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Kristin Adamson, Esq. Tallahassee, FL. AGREEMENTS. MARITAL AGREEMENTS PRE AND POST NUPTIAL AGREEMENTS TOP TWELVE . z. z. z. 1. Marital Agreements are CONTRACTS!!! Contract Law Governs the Interpretation of Marital Agreements. Marital Agreements are CONTRACTS!.
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Kristin Adamson, Esq. Tallahassee, FL AGREEMENTS
MARITAL AGREEMENTS PRE AND POST NUPTIAL AGREEMENTS TOP TWELVE z
z z • 1. Marital Agreements are CONTRACTS!!! • Contract Law Governs the Interpretation of • Marital Agreements.
Marital Agreements are CONTRACTS! • Ledea-Genaro v. Genaro, 963 So. 2d 749 (Fla. 4th DCA, 2007). No longer protective and paternalistic toward impecunious and/or uneducated spouses. • This includes prenuptial agreements - Mulhern v Mulhern, 446 So. 2d 1124 (Fla. 4th DCA, 1984) and post nuptial agreements - Chipman v Chipman, 975 So. 2d 603)(Fla. 4th DCA, 2008) • A court may not rewrite the terms of a Marital Agreement, no matter how motivated it is to do what is "fair and equitable."
Marital Agreements are CONTRACTS! • Courts will revise child support and child custody provisions of agreements when necessary. • Lampert v Lampert, 57 So. 3d 287 (Fla. 4th DCA, 2011) and Comstock v Comstock, 74 So. 3d. 1094 (Fla. 4th DCA, 2011) held that a mediation agreement was nonbinding and unenforceable as to child custody and child support until the agreement was determined to be in the best interest of the children.
2. The Stated Meaning and Purpose of a Marital Agreement Can Override Existing Laws. z
The Stated Meaning and Purpose of a Marital Agreement Can Override Existing Laws. z
Parol Evidence May Only Be Used As a Last Resort • Only after court has decided that an agreement's terms are ambiguous may the court admit parole evidence. Taylor v Taylor, 1 So. 3d 348 (Fla. 1st DCA, 2009) • The court must make factual findings of the parties' intent and must arrive at a reasonable interpretation of the text of the entire agreement. Conway v Conway, 111 So. 3d 925 (Fla. 1st DCA, 2013)
Parol Evidence May Only Be Used As a Last Resort • What is ambiguous? • Fazio v Fazio, 247 So. 3d 531 (Fla. 4th DCA 2018). The appellate court found that agreement provision is ambiguous because it is fairly susceptible to different constructions. This case dealt with an FRS pension. Fazio court said, “If the Agreement intended to split the pension equally, it could easily have said that the pension would be divided 50/50. Yet, the Agreement refers to the "marital portion" of the FRS plan, a wording that suggests that the parties contemplated that some portion of the plan was non-marital. Remanded to the circuit court to hold an evidentiary hearing where the trial court may consider extrinsic evidence to determine the meaning of the disputed language.
Parol Evidence May Only Be Used As a Last Resort • Parole evidence is admissible to prove that a mutual mistake was made in an agreement allowing the agreement to be set aside, revoked or reformed. Moree v Moree, 59 So. 3d 305 (Fla. 2d DCA, 2001). • Husband filed an objection to the MSA and a motion to set aside or reform the MSA. He stated that the parties expected to receive equivalent net value with some adjustment to settle the Husband’s alimony claim. He alleged that due to the parties’ mutual mistake, the MSA contained errors and did not accurately reflect the value of some accounts due to tax implications. He asserted that the errors adversely affected him by over $200,000. Court held that a marital settlement agreement may be set aside when it is entered into as a result of mutual mistake, coercion or duress.
