Do I Owe Temporary Alimony or Attorney Fees in a Florida Divorce with a Prenuptial, Postnuptial or other Marital Agreement?

1097209_shaking_hands.jpgFlorida recognizes the use of premarital and post marital agreements when deciding the outcome or possible outcome of a divorce. In some cases, during the marriage the parties may find themselves thinking of divorcing and may enter into a marital settlement agreement, but ultimately not have the agreement entered with the court because they are able to reconcile the marriage, this too is valid in Florida. When parties decide to divorce any agreement between the parties, whether premarital agreement, post marital agreement or a prior marital settlement agreement that allows for enforcement later if the parties reconcile, can be construed as an enforceable contract in the divorce proceedings. As a Jacksonville divorce lawyer, issues can arise regarding the enforceability of the agreement and in order to fight the document, the parties may need to hire separate attorneys, potentially leaving one of the parties needing financial assistance during the contest of the divorce. Therefore, Florida case law allows for temporary support to be awarded for temporary alimony and attorney fees.

Enforcing or contesting a premarital agreement, post marital agreement, or a marital settlement agreement may require attorney time and costs. In order for an agreement to be contested, the issues that come to question are laid out in Florida Statute 61.079. Premarital agreements are enforceable unless it can be shown that one or more of the following occurred:

1. The agreement was not entered into voluntarily by both parties;
2. The agreement is the result of fraud, duress, coercion or overreaching (e.g. Hiding a bank account with thousands of dollars.)
3. The agreement was not done in good conscience and before the signing:
a. There was not a true disclosure of assets of debts;
b. There was no waiver of such a disclosure by either party; and
c. The other party could not have known of the hidden asset or debt.

The same provisions would be necessary in any agreement such post marital or marital settlement agreements. The court ultimately has to decide whether an agreement was reach in an unconscionable manner.

The real trick to most agreements is that the parties have to be in full disclosure of assets and liabilities so that they know what is being agreed upon. The reality is that full disclosure leads the parties to more open conversation about the future wants and needs and the ability to provide for such. Not doing so would lead the possibility of entering in an agreement that benefits only one party and ultimately leaves the other in a worse position than had the agreement not been signed. Communication and understanding of a contract and its related terms goes directly the enforceability of said contract and helps in future litigation. If the parties do not meet all criteria for such an agreement, then the agreement may be put aside and the court could make the parties proceed as if an agreement never existed. Again, agreement cannot waive a party’s right to spousal support and attorney fees that may be necessary temporarily while the validity of the agreement is contested in the Court. However, both parties can work at reducing the length of time necessary to contest such agreements.