AGREEMENTS

Question 1

What is the requirement for all prenup post October 1, 2007

Answer 1

UPAA requires prenup to be in writing

Question 2

What is the difference between a prenuptial agreement and post nuptial agreement

Answer 2

Prenup sets forth spousal obligations and rights prior to marriage

Postnup defines and distributes what already exists

Question 3

What impact does the doctrine of parens patria have on children’s issues in prenup

Answer 3

Children’s issues can always change

Question 4

Are agreements as to custody and child support conclusive

Answer 4

No - always subject to review by court to assure child best interest considered

Question 5

Can prenup deal with rights upon death

Answer 5

Yes, it allows parties to waive rights and interest in the event of a divorce or death

Question 6

What may parties waive in a prenup

Answer 6

1. Rights to alimony after divorce IF waiver is specific
2. Right to modify alimony if waiver is express
3. Rights to ED
4. Death Rights
5. Homestead rights
6. Right to claim attorney’s fees and costs incurred AFTER divorce

Question 7

Can a prenup include general waiver of rights be interpreted to include waiver of alimony?

Answer 7

No - there has to be a clear waiver of alimony

Question 8

Prenup provides for term of 5 years of alimony but it does not include a specific waiver for modification of that term. Can party move to modify the term to permanent alimony?

Answer 8

YES - THERE MUST BE A SPECIFIC WAIVER OF MODIFIFCATION OF ALIMONY WHICH MIGHT RISE IN THE FUTURE

Question 9

Is a general waiver of ED sufficient in a prenup

Answer 9

Hahamovitch said YES - a general waiver of ED is sufficient to waive claim to enhancement of nonmarital property as a result of marital efforts

Question 10

What are death rights that can be waived in a prenup?

Answer 10

1. Elective share
2. Homestead
3. Intestate succession
4. Family Allowance
5. Preference in appointment of personal rep

Question 11

What is the result of waiving homestead rights in a prenup

Answer 11

For purposes of constitutional restriction on devise of homestead, waiving spouse is deemed to have died before the decedent

Question 12

What rights cannot be waived in a prenup

Answer 12

1. temp support
2. Tempo attorney fees incurred through FJ
3. CS, child custody and TS
4. Pension rights unless requirements of ERISA met:
   -spouse consents to election of waiver in writing
   -writing designates a nonspouse beneficiary or expressly
   permits designation by participant spouse without any
   requirement of further consent of his / her spouse
   -writing acknowledges consent to waiver is witnessed by
   plan admin or notary
   -writing is made within applicable election period

Question 13

What is the exception to the prohibition on waiving temp fees in a prenup?

Answer 13

Can include a prevailing party clause for seeking to enforce or prevent a breach of the prenup (Lashkajani)

Question 14

What consideration is needed for a prenup

Answer 14

The marriage itself is sufficient - if not married, prenup not valid.

Question 15

Under FL law, a prenup may be set aside for what two reason

Answer 15

1. Direct method
2. Indirect Method

Question 16

What is the direct method of setting aside a prenup

Answer 16

Direct Method STEP 1- Casto

(1) It was entered into under fraud, deceit, duress, coercion, misrepresentation or overreaching. The court evaluates the circumstances at the time of signing to determine whether the consent of the challenging party was voluntary.

Question 17

Who has the burden of proof under direct method to prove fraud deceit durrect

Answer 17

Challenging party

Question 18

Name 4 examples of overreaching

Answer 18

1. party takes advantage of close confidential and trusting fiduciary like relationship and exerts emotional pressure to sign
2. dominant party who acts in bad faith by misrepresenting impact of agreement and other party relies on inducements to sign
3. W had agreement drawn up and gave W all assets and left H with insufficient funds to support himself and H wasn’t represented
4. When dominant party is the grossly disproportionate beneficiary of the transaction there is a presumption of undue influence

Question 19

When will overreaching not be foudn

Answer 19

1. party had no lawyer

Question 20

When is coercion or duress found

Answer 20

When a party coerces or intimidates another to sign prenup then agreement is not voluntary

