USA – FLORIDA Law and Practice Contributed by: Elisha D. Roy and Carolyn Ware, Sasser, Cestero & Roy
of an alimony. The payor must be at retirement age as defined by the particular profession (such as police officers and firefighters, who often have mandatory retirement) or the Social Security Administration (for most that age is around 67). The request for modifica ‑ tion can be filed no more than six months before the expected retirement. 2.5 Prenuptial and Postnuptial Agreements Both pre and postnuptial agreements are recognised in Florida. Prenuptial agreements are differentiated by their entry date. Prenuptial agreements, now referred to as premarital agreements, entered after 1 October 2007, are governed by the Uniform Premarital Agree ‑ ment Act (UPAA). Prenuptial Agreements, Entered Prior to 1 October 2007 and Postnuptial Agreements The key case law on these agreements is Del Vecchio v Del Vecchio , 143 So. 2d 17 (Fla. 1962) and Casto v Casto , 508 So. 2d 330 (Fla. 1987). The validity of these agreements is determined by a two-pronged analysis. An agreement can be deter ‑ mined invalid by meeting either prong. • Prong 1: A spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresen ‑ tation or overreaching. • Masilotti v Masilotti , 29 So. 2d 872 (Fla. 1947). • Prong 2: A spouse looking to set aside the agree ‑ ment must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Once the claiming spouse establishes that the agree ‑ ment is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse’s finances at the time the agreement was reached. The burden then shifts to the defending spouse, who may rebut these presumptions by showing that there was either:
• a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and the income of the parties; or • a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties. Casto , 508 So. 2d at 333. Prenuptial Agreements, Entered After 1 October 2007 Agreements entered after 1 October 2007, referred to as premarital agreements, are governed by the UPAA. Premarital agreements must be in writing and signed by both parties. Pursuant to Florida Statutes § 61.079, a premarital agreement is not enforceable if the party against whom enforcement is sought proves that: • the party did not execute the agreement voluntar ‑ ily; • the agreement was the product of fraud, duress, coercion or overreaching; or • the agreement was unconscionable when it was executed and, before execution of the agreement, that party: (a) was not provided a fair and reasonable disclo ‑ sure of the property or financial obligations of the other party; (b) did not voluntarily and expressly waive, in writ ‑ ing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. Premarital and postnuptial agreements may contract regarding property rights, disposition for property, spousal support, rights in and disposition of death benefits from a life insurance policy, choice of law governing the agreement and any other personal rights not in violation of public policy or a law impos ‑ ing a criminal penalty.
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