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How do I determine the Enforceability of Postnuptial Agreements

Miami, FL |

In Florida, there are three requirements for an enforceable postnuptial agreement: (1) there is no fraud, deceit, duress, coercion, misrepresentation, or overreaching; (2) the agreement is not unreasonable or disproportionate; and (3) both spouses completed full and fair financial disclosure or had knowledge of the other’s finances. ---Case: Casto v. Casto, 508 So.2d 330 (1987)

My case does not meet (2) of the requirements.
I was forced under duress and coercion to sign a post-nup.
Plus we did not give each other a financial disclosure.

I also understand to prove coercion is practically impossible but if I have an affidavit from a family member that witnessed the event would the Postnup still be enforceable?

please advise

Attorney Answers 4

Posted

Not providing full financial disclosure (or being afforded the same) can be enough to set aside a pre-nup. Duress would have to be proven based on the circumstances leading to your allegation. For example, timing is a relatively easy way to prove that you were under duress (ie if it was signed a few days before the wedding), but in most cases one would have to look at the specific facts surrounding why you are claiming duress.

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Hillary Johns

Hillary Johns

Posted

And of course have an attorney licensed in your state review the prenup and all of the facts.

Posted

If what you allege can be proven with competent and credible evidence, you have a classic case to set aside the antenuptial agreement. Also, whether you were represented in the review and execution of the agreement is relavent, as well as the amount of time you had to reciew the agreement before you signed it. Nevertheless, you must sit down with a lawyer to more closely assess your case and know exactly how to proceed

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If I would add a few things to what my colleagues have said. I think that no disclosure is easier to prove then duress. The key is the amount of non-disclosure, such as whether you knew the extent of your spouses's assets. Factors that you have not mentioned may also be important. For example, the length of the marriage, your own financial situation, whether or not you were represented by an attorney.

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You have gotten good advice from all of the lawyers answering, One additional thing to keep in mind in regard to your decision to litigate this issue: truth has no real impact on a decision made by the Court in family matters but the " perception of truth" is everything. That is to say, the two most important words in our practice are " prove it". Simply knowing what you believe to be true will get you nowhere unless your witnesses testimony can establish an appearance of the truth. Be sure to have your testimony in line before you decide to invest in this fight. If we can help call 954 522 1922 for Brawer, Hirsch and Assoc. PA

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