WILL YOUR PRE-MARITAL AGREEMENT PROTECT YOU?

♠ Posted by Marc J. Soss in estate plan,florida estate planning,Last Will and Testament,post-marital agreement,pre-marital agreement,Revocable Trust,Sarasota attorney,Sarasota Tax Lawyer at Wednesday, September 16, 2015

 

In Hahamovitch v. Hahamvitch, the Florida Supreme Court Case No. Sc14-277 (September 10, 2015) addressed a divorcing spouse claim that a twenty (20) year old pre-marital agreement did not apply to the enhanced value of non-marital property, attributable to marital labor. Her position was that the enhanced value to the husband’s assets was subject to equitable distribution. The divorcing spouse additionally claimed an interest her husband’s earnings, since their agreement did not specifically address the issue.

The husband argued that the agreement did provide that the property “owned or hereby acquired by each of them respectively” would be free of claims of the other spouse. It also provided that “each party agrees that neither will ever claim any interest in the other’s property,” and if one party “purchases, [a]cquires, or otherwise obtains, property in [his/her] own name, then [that party] shall be the sole owner of same.” Thankfully, both the District Court of Appeals and the Supreme Court concurred and found that the above general waiver language was broad enough to protect enhancement in value of property and the husband’s separate earnings as separate property of the husband, thus denying the wife an interest in those assets upon divorce.

When drafting marital agreements it is important to look to Fla.Stats. Section 61.079 and Casto v. Casto,  508 So.2d 330 (Fla. 1987), in which the Florida Supreme Court found that unfairness or unreasonableness can negate enforceability, although full and complete financial disclosures will still allow for enforceability even if the agreement is unfair or unreasonable.