Question 21

Can duress be established where the agreement was drafted 3 days before the wedding and executed 1 day before the wedding, W had been given only 1 day to seek her own attorney to make an independent evaluation of the agreement absent any financial disclosure, and she had to either sign the agreement or cancel the wedding

Answer 21

Yes - duress found. Hjortass, 2d DCA 1995

Question 22

Is duress found if threat to expose H’s tax violations so he would sign

Answer 22

Yes - not voluntary

Question 23

W received agreement 2 weeks before wedding, H told W about proposed terms long before the agreement was prepared, H told W that before they would get married she would have to sign prenuptial agreement, and there was testimony that even if the parties did not marry as a result of W’s refusing to sign agreement H would have continued relationship - can W claim duress/coercion?

Answer 23

No duress Waton, 4th DCA 2004)

Question 24

Will threatening to not get married on its own constitute coercion?

Answer 24

No

Question 25

Will a claim of emotional strain at the time of signing the agreement constitute a claim of duress

Answer 25

No

Question 26

When is a prenup set aside for fraud or misrepresentation

Answer 26

a) The intentional concealment or misrepresentation of a party’s financial status prior to the execution of a prenuptial agreement constitutes fraud on the other party (Del Vechhio, Fla. 1962).

b) When a party to an agreement is prejudiced by the misrepresentation or fraud, he or she may attack the validity of the agreement when the other party seeks to enforce it.

c) The affirmative defense is that the agreement was procured by fraud, that the challenging spouse reasonably relied on the misrepresentation or fraudulent act and suffered prejudice so that it would be inequitable to enforce the agreement.

Question 27

H’s misrepresentation of his income to the W - is this sufficient to set aside prenup?

Answer 27

YES Baker, 4th DCA 1981).

Question 28

c) H’s threat to inform child of W’s affair or child from a previous marriage is this sufficient to set aside prenup?

Answer 28

YES

Question 29

How can a spouse set aside a prenup under the indirect method?

Answer 29

The challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties.

Question 30

Once a spouse can prove that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties, what presumption arises?

Answer 30

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

Question 31

Once a spouse can prove that the agreement makes an unfair or unreasonable provision for that spouse and the burden shifts to the defending spouse, what must they prove PRE UPAA

Answer 31

a) Defending spouse made a full, frank financial disclosure relative to the value of the marital property and the income of the parties;

or

b) The challenging spouse has a general and approximate knowledge of the character and extent of the parties’ assets and income.

Question 32

What is the test with respect to the adequacy of the challenging spouse’s knowledge?

Answer 32

Look at what the challenging spouse knew at the time of the agreement and whether the challenging spouse is prejudiced by lack of information.

Question 33

In determining whether the agreement is fair under an indirect challenge to prenup, the court should consider:

Answer 33

a) The parties’ relative situations, including ages, health, education, financial status and experience.

b) Whether the provisions made in the agreement would enable both parties to maintain a standard of living consistent with that established during the marriage.

c) Whether the provisions for the less affluent spouse is disproportionate to the means of the more affluent spouse.

d) Compare the provisions to what each party would get without the agreement.

e) Examine property each brought into the marriage.

Question 34

What is the general premise of full & frank disclosure

Answer 34

a) Actual form and manner of disclosure is not significant so long as the party provides their financial net worth and income.

b) The disclosure need only be full and fair, not minutely detailed or exact.

Question 35

What are defenses to enforcement of prenups

Answer 35

1. Abandonment and Rescission—where one party acts inconsistent with the existence of the agreement and the other party acquiesces in the inconsistent conduct (i.e. tearing up agreement with intent to destroy).
2. Reformation—appropriate where there has been a mutual mistake in the way the instrument was drawn which does not accurately express the true intention or agreement of the parties.
3. Acceptance of the Benefits—a person may not retain the benefits of a settlement while attacking its validity. However, where the person is entitled to at least the amount accepted, he/she is not stopped from claiming a greater amount.

