blogger visitor

Friday, December 20, 2013


A recent appellate court decision supporting a challenge to a prenuptial agreement addresses two interesting concepts.

The divorce court recognized that a prenuptial agreement was voidable by the wife due to coercion at the time of signing. Since the wife had learned from her attorney shortly after the marriage that the agreement could be voidable, the divorce court went on to rule that by the time of divorce six years later, the concepts of ratification and laches (i.e., inequitable delay) prevented the wife from making a challenge at the time of divorce. Thus, the court in effect was requiring the wife to bring a challenge to the prenuptial agreement during marriage, instead of waiting until divorce.

The appellate court reversed the divorce court, and allowed the wife to challenge the prenuptial agreement. The appellate court could locate no authority inside or outside of Florida that requires a spouse to challenge a marital agreement during the term of the marriage, since forcing spouses to bring an action during marriage is just bad policy. More particularly, the court provided:

The parties concede that no case in Florida, nor any case in any other jurisdiction, has held that the equitable defenses of ratification and laches apply to validate a voidable prenuptial agreement on the basis that the disadvantaged spouse did not take some form of legal action during the parties' intact marriage to challenge the agreement. Other jurisdictions have declined to apply ratification and laches because it would be contrary to public policy to force a spouse who wanted to challenge the enforceability of a prenuptial agreement to do so prior to the dissolution of the marriage by death or divorce. See In re Estate of Hollett, 834 A.2d 348, 353 (N.H. 2003) (declining to consider “the wife's delay in challenging the agreement as substantive evidence of the agreement's voluntariness or ratification”); In re Flannery's Estate, 173 A. 303, 304 (Pa. 1934) (holding that laches did not bar a wife from challenging the prenuptial agreement during marriage and noting that in litigation between spouses “presumptions or estoppels by lapse of time, ordinarily, do not affect the rights of the wife”); Baker v. Baker, 142 S.W.2d 737, 748 (Tenn. Ct. App. 1940) (explaining that it would go against public policy to require a spouse to challenge a prenuptial agreement during marriage); Kellar v. Estate of Kellar, 291 P.3d 906, 918 (Wash. Ct. App. 2012) (refusing to apply the doctrines of ratification and laches because “considering a wife's delay in challenging a prenuptial agreement as evidence of ratification would penalize the wife for choosing not to disrupt her marriage”) review denied, 312 P.3d 652 (Wash. 2013).

The second interesting aspect of the case was the lesson it gives in how NOT to do a prenuptial agreement. In preparing these agreements, I am often asked, “How close to the wedding can the prenuptial agreement be signed?” There is no black and white answer to that question – but clearly the night before the wedding presents a big problem. The timetable in this case was:

a. Husband presents first draft to wife one month before the wedding.

b. Wife meets with her attorney 11 days before the wedding. The attorney advises her not to sign the agreement, and says she will speak to the husband’s attorney.

c. Wife does not speak any more with her attorney, but goes out to Las Vegas a few days before the wedding. She picks up her husband at 11 p.m. at the airport, he gives her a revised agreement, and sends her out to find a notary and to sign the agreement which has some changes from the prior version. She finds a notary and signs at 2 a.m. without reading the agreement, and then marries later that day.

Apparently, 2 a.m. on the day of the wedding is a bit too late.

SUSAN LEE FLAHERTY, Appellant, v. JERALD CHARLES FLAHERTY, Appellee. 2nd District. Case No. 2D12-3192. Opinion filed December 20, 2013

No comments: