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)