Question 36

What principles apply to interpretation of an prenup

Answer 36

1. When language of agreement is subject to more than one reasonable interpretation, Court must use the rules of contract construction to advocate a certain interpretation or application.
2. Words of a contract are to be given their plain and simple meaning, unless the context of a contract indicates that an unusual meaning was intended.
3. Where a contract is ambiguous, it should be interpreted against the interests of the party having drafted it.

Question 37

How should court handle ambiguity in a prenup

Answer 37

5. Court cannot ignore overall intent of the agreement and should interpret any ambiguity so that it does not ignore the clear operative clauses of the agreement

Question 38

Are whereas clauses in a prenup binding?

Answer 38

a) Prefatory recitations contained in the “whereas” clauses are not binding, operative provisions to an otherwise unambiguous contract.

b) Operative clauses prevail over the recital clauses in the event of a discrepancy.

Question 39

When can a court resort to recital clauses?

Answer 39

If the operative provisions are ambiguous, in order to ascertain the meaning of its operative provisions.

Question 40

Is attorney client privilege waived when a party seeks to invalidate a prenup?

Answer 40

In moving to invalidate a prenuptial agreement, movant does not automatically waive his/her attorney-client privilege as to the comments made to attorney regarding his/her awareness of the other spouse’s financial circumstances.

Question 41

What law applies to a prenyp

Answer 41

1. Law specifically set forth in agreement but if it’s silent then
2. contract law applies in determining what state law will govern—Doctrine of lex loci contractus—law of jurisdiction where a contract was executed controls.

THIS WAS ASKED VIA MC OR SHORT ANSWER ONCE OR TWICE

Question 42

Is a party is challenging a prenup - must it be plead?

Answer 42

YES - pleading must allege the challenge as an affirmative defensive in answer if you are respondent and if the basis is fraud - must plead with specificity

If petitioner doesn’t raise prenup in pdm, and R wants to enforce, raise it as an affirmative defense in answer

Question 43

What is the UPAA

Answer 43

Uniform Premarital Agreement Act

Question 44

What does UPAA apply to

Answer 44

All prenups after 10/1/2007

Question 45

How can you challenge prenup under UPAA

Answer 45

• Adopts Casto “Direct” method of challenging, and adds “or not entered voluntarily.”
• Adopts Casto “Indirect” method of challenging with notable change—the initial question is whether the agreement is “unconscionable”.

Question 46

Pre UPAA, what was the initial question under the indirect method

Answer 46

Whether agreement is unfari

Question 47

Post UPAA, what is the initial question under indirect method

Answer 47

Whether agreement is unconscionable

Question 48

What is the big distinction under a challenge to prenup under UPAA

Answer 48

Under UPAA, once an agreement is shown to be unconscionable, the burden REMAINS with the challenging party to prove no disclosure and no adequacy of knowledge of finances (this is unlike pre-UPAA cases where once an agreement is shown to be unfair, the burden shifts to the other party to prove the sufficiency of disclosure).

Question 49

What does the UPAA provide

Answer 49

1. All prenuptial agreement must be in writing and signed by both parties;
2. Allows the parties to address all substantive rights in the agreement; and
3. Provides that after marriage, a premarital agreement may only be amended, revoked or abandoned by written agreement signed by both parties.

Question 50

How does UPAA govern challenges to prenup

Answer 50

1. The party did not execute the agreement voluntarily.
2. The agreement was the product of fraud, duress, coercion or overreaching OR (DIRECT METHOD)
3. The agreement was unconscionable when it was executed, and before the execution of the agreement, the challenging party:

a) Was not provided fair and reasonable disclosure of the property or financial obligations of the other party;

b) Did not voluntarily and expressly waive in writing 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.

Question 51

Is a postnuptial agreement required to be in writing

Answer 51

In writing or read into the record.

