August, 2021 Newsletter
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Chuck Rubin on Bates v. Bates: Beware the Last-Minute Signing of a Prenuptial Agreement
“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 a sympathetic court can spell doom for the agreement. A recent Florida case, Bates v. Bates, presented various facts that both supported and weakened the agreement.”
Chuck Rubin provides members with commentary on Bates v. Bates.
Charles (Chuck) Rubin, a board-certified tax attorney, is managing partner of Gutter Chaves Josepher Rubin Forman Fleisher Miller PA, a tax, trusts and estates boutique law firm situated in Boca Raton, Florida (www.floridatax.com). He is an ACTEC and STEP fellow, and a former adjunct professor at the University of Miami School of Law. Chuck has published numerous treatises, manuals, and articles, including two BNA Tax Management portfolios, and articles in Journal of Taxation, Estate Planning, Tax Management Estates, Gifts and Trusts Journal, and Tax Notes. His most recent publication is Rubin on Florida Homestead, a treatise on all things homestead related under Florida law. He also authors a popular tax blog at www.RubinonTax.blogspot.com, and speaks regularly at professional meetings and conferences, and was named 2015, 2017 and 2019 Attorney of the Year by Best Lawyers in Tax Law for the South Florida metropolitan region.
Here is his commentary:
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 a 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 wedding. 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 a 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.
HOPE THIS HELPS YOU HELP OTHERS MAKE A POSITIVE DIFFERENCE!
LISI Estate Planning Newsletter #2887 (June 7, 2021) at http://www.leimbergservices.com, Copyright 2021 Leimberg Information Services, Inc. (LISI). Reproduction in Any Form or Forwarding to Any Person Prohibited - Without Express Permission. This newsletter is designed to provide accurate and authoritative information regarding the subject matter covered. It is provided with the understanding that LISI is not engaged in rendering legal, accounting, or other professional advice or services. If such advice is required, the services of a competent professional should be sought. Statements of fact or opinion are the responsibility of the authors and do not represent an opinion on the part of the officers or staff of LISI.
Bates v. Bates, 46 Fla. L. Weekly D287c (3rdDCA, February 3, 2021)
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