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Saturday, February 06, 2021

Beware the Last Minute Signing of a Prenuptial Agreement [Florida]

 

Marital attorneys know that upon divorce, spouses who signed a prenuptial agreement will often raise arguments of coercion and duress to void the agreement. Factually, such allegations and arguments may or may not be true, and in either case may be hard to prove or disprove many years after the fact. A good story and sympathetic court can spell doom for the agreement. Therefore, practitioners seeking to enhance the likelihood of an enforceable agreement should manage the objective and verifiable facts that mitigate against coercion and duress so as build defenses against future attack. One of those objective facts that can usually be managed is when the prenuptial agreement is signed – signings the day before or the day of the wedding should be avoided.

A recent Florida case presented various facts that both supported and weakened the agreement. The end result was the voiding of the prenuptial agreement. One of the facts was that the agreement was signed the day before the agreement. We can wonder whether if the agreement had been signed well before that whether the court would have voided the result.

The case also provides a lengthy analysis of the meaning of the terms coercion and duress in context of voiding a prenuptial agreement. It also has an interesting set of facts.

The key facts of the case were:

  • Husband was a divorced 41 year old. Wife turned 18 three days prior to meeting Husband. She had never married and was a virgin when she met him. She was living in Columbia, and was looking for a wealthy American man to marry and to bring her to the U.S. They met on May 29, 2001 through a matchmaking website.
  • The Husband did not speak Spanish and the Wife spoke little English.
  • In June 2001, the parties had sex and became engaged on the same day.
  • The Wife became pregnant and there was an abortion in mid-August.
  • According to Wife, Husband told her the prenuptial agreement was a requirement for her to immigrate to the U.S. However, Wife admitted she would have signed anything because she loved and wanted to marry Husband and because she wanted to immigrate to the U.S.
  • Husband obtained a form prenuptial agreement and modified it to his satisfaction. The parties did not discuss the agreement or negotiate its terms.
  • Wife took the agreement to a Colombian attorney. The attorney provided Wife with a Spanish translation on August 29, 2001. The attorney signed a certification that she was knowledgeable in Florida law and had advised Wife about her rights. She now admits she did not know Florida law and did nothing more than translate the agreement. The Wife claimed that she was in severe pain and distress relating to the abortion on August 29 and August 30. Wife also feared exposure of the premarital sex and abortion to her strict Catholic family.
  • On August 30, 2001, the parties executed English and Spanish versions of the agreement before a notary public. Wife did not read it.
  • The parties married on August 31, 2001.
  • Several days later, the parties went to a previously scheduled appointment at the Colombian embassy to start the Wife's immigration process.
  • Several months later the parties moved to Florida, where Husband resided and owned businesses. They had five children together.
  • In May 2017, Wife filed for divorce.

The trial court invalidated the agreement since it "was the product of duress and coercion."

The court found "duress" relating to the unequal bargaining positions, the pregnancy and abortion, and the risk of exposure of those things to her family.

The court found that Husband's threat of no wedding and no immigration on the day before the signing was "coercion." The court concluded that the Husband exploited the time pressure aspects of the courtship and Wife's "vulnerable  emotional position" to his pecuniary advantage.

The appellate court noted two grounds for invalidating a prenup. The first is where the defending spouse has engaged in "fraud, deceit, duress, coercion, misrepresentation, or overreaching."

The second is when the agreement makes an unfair or unreasonable provision for the challenging spouse, given the parties' relative circumstances. The second ground was inapplicable since this was not what the trial court relied on.

As an aside, this second ground will not apply if there is full and fair disclosure of assets, so it is not an automatic circumstance of voiding a prenuptial agreement. Disclosure is generally not relevant to the first ground – thus, the presence of duress or coercion can void the agreement even with disclosure of financial information. Disclosure was not an issue in the case.

The appellate court noted that duress exists if the signing was effected involuntarily and was thus not an exercise of free will, AND this condition of mind was caused by some improper and coercive conduct of the other side – i.e., the other spouse must bring external pressure bring to bear.

The appellate court noted that coercion is not the same as duress, but there is no Florida case law providing a definition for coercion for these purposes. To distinguish the two and provide a definition, the court borrowed from an Ohio Supreme Court case that held that duress means actual physical force or the threat of same to one's person, property or reputation, with coercion being more broadly defined to include undue influence and other lesser forms of compulsion such as moral or economic force sufficient to overcome the recipient's free will.

The appellate court overruled the trial court and found there was no duress. This was because there was no evidence that the Husband threatened to tell the Wife's family about their circumstances if she did not sign the prenuptial agreement.

The court did sustain the finding of coercion, however. The mere threat of not proceeding with the marriage is not enough for coercion, based on case law cited by the court. Indeed, if that was the case, many more prenuptial agreements would be subject to successful challenge. However, additional acts did raise the level of compulsion into the realm of coercion. These acts included Husband’s representations that the prenuptial agreement was a prerequisite to immigration into the U.S. This, combined with the time pressure aspects and the Wife's vulnerable condition was enough to support a finding of coercion. The court's citation of problematic prenups in the case law where presentation and/or signing occurred shortly before the wedding indicates that this was a key component in its holdings.

Husband does not appear to have had the assistance of counsel in the preparation or signing of the agreement. Knowledgeable counsel can go a long way towards minimizing both actual and the appearance of coercion and duress. As noted, objective actions such as not signing the agreement on the eve of the wedding, and the representation of the other spouse by a Florida attorney with the proper expertise would have gone a long way to defuse the allegations of duress and coercion.

Bates v. Bates, 46 Fla. L. Weekly D287c (3rd DCA, February 3, 2021)

Tuesday, February 02, 2021

New Rules Coming on Brokers and Other Financial Representatives Being Named as a Fiduciary or a Beneficiary

 Securities brokers and other registered representatives often develop close relationships with their clients. Those clients may make provision for them to become a fiduciary or beneficiary in trusts and wills due to these relationships.

For those representatives who are subject to FINRA, new FINRA Rule 3241 becomes effective on February 15, 2021 that generally requires review and approval of such circumstances by member firms so as to avoid conflicts of interest. The new rules can be reviewed here.

Exceptions apply to representatives that are family members of the appointing client. In addition to direct appointments, the rules treat similarly circumstances where the representative directs the appointment of other persons in these roles such as family members of the representative.

Draftspersons should be familiar with these limitations, to assist their clients where they desire to make such appointments.

FINRA Rule 3241. Registered Person Being Named a Customer’s Beneficiary or Holding a Position of Trust for a Customer

Thursday, January 28, 2021

FBAR Reporting to Be Expanded to Include Foreign Accounts Holding Virtual Currency

Presently, for U.S. persons a foreign account holding virtual currency is not a reportable account for purposes of having to file an FBAR.

In a recent announcement FinCEN has advised that it intends to amend the FBAR regulations to include those accounts.

In today's environment, this is about as surprising as the sun coming up this morning.

FinCEN Notice 2020-2