Question 52

When can an oral post judgment agreement be enforceable

Answer 52

a) An agreement entered into on the record where there was a clear understanding of its finality by the parties was an effective and enforceable settlement of pending litigation, notwithstanding that it was subject to being reduced to writing at a later time

Just need a meeting of the minds on essential elements of the deal

Question 53

What is deemed sufficient consideration of postnuptial agreement

Answer 53

Mutual promises encompassing various rights of the parties, in addition to disposing of property owned by them, have been considered sufficient consideration.

Question 54

What are the requirements of a postnuptial agreement

Answer 54

1. in writing or read into record
2. consideration
3. consent
4. execution

Question 55

What is consent for purposes of postnuptial agreement

Answer 55

Must have voluntary, informed, mutual consent.

Question 56

What is required for execution of a postnup

Answer 56

a) Both parties must execute a final written marital settlement agreement.

b) Two witnesses are also required if the agreement provides for a conveyance of real property.

c) Two witnesses are also required if the agreement requires either party to make or refrain from making a will, or to devise or not to revoke a will or devise.

Question 57

When are witnesses necessary to a postnup

Answer 57

Two witnesses are also required if the agreement provides for a conveyance of real property.

Two witnesses are also required if the agreement requires either party to make or refrain from making a will, or to devise or not to revoke a will or devise.

Question 58

What governs challenges of a postnuptial agreement

Answer 58

Casto test REGARDLESS if executed before or after October 1, 2007.

Question 59

What is the difference between a postnuptial agreement and an MSA for purposes of a challenge

Answer 59

Postnups are entered during a period of nonlitigation

MSA is reached after litigation commenced and completion of discovery

Question 60

If an agreement is reached after litigation commenced and after discovery produced, what is a litigant prevented from doing

Answer 60

Cannot them later claim lack of knowledge and 12.540 applies bc the party could have done due diligence to unearth all relevant factors.

However, if party is not afforded time to do discovery then Casto may apply.

E.g. Macar v. Macar (Fla. 2001) a settlement agreement reached after the initiation of litigation are not permitted to claim lack of knowledge since they could have unearthed all relevant facts through due diligence

Question 61

What happens if a party fails to claim fraud as a defense to a postnup or msa

Answer 61

Claim is waived. Fraud must be plead with specificity

Question 62

When will an MSA not be enforced

Answer 62

MSA that has
a. not been entered into with adequate consideration,
b. mutual consent,
c. legal purpose, or
d. in compliance with the Statute of Frauds will not be enforceable.

Question 63

What is the Del Vecchio/Casto Test

Answer 63

1. Overreaching, Fraud, Duress, Coercion, Concealment, or Misrepresentation.
2. Unfairness and Lack of Financial Disclosure.
3. False Financial Affidavit
4. Unconscionable Agreement

Question 64

Is the fact that H was under tremendous emotional strain at the time he signed the agreement enough to show overreaching?

Answer 64

That fact alone is insufficient

Question 65

FW made lied and said that she and daughter would remain in the marital residence so the child could grow up there & she knew it was a lie but did so to induce FH to sign and he relied on that rep and was then injured by this reliance - does this satisfy fraud?

Answer 65

YES

Question 66

When is allegation of lack of financial disclosure less persuasive

Answer 66

After the parties have engaged in contentious litigation while each was represented by counsel.

Question 67

H’s motion to set aside MSA reversed where agreement required H to pay alimony in the amount of $36,000 per year, where his total gross income was $36,000 per year and the H was not represented by counsel - does he prevail on motion to set aside on grounds it was unconscionable

Answer 67

YES

However, on the other hand, an unconscionable agreement that left H with only $105 per month and no assets WAS enforced where it appeared that it was entered into freely, evidence rebutted presumption of concealment and there was evidence that H wanted out of the marriage at any cost

Question 68

Does casto fairness test apply to litigation agreements

Answer 68

NO - the parties are not dealing at arm’s length. When the parties are litigating, they are no longer in a position of trust. Therefore, the Casto indirect (unfair and unreasonable) test does not apply to litigation agreements. They are no longer dealing in arm’s length and have the benefit of retaining counsel and completing full discovery.

