Built to Hold Up When It Matters Most.

Layers of Protection to Enhance Enforceability and Discourage Challenges

The ultimate value of a prenuptial agreement is its enforceability if challenged — better yet, the reduction of challenges due to their perceived lack of viability. The drafter can enhance enforceability by incorporating multiple layers of protection covering the anticipated and typical avenues of attack. The more layers of protection, the better.

David has spent many years building and developing these protections into his agreements — drawing from experience not only in prenuptial and postnuptial family law, but also in family law litigation, real estate, securities investments, taxes, small business operations, and probate.

Below is a general and partial list of some of these potential layers of protection. In-depth explanations can be provided for each. This may be more information than most people need, but it is here for those who want or need to know the details.

Please feel free to ask any questions here.

The Layers of Protection We Incorporate

1. The involvement of an opposing attorney to assist the other party (fiancé). This attorney will then sign a provision in the agreement stating that they counseled their client with nobody else present and informed them of all applicable laws. Further, the attorney will state that their client understood their discussion, did agree to sign the document, and did not appear to be under duress or undue influence.
2. Having a gap of time between the signing of the agreement and the wedding — or, if too short a gap exists, a statement in the agreement attesting that both parties have been discussing and working on the agreement prior to its being signed.
3. Attaching statements of net worth with lots of descriptive and protective footnotes.
4. Attaching recent income tax returns.
5. Providing that both parties intend to be bound by the agreement even if their financial disclosures are less than perfectly accurate.
6. Providing that the agreement cannot be modified or terminated except by another written agreement signed by both parties with all of the same considerable formalities.
7. Providing that the only enforceable terms are those that are written in the agreement, and that no additional terms verbally made before or after the signing are enforceable.
8. Providing that the laws of the State of Florida shall apply to the interpretation and enforcement of the agreement even if residences change — this is needed because different states have different applicable laws.
9. Providing for “severability” so that if one provision of the agreement is deemed to be unenforceable, the remaining provisions shall remain enforceable.
10. Providing for “bifurcation” of any legal proceeding so that upon any challenge to the agreement, the challenge alone will be considered and ruled upon by the court first, before the remainder of any divorce action is considered.
11. Providing that upon any challenge to the agreement, attorney’s fees shall be awarded to the prevailing party.
12. The signing process is crucial. Included will be the signing or initialing of each page, the use of two witnesses, the use of a notary, and both attorneys also signing the document.

…and there are more.

To discuss the layers of protection that fit your situation, call David Anton today at (813) 443-5249.