Parol Evidence May Only Be Used As a Last Resort • Parole evidence is admissible to prove a unilateral mistake and may cause the agreement to be set aside, revoked, or reformed if it is egregious and inequitable. Maryland Casualty Company v. Krasnek, 174 So.2d 541 (Fla. 1965), and Flynt v. Progressive Consumers Insurance Company, 980 So. 2d 1217 (Fla. 5th DCA, 2008) • A deed of conveyance may be rescinded or cancelled for a negligent mistake of fact that is unilateral where the negligence is not a breach of legal duty, and the mistake is material and made under circumstances that render it inequitable for the other party to have the benefit thereof, even though he did not by commissions or omission contribute to the mistake, and the parties were dealing at arm’s length and on equal footing
4. No Specific Waiver of Growth or Appreciation is Needed in a Prenuptial Agreement z
No Specific Waiver of Growth or Appreciation is Needed in a Prenuptial Agreement • Earliest cases held that specific language was required for a waiver to be valid. Hahamovitch v Hahamovitch, 133 So. 3d 1008 (Fla. 4th DCA, 2014) subsequently held that a broad waiver of growth or appreciation provisions is sufficient to waive a spouse’s claim to the enhanced value of the other spouse’s non-marital property that resulted from marital earnings. • Berg v Young 175 So. 3d 863 (Fla.4th DCA, 2015) held that where wife had waived any interest in separate property, the husband's dealership interest was nonmarital and not "active marital efforts of the husband."
5. The Standard of Review For Marital Agreements is De Novo z
The Standard of Review For Marital Agreements is De Novo • The trial court's interpretation of a prenuptial agreement is de novo. Murley v Wiedamann, 25 So. 3d 27 (Fla. 1st DCA, 2009) • The trial court's interpretation of a postnuptial agreement is as a matter of law and de novo. Chipman v Chipman, 975 So. 2d 603 (Fla. 4th DCA, 2008) • As such, appellate courts are on equal footing with the trial court as interpreters of the written documents. Muir v Muir 925 So.2d 356 (Fla. 5th DCA, 2006).
6. CASTO v CASTO 508 So. 2d 330 (Fla. 1987) GOVERNS PRENUPTIAL AND POSTNUPTIAL AGREEMENTS PRIOR TO OCTOBER 1, 2007 z
CASTO v CASTO508 So. 2d 330 (Fla. 1987) First of all Casto recognized what was NOT sufficient to overturn an agreement: • A bad bargain • Lack of competent counsel
CASTO v. CASTO 508 So.2d 330 (FLA. 1987) • Level I – fraud, deceit, duress, coercion, misrepresentation or overreaching • DURESS - Francavilla v Francavilla 969 So. 2d 522 (Fla. 4th DCA, 2007) no duress; adequate disclosure; negotiated terms; wife's lawyer drafted agreement -----Wife was 7 months pregnant at time of execution of agreement; her pregnancy forced her to leave her job as flight attendant; the agreement was not signed until an hour before the wedding.
CASTO v. CASTO508 So.2d 330 (Fla. 1987) Level I – fraud, deceit, duress, coercion, misrepresentation or overreaching • Postnuptial agreement – Kearney v Kearney, 129 So. 3d 381 (Fla. 1st DCA 2013) the trial court’s decision finding the postnuptial agreement invalid, due to overreaching, misrepresentation, and failure to disclose marital assets and liabilities, and further finding that the agreement was unfair and unreasonable, was affirmed on appeal. It should be similarly noted, that the Court found that although a spouse may accept the benefits of an agreement during the marriage, this acceptance does not preclude a later challenge to the agreement.
CASTO v. CASTO 508 So.2d 330 (Fla. 1987) Level II -The unfair or unreasonable provision • Del Vecchio v Del Vecchio, 143 So. 2d 17 (Fla. 1962) the unfairness issue is measured from the date of the execution of the agreement. • O'Connor v O'Connor, 435 So. 2d 344 (Fla.1st DCA1983) Financial disclosure need not be minutely detailed or exact. • Waton v Waton, 887 So. 2d 419 (Fla. 4th DCA 2004) the Husband disclosed that he had an ownership interest in an insurance company but did not give it a monetary value. The Court held that the disclosure was sufficient to give the Wife a general knowledge of the Husband’s assets, particularly when the Wife never sought clarification or requested any additional information. • Gordon v Gordon, 25 So. 3d 615 (Fla. 4th DCA 2009) the Husband’s financial disclosure did not list his airline pension. The Court upheld the agreement, recognizing that the Husband had disclosed substantial assets, and the undisclosed pension plan constituted only a small fraction of the Husband’s total net worth.