Question 69

What is the Petracca test

Answer 69

TEST USED TO ATTACH PRE-LITIGATION AGREEMENTS IE. POSTNUPTIAL

Unfair or unreasonable property or monetary settlements reached in the course of contested divorce litigation are enforceable as long as they are entered into knowingly and voluntarily, and not otherwise against public policy (Petracca, 4th DCA 1998).

Question 70

What is the Macar test

Answer 70

USED TO ATTACH POST LITIGATION AGREEMENTS I.E. MSA
Macar (Fla. 2001): Court erred in granting W’s to set aside final judgment incorporating MSA on basis that agreement was unfair, the H had not fully disclosed his assets and there were errors in his financial affidavit.

(1) Allegation of lack of financial disclosure/knowledge is much less persuasive after the parties have engaged in contentious litigation while each was represented by counsel.

(2) Where case is based upon 12.540, argument is limited to fraud or newly discovered evidence. Error to apply Casto test.

(3) Errors in H’s financial affidavit did not constitute fraud where H had substantially complied with all discovery requests, and that subsequent determination by W’s accountants that some brokerage accounts held by H had or could have been partially marital was not newly discovered evidence where the accountants had or could have received all documents and information regarding assets and their proper valuation prior to trial.

Question 71

What presumption exists with litigation agreements

Answer 71

A presumption exists that a “litigation agreement” reached after discovery and just before trial was executed with full knowledge by the challenging spouse, and courts are precluded from inquiring into the reasonableness of a litigation settlement. If the parties agreed to the terms, it is presumptively and conclusively fair as a matter of law

Question 72

Challenges to a litigation agreement is limited to what

Answer 72

Coercion, fraud or misrepresentation in discovery

Question 73

What are grounds under 12.540 to set asdie

Answer 73

Must be filed within 1 year unless it’s based on fraudulent FA

a) Clerical mistakes arising from oversights or omissions may be corrected by the Court at any time on its own initiative, or on the Motion of any party.

b) Mistakes

c) Inadvertence

d) Surprise

e) Excusable neglect

f) Newly discovered evidence

g) Fraud

h) Misrepresentation or other misconduct of an adverse party

i) Void judgment or decree

j) Satisfaction or Release

k) Reversal or Vacation of a prior judgment or decree on which the judgment is based

l) Filing of a false financial affidavit (no time restraint).

Question 74

What is the standard of review for contract interpretation

Answer 74

De novo

Question 75

What is a latent ambiguity

Answer 75

where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates the necessity for interpretation, or a choice among two or more possible meanings

Question 76

when is parole evidence permitted in contract interpretation

Answer 76

Never - unless latent ambiguity

Question 77

What are the effects of reconciliation or remarriage to an MSA

Answer 77

If parties reach a MSA and then reconcile or remarry, whether the agreement is effective in subsequent DOM action is based upon Provisions of the MSA. In order to have the prior MSA withstand a reconciliation or remarriage, the provision of the Agreement should specifically state the intention.

Question 78

What is novation

Answer 78

new contract

Question 79

W agreed to 6 years of alimony in MSA. Parties remarried. Prior agreement did not mention remarriage or reconciliation, was the Wife was entitled to present evidence of entitlement to permanent, rehabilitative, lump sum alimony?

Answer 79

Yes

Question 80

What factors are required for novation

Answer 80

a) The existence of a previously valid contract;
b) Agreement of all the parties to a new contract;
c) The extinguishment of the original contractual obligation; and
d) Validity of the new contract.

