a pre- or post-nuptial agreement, Floridians may benefit from speaking with an experienced family-law attorney.

Source: Forbes, "How Key Portions Of Prenups And Postnups Can Be Invalidated," Jeff Landers, Oct. 16, 2014

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