CASTO v. CASTO 508 So.2d 330 (Fla. 1987) • TheCastotest does not apply to settlement agreements reached after the initiation of litigation. Parties in litigation are not permitted to claim lack of knowledge.Macar v Macar, 803 So. 2d 707 (Fla. 2001)
8. The Uniform Premarital Agreement Act, Fla. Stat. § 61.079 Governs Any Premarital Agreements Executed On or After October 1, 2007
The Uniform Premarital Agreement Act(UPAA) Provisions: • Premarital agreement must be in writing • All substantive rights may be addressed • After the marriage, premarital agreements may only be amended, revoked, or abandoned by a written agreement signed by both parties
The Uniform Premarital Agreement Act Provides basis for proving unenforceable and two levels as does Casto. Level I • Similar to Level I Casto: • Agreement not executed voluntarily • Agreement product of fraud, duress, coercion or overreaching
The Uniform Premarital Agreement Act Level II UPAA similar to Casto Level II but some significant differences. • The Agreement was UNCONSCIONABLE when executed and before execution the complaining party: A) was not provided fair and reasonable disclosure of property and income B) did not voluntarily and in writing waive such disclosure C) did not or reasonably could not have adequate knowledge of property and income
9. Some Rights Can Be Waived, and Some Cannot, in Prenuptial and Postnuptial Agreements z
Some Rights Can Be Waived, Some Cannot in Prenuptial and Postnuptial Agreements CAN BE WAIVED • Post-dissolution attorney fees • Elective share: Weisfeld – Ladd, 920 So. 2d 1148 (Fla. 3d DCA 2006) F.S. § 732.702(1) • Equitable distribution: this language must be very specific as to definitions i.e.; marital v non-marital and enhancement in value of each Hahamovitch v Hahamovitch, 174 So. 3d 983 (Fla. 2015)
Some Rights Can Be Waived, Some Cannot in Prenuptial and Postnuptial Agreements CAN BE WAIVED • Modification of alimony may be waived but be careful. Must specifically waive the right to modify and a general release clause is not enough. In Hahamovitch v. Hahamovitch, 133 So. 3d 1008, 1017 (Fla. 4th DCA 2014), the parties’ prenuptial agreement only contained a general waiver of alimony “except as otherwise provided for herein.” The appellate court found that such language did not specifically waive the wife’s right to seek judicial modification of the alimony provided for in the agreement, and actually considered the agreement to be “silent on modification of alimony.”
Some Rights Can Be Waived, Some Cannot in Prenuptial and Postnuptial Agreements CAN BE WAIVED • Post dissolution alimony: Parties to a premarital agreement may contract with respect to the establishment, modification, waiver, or elimination of spousal support. White v. White, 617 So. 2d 732, 734 (Fla. 2d DCA, 1993) but it MUST be express and unambiguous. • Must be express and specific as to alimony – a waiver of interest in "separate property" is not enough. Johnson v. Johnson, 779 So. 2d 620 (Fla. 5th DCA, 2001)
Some Rights Can Be Waived,Some Cannot in Prenuptial and Postnuptial Agreements • CANNOT BE WAIVED • Temporary Support: Against public policy to waive – be careful - must be requested prior to final hearing or may lose it though. Ledea – Genaro v Genaro, 963 So. 2d 749 (Fla. 4th DCA, 2007). • Temporary Attorney Fees: Again such a waiver is against public policy and will not be enforced and attorney fees cannot be limited to a certain amount. McNamara v McNamara, 988 So. 2d 1255 (Fla. 5th DCA, 2008) (Georgia Agreement not valid and enforceable in Florida with such a waiver.) Courts will allow enforcement of prevailing party provisions regarding fees however.
Some Rights Can Be Waived, Some Cannot in Prenuptial and Postnuptial Agreements CANNOT BE WAIVED • Child support: Right that belongs to a child and cannot be waived by the parents; however, can waive the substantial change in circumstances requirement for a modification. Arrabl v. Hage, 19 So. 3d 1137 (Fla. 3d DCA, 2009) • Child custody: Cannot waive custody as against public policy although again, can waive the modification standard.
10. Oral Marital Settlement Agreements Must Be Accompanied By Clear Assent of the Parties z
Oral Marital Settlement Agreements Must Be Accompanied By Clear Assent of the Parties z
12. Motions to Set Aside An Agreement Have Time Period Limitations
Motions to Set Aside An Agreement Have Time Period Limitations • Fla. Fam. L. R. P. 12.540 provides that Fla. R. Civ. P. 1.540 shall govern general provisions concerning relief from judgment, decrees or orders, except there shall be no limit for motions based on fraudulent financial affidavits. • Fla. R. Civ. P 1.540 provides that such motions must be brought within one year of the judgment .
