PRENUPTIAL AGREEMENTS AND
ATTORNEY’S FEES
By K. Dean Kantaras and J. Bennett Kitterman
Prenuptial agreements are some
of the most common contracts
executed between married couples.
These agreements can define many
elements of the parties’ responsibilities
upon dissolution of the marriage, including
property rights, alimony, and child support.
In Florida, valid prenuptial agreements are
generally enforceable, just the same as any
other valid ordinary contract. In ordinary
contracts, it is commonplace for there to
be a provision awarding attorney’s fees
and costs to the prevailing party. In the
event that there is a lawsuit for breach of
contract, or a suit which challenges the
validity of the contract, the prevailing
party is generally going to be entitled to
recover their attorney’s fees and costs.
These provisions are routed in public
policy and serve to protect and indemnify
contracting parties from frivolous claims.
But do these provisions hold up in a
prenuptial agreement?
In 2005, the Florida Supreme Court
decided the case of Lashkajani v. Lashkajani,
911 So.2d 1154 (Fla. 2005), where the parties’
prenuptial agreement included a provision
for prevailing party attorney’s fees. The
agreement was negotiated over a period of
3 months, with each party having their own
separate attorney to advise them regarding
the agreement. The parties were married
thereafter for about 10 years. The Wife filed
LAARWT
K. Dean Kantaras, Esq.
142 TAMPA BAY MAGAZINE | MARCH/APRIL 2018
“prevailing party clauses have long been
enforceable in ordinary contracts, we find
no reason not to enforce them here.” The
Court affirmed the policy behind these
provisions, stating “prevailing party
clauses protect the agreement itself. Their
purpose is to indemnify the party who
relied on the agreement and constitute a
disincentive to one who may frivolously
challenge it.” Id.
Accordingly, it is beneficial to include a
prevailing party attorney’s fee provision
when drafting a prenuptial agreement. 9
EDITOR’S NOTE: K. Dean Kantaras has been
licensed to practice law in Florida for more
than 24 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 1 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, 34638,
(727) 781-0000 and 1930 East Bay Drive, Largo,
33771, (727) 544-0000, kantaraslaw.com.
for dissolution in 2000. She challenged
the prenuptial agreement as being unfair
and stated that she was coerced into
signing it. The trial court concluded that
the agreement was valid and enforceable.
Both parties sought attorney’s fees and the
Husband based his claim on the prevailing
party fee provision in the agreement. The
Husband was awarded fees pursuant to
this provision. The Wife appealed this
decision.
Ultimately, the Supreme Court held
that prenuptial agreement provisions
awarding attorney’s fees and costs to the
prevailing party in litigation regarding the
validity and enforceability of a prenuptial
agreement are enforceable. In its decision
the Court acknowledged long standing
contract law, stating “provisions in
ordinary contracts awarding attorney’s
fees and costs to the prevailing party are
generally enforced... trial courts do not
have the discretion to decline to enforce
such provisions, even if the challenging
party brings a meritorious claim in good
faith.” The Court further explained that