Many people sign a Prenup agreement or are thinking about signing. A Prenup lawyer may have produced the agreement, or it may be a standard office supply store form.
There may have been a mediation leading to your signature. One person or the other may have high income or substantial assets. And there could be one Prenup attorney on one side, or both sides could have an attorney. This article explores the facts supporting Duress and whether it is a valid reason to invalidate, attack, or defend a Prenup agreement. This information is valuable to consider whether you are thinking about signing a Prenup or are wondering how enforceable an existing agreement is. Although there are many issues with the enforceability of agreement we will discuss one common claim – Duress.
The family law courts in Florida do recognize the validity and enforceability of Prenup agreements, also called Antenuptial agreements. There were several landmark cases where the courts discussed the requirements of agreements and grounds for enforcement and invalidation.
Valid reasons to set aside or invalidate a Prenup agreement Include
- You signed under duress
- Your spouse hid assets or liabilities
- Your spouse lied
- You were pressured or coerced to sign an agreement
- You made a mistake by signing the agreement
- There was a severe imbalance of power
- The agreement was extremely unfair
- The circumstances gave an unfair advantage to your spouse
- The agreement did not make any sense when it comes to children
These reasons may be valid but are not a guarantee of victory. The plain old fact is that invalidating agreements are an uphill battle. It is complex and expensive. Just because you made a bad decision, it does not mean you will be protected. Just because you felt duress does not mean your signature had no meaning. If reversing poor decisions were easy then no agreement in Florida would hold up under attack. There are quite a few appellate court comments throughout Florida that say in essence: the law is not designed to protect people from bad decisions.
Duress is the most common claim supporting someone’s desire to set aside an agreement. No discussion of Duress would be complete without showing how the courts in Florida have defined Duress:
Duress is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition. Two factors must be proven to establish duress:
- (a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and
- (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side. Duress involves a dual concept of external pressure and internal surrender or loss of volition in response to outside compulsion.
A duress argument rarely, if ever wins the day. It is difficult to prove and most situations do not qualify as duress. I have a habit of using extreme descriptions to educate clients. One of my common explanations of duress uses the following scenario: You can invalidate an agreement if you can bring in a picture and witnesses that show the other party holding a gun on you with an evil grin on their face. You are standing in front of the agreement with a pen in your hand while the gun is pointed at you. Preferably there is a video with sound that shows your hand shaking. There are clear sounds of the other party threatening to shoot you if you choose not to sign. If that happened to you, you have a very good claim of duress. But no one ever comes into my office with those types of facts and proof. The vast majority of clients talk about their state of mind, their fear, and the pressure. Almost all of those clients have nothing to show except their memory. As stated, a duress argument rarely, if ever wins.
In a classic duress claim, the other party had to apply improper external pressure or influence over you. Most of the courts interpret that phrase to mean the other side did something wrongful. In the most extreme situation the concept of wrongful can mean someone held a gun on you. But that can also mean unfair and extreme tactics were used. Whatever the other party used, it had to have been really extreme. It had to be so extreme that it would have taken away the free will of a person in your situation. A good way to judge that is to imaging whether a story of the circumstances would shock the senses of a unconnected stranger upon hearing the story.
Threat to Cancel Marriage
One common threat is to cancel the marriage if you did not sign the agreement. Whether that particular threat was improper or wrongful depends on your particular situation and circumstance. The courts have made it clear that in general, a threat to cancel a marriage is not in itself a valid reason to throw out an agreement.
Here is a description of a threat to cancel a marriage that would be improper, and would be considered duress:
Your spouse is extremely wealthy. You are not. The wedding ceremony was planned for six months. It was a lavish wedding with all the fancy trimmings. Friends, family, and other guests made plans to attend. Many of them made travel arrangements including flights and hotels. There was never any mention of a Prenup or any other type of agreement. Everything was on track and your dreams were about to come true. Unfortunately 24 hours before the wedding, your spouse cornered you and pushed a Prenup agreement in your hands. There is a threat to cancel the wedding if you. In the next instant you realize what would happen if the wedding were canceled: wasted money, embarrassment, public scandal, and dreams of a good life evaporating.
This is an example of a duress claim that would likely succeed. The spouse’s behavior was extreme; there was last second pressure, and an extreme imbalance of power. Twenty-four hours is not enough time to hire an attorney or get good advice. And the circumstances suggest that no person would be able to refuse signing an agreement with that sort of timing.
Here is a description of a threat to cancel a marriage that would NOT be improper:
Both parties work for a living. No one is fabulously wealthy but one party is earning pretty decent money. One side may have a business or real estate and does not want to lose it if the marriage fails. The wedding is an average but not spectacular affair. There are many people coming but mainly from the same state where you live. Three weeks before the wedding your soon-to-be significant other pulls out a Prenup. A Prenup or divorce attorney may have drafted it, or it may be a standard form. In any case you decide to look at it later. Three days before the wedding you hear an ultimatum: sign the agreement or no marriage. You aggravate for another day and then decide to sign.
This is an example of a duress claim that would probably fail. There was no extreme behavior. The only threat made was “no signature – no marriage.” There is nothing wrongful about that because people have a right to protect themselves with a contract. The agreement was available to look at three weeks before the wedding. There was an opportunity to hire an attorney for a consultation and there was certainly a reasonable chance to cancel the wedding without too many consequences.
There are a million shades of gray. There is no exact standard for timing, use of an attorney, or amounts of wealth involved. Every situation is different. And Duress is not the only issue involved with the validity of Prenup agreements. The point is that you must think clearly when a Prenup agreement is at issue. The person presenting the agreement must be aware of the entire process and be very careful. The person that tries to invalidate or enforce the agreement must be aware of many factors surrounding these types of agreements. It is not a simple issue. And stock forms from office supply stores are never a good idea.
A good Prenup / Antenuptial lawyer evaluates the situation and examines the process for strengths and weaknesses. That evaluation could expose ways to attack or defend your agreement. The attorneys at The Divorce Center, Ayo and Iken PLC can examine your agreement or guide you in the preparation. We attack and defend Prenup agreements, depending on the goal of our client. This is an area of law where you need a thorough analysis of the situation. Call us or visit us for a quote on this important part of your decision.
Howard Iken is a prenup agreement attorney in Tampa, Florida and is part of a multi attorney practice in Orlando, Lakeland, New Port Richey, and Clearwater. He provides assistance and consultation for drafting prenups, attacking prenups, and defending prenups.