Question 81

Can a party avoid enforcement of choice of law provisions

Answer 81

Yes but has burden to demonstrate that the foreign law contravenes public policy

Question 82

How does a litigate apply for foreign law

Answer 82

Must apply for judicial notice

Question 83

What is a forum selection clause

Answer 83

Parties agreeing to convey personal jurisdiction upon specific forum in which to adjudicate their dispute

Question 84

are forum selection clause enforceable

Answer 84

1. Fully enforceable absent a showing that enforcement of the provision would be unreasonable and unjust.
2. Forum selection clause is a procedural issue that is to be determined in accordance with the law of the forum state rather than the law designated in the choice of law provision.

Question 85

If trial is bifurcated to determine validity of prenup and court finds the prenup INVALID - can you appeal

Answer 85

Yes - you can appeal the non final order

Question 86

If trial is bifurcated to determine validity of prenup and court finds the prenup VALID - can you appeal

Answer 86

NO - you have to wait until the end to appeal the final order

Question 87

Are arbitration clauses enforceable in family

Answer 87

Yes if it doesn’t involve custody, visitation or CS

Question 88

If prenup requires arbitration, when can the demand be made

Answer 88

Not until validity is determined

Question 89

Parties were divorced and husband received the deferred compensation fund under the agreement, without stating anything else. When husband died, he still had wife listed as the beneficiary back from when they were married. Husband’s daughter claimed the proceeds from the fund did not belong to wife since they divorced. Does daughter prevail?

Answer 89

NO - FL Supreme Court said if the MSA doesn’t specifically say who is or is not to receive the death benefits or specifying who is to be the beneficiary - then whoever is named beneficiary prevails.

Question 90

How is duress defined in the context of prenuptial agreements

Answer 90

A “condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes them to do an act or make a contract not of their own volition.”

Question 91

How does one prove duress?

Answer 91

1) “that the act sought to be set aside was effected involuntarily and thus not as an exercise of free will”; and

(2) “that this condition of mind was caused by some improper and coercive conduct of the opposite side.

In other words, the defending spouse’s external pressure must result in the challenging spouse’s subjective loss of free will at the time the prenuptial agreement is signed.

Question 92

What is the primary difference between duress and coercion

Answer 92

The primary difference between “duress” and “coercion” is the level of compulsion exerted by the compelling party.

While “duress” generally occurs by means of actual physical force or threatened physical force to one’s person or by threats to one’s property or reputation,

Coercion” occurs where the defending spouse, through undue influence or moral or economic force, compels the challenging spouse to sign a prenuptial agreement under circumstances which, from a subjective viewpoint, evidence that the challenging spouse did not act of his or her own free will.

Question 93

What is sufficient consideration for a postnuptial agreement

Answer 93

Mutual promises related to various rights and/or disposing of marital property

Question 94

Do marital and postnups HAVE to be in writing?

Answer 94

If an agreement can be performed in less than a year, no statute of frauds considerations.

Question 95

If a party is seeking to prove and oral agreement establishes assent of opposing party, what must it prove

Answer 95

1. Meeting of the minds
2. Clear and unequivocal consent to the agreement

Question 96

How is duress defined

Answer 96

As being a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him or her to do an act or make a contract not of his or her own volition.
Bates v. Bates, (Fla. 3d DCA 2021

Question 97

How is coercion defined

Answer 97

Where the defending spouse, through undue influence or moral or economic force, compels the challenging spouse, to sign a prenuptial agreement under circumstances which, from a subjective viewpoint, evidence that the
challenging spouse did not act of his or her own free will

Question 98

What is overreaching

Answer 98

Occurs not solely when an agreement is one-sided or unfair, but when an agreement resulted from an inequality of bargaining power or other circumstances such that there was no meaningful choice on the part of the
disadvantaged party.

Question 99

What is the standard to modify alimony

Answer 99

DEPENDS ON THE DISTRICT
3RD & 4TH - SAME STANDARD WHETHER ORDERED BY COURT OR BY AGREEMENT

-2ND - IF ALIMONY BY AGREEMENT, EXCEPTIONALLY HEAVY BURDEN ON MOVANT

NOT RESOLVED BY FL SUPREME COURT YET