L AW
THE ANTENUPTIAL AGREEMENT
By K. Dean Kantaras and Jennifer H. Cavill
ONE OF THE MANY QUESTIONS
couples face prior to marriage is
whether they should enter into a
prenuptial agreement or antenuptial
agreement to protect certain premarital
assets and address the treatment of any
assets, liabilities and/or income acquired
during the marriage, and the rights and
responsibilities the parties might owe to
one another as a result of their contemplated
marriage, among other things.
The decision of whether to enter into
an antenuptial agreement is a personal
one. Each antenuptial agreement is fact
specific and should be prepared by competent
counsel after exchange of fair and
reasonable disclosure of property or
financial obligations of each party. See
§61.079, Florida Statute, regarding the
enforcement of antenuptial agreements
executed after October 1, 2007. Likewise,
one should not enter into an antenuptial
agreement without seeking advice from
competent counsel regarding the terms
and consequences of the proposed
antenuptial agreement.
Although it is generally believed that
you can waive your rights to any and all
assets, liabilities, and responsibilities in
an antenuptial agreement, there are a few
things that cannot be waived. First, the
parties cannot waive the duty to support
a spouse prior to the entry of the Final
Judgment of Dissolution of Marriage.
Such a waiver is against public policy.
See Khan v. Khan, 79 So.3d 99 (Fla. 4th
DCA 2012) and Lashkajani v. Lashkajani,
911 So.2d 1154 (Fla. 2005).
Similarly, the court in Khan relied onthe
Florida Supreme Court Case of Belcher
v. Belcher, 271 So.2d 7 (Fla. 1972) which
held “pending dissolution of marriage,
public policy and the statutory obligation
of support permits the award of temporary
attorney’s fees to a spouse even
where an agreement provides that the
parties will each pay their own attorney’s
fees or that the prevailing party is entitled
to fees in any litigation over the validity
of the agreement”.
ment. Such qualified plans are defined
under the Internal Revenue Code. Waivers
of survivor benefits from qualified
plans executed prior to marriage are not
enforceable since the party executing
the waiver has not acquired any rights to
the qualified retirement plan prior to
the marriage. Such waiver is only valid
and enforceable after the marriage.
Therefore, it is important that any
antenuptial agreement attempting to
waive such rights includes a requirement
that the parties shall, at some defined
time after the contemplated marriage
takes place, execute a consent of the
spousal waiver of the Qualified Joint and
Survivor Annuity and consent set forth in
the then existing IRS Code, E.R.I.S.A. and
R.E.A.
9
EDITOR’S NOTE: K. Dean Kantaras has been
licensed to practice law in Florida for over
eighteen years. Mr. Kantaras is the managing
partner of K. Dean Kantaras, P.A., a firm
handling cases in family law and immigration.
Mr. Kantaras is board certified in marital and
family law by the Florida Bar, a distinction
held by less than one percent of all attorneys
licensed to practice in Florida. He is “A” rated
by Martindale-Hubbell, the highest possible
rating. He is a member of the Supreme Court
of the United States, the United States Court
of Appeals for the 11th Circuit and Middle
District, The Florida Bar, and the Clearwater
Bar Association. His offices are located at 3531
Alternate 19, Palm Harbor, 34683, (727) 781-0000
and 1930 East Bay Drive, Largo, 33771,
(727) 544-0000. www.Kantaraslaw.com.
Jennifer Cavill, Esq. is an Associate Attorney
at the firm. She is a member of the Florida Bar,
the United States District Court-Middle
District of Florida, Clearwater Bar and St.
Petersburg Bar Associations and Canakaris
Inn of Court.
K. Dean Kantaras, Esq.
However, prevailing party provisions
in an antenuptial agreement are enforceable.
Therefore, while one spouse may
be required to pay the other temporary
attorney’s fees during the pendency of the
dissolution of marriage case, the prevailing
party provision of the antenuptial
agreement may still be enforceable and
the prevailing party may be entitled to a
fee award at the conclusion of the matter.
Furthermore, parents cannot contract
away the child’s right to child support
fromthe parent. See Budnick v. Silverman,
805 So. 2d 1112, 1113 (Fla. 4th DCA 2002).
The Court also has discretion to reject a
proposed timesharing schedule if the
Court finds that such schedule is not in
the child’s best interest.
Aside from the rights addressed above,
certain rights to retirement benefits
cannot be waived prior to marriage. The
Employee Retirement Income Security
Act of 1974 (E.R.I.S.A.) and the Retirement
Equity Act of 1974 (R.E.A.) provide a
surviving spouse benefits to a qualified
retirement plan in which a deceased
spouse participated, even if the death
occurs prior to the participant’s retire-
124 TAMPA BAY MAGAZINE JANUARY/FEBRUARY 2015