by Christopher Chopin
“Freedom is not worth having if it does not include the freedom to make mistakes.”
Florida courts traditionally have upheld the validity of antenuptial and postnuptial agreements and, at the same time, voided provisions in those agreements waiving temporary support and attorneys’ fees and costs. Thus, even where a nuptial agreement has been found to be binding and enforceable, counsel is free to attack its validity and be assured of the right to seek fees and costs for doing so.1 In other words, in Florida a party waiver of temporary attorneys’ fees and costs and temporary support obligations in a prenuptial agreement provides no insulation from future expense. Other states have addressed this issue and have upheld provisions in marital agreements that waive temporary support and attorneys’ fees and costs incurred to litigate the validity of a small part of an otherwise valid agreement. This article considers Florida law on this subject and suggest a viable alternative that would encourage the same public policy and yet not so directly restrict the right to contract.
The importance of the freedom to contract to the public policy of Florida is best stated by Pierce v. Isaac, 134 Fla. 666, 672 (1938), in the holding that “courts are without the power to make contracts for parties, or to rewrite, alter, or change the same when made, but have and possess the power of interpretation according to established rules.”2 Contrary to this ideal, marital settlement agreements, while for the most part enforced like any other contracts, are in fact rewritten when they would either result in a negative impact on a child or seek to waive temporary support and attorneys’ fees and costs in a dissolution action. While there can be no argument with the first proposition, there can be little support for the second.
The prohibition against waivers of temporary support and temporary attorneys’ fees in nuptial agreements, as well as the whole of Florida law on nuptial agreements, began with Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962).3 This case, antiquated in origin and effect, held that while ordinarily the burden of proof of invalidity was on the party, assumed to be the wife, alleging invalidity, an agreement found to be unreasonable or unfair raised a presumption of concealment and shifted the burden of proof.4 In Del Vecchio, the Florida Supreme Court made the existence of a double standard and a selectively employed rule clear:
But in the application of this rule careful consideration of the several factors mentioned above is indicated. If, when the contract is made, the prospective husband was a man of the world and the prospective bride relatively inexperienced then clearly such presumption is indicated. But if, on the other hand, the prospective husband is a commonplace and elderly drab and the prospective bride a worldly-wise and winsome young woman the rule should be applied, if at all, with caution.5
This “worldly wise and winsome” standard for the review of marital agreements suggests a time long gone and not fondly remembered for those who support freedom of contract and would oppose condescending paternalism by a state toward its citizens. At the time Del Vecchio was written, Florida’s public policy recognized the state’s vested interest in the institution of marriage. Agreements facilitating divorce, therefore, were held to be unenforceable. Today, when alternative dispute resolution is a goal of Florida courts, this simply does not fit. In Posner v. Posner, 233 So. 2d 381 (Fla. 1970), the court held that marital agreements dealing with the distribution of property upon death could add to marital tranquility, and thus should no longer be held as void ab initio.6 Thus began a change in Florida’s public policy toward a time, like today, when ease of litigation and insulation against it can also remove problems from marriage, rather than making divorce more likely. However, Florida’s law has not matured as quickly as has its public policy on this issue over the last several decades.
Those in Florida who would contract to avoid extensive litigation in the event of divorce are still hampered by the case of Belcher v. Belcher, 217 So. 2d 7 (1972). The court in Belcher contemplated postnuptial agreements absent divorce and held that:
For temporary support, suit money, and temporary attorneys’ fees, the state remains an interested party and cannot be excluded by contract during this period of continuance of the legal relationship of husband and wife. Contracts are made in legal contemplation of existing, applicable statutes and so it is that marriage contracts and any ante or post-nuptial contracts are entered into subject to then existing law, including the law of this state that makes a husband responsible for the support of his wife while she is married to him.7
This short quote is the sole justification for Florida’s bar on temporary support and temporary attorneys’ fees and cost waivers in marital agreements, and its sole appeal lies in the state’s interest in reducing the amount of public assistance required by spouses left without the ability to support themselves. The idea that the state is an interested party in matters relating to a husband’s support of his wife, out of fear that she would become a public charge, is an offshoot of the antiquated notion that a woman not supported by a man was a woman unsupported.
When Florida’s law on marital agreements was brought into the 21st century in Casto v. Casto, 508 So. 2d 330 (Fla. 1987), the Supreme Court nevertheless neglected to address Belcher’s pronouncement as to the nonwaiveability of temporary attorneys’ fees and costs and temporary support.8 Thus, Belcher continued to control even while Casto contradicted its spirit in holding “the fact that one party to the agreement apparently made a bad bargain is not a sufficient ground, by itself, to vacate or modify a settlement agreement,” and that “if an agreement that is unreasonable is freely entered into, it is enforceable.”9
The Casto case involved a massive restructuring of Florida’s law on marital agreements. No longer did it matter that an agreement was reasonable, as long as it was freely executed with a general knowledge of the other party’s assets. Nevertheless, due to the Supreme Court’s failure to address the temporary attorneys’ fees and temporary support issue raised in Belcher, Casto was only a cosmetic victory for those who would contract to avoid protracted litigation regarding otherwise valid nuptial agreements.
Although Belcher primarily was concerned with separations unconnected to divorce, it nevertheless came to stand for the proposition that no marital agreement could contain an enforceable waiver of temporary fees, suit costs, and support. Some of Casto’s teeth were extracted by this preexisting exception. While parties could contract in advance of or during a marriage to save themselves litigation costs and support costs incident to a later divorce, they could not do so for the period pending entry of a final judgment of divorce. This distinction is one without a difference and does not make sense realistically and financially.
Result of Belcher Anomaly
As a result of the Belcher exception having somehow avoided the change in Florida’s public policy that marked it as anomalous, Florida still holds that a provision in a prenuptial agreement that waives temporary support and/or temporary attorneys’ fees and costs will not be enforced. Consequently, even when a nuptial agreement is valid in all other respects, both parties to a dissolution of marriage can expect to pay fees and costs to argue entitlement and obligations regarding pretrial fees and support.
An award of temporary support and temporary attorneys’ fees and costs is based on the parties’ respective financial positions. This result returns the determination of the validity of a prenuptial agreement and the entry of a final judgment based thereon to the antiquated tests of whether the agreement’s provisions, at least as to temporary awards, are reasonable and fair, rather than, as Casto would have it, whether it was fairly entered into. This defeats the purpose of marital agreements almost entirely. Casto rejects once and for all the idea that a wife must be paternalistically coddled by the state to avoid unduly burdening the welfare rolls. However, that very idea is Belcher’s motivation to hold that temporary attorneys’ fees and support waivers are unenforceable.
This concept is not unique to Florida. New York, with a similar history in its treatment of marital agreements, has found a solution to the problem.
New York Model and General Obligations Law §5-311
New York long ago held that the state had an interest in a dissolution action on behalf of a wife who, without her husband’s support, was in danger of depleting the public coffers with her need for public assistance. Rather than removing from that person the right to contract in the first place, New York’s approach was to provide for review of marital agreements for their conscionability with this risk of becoming a public charge as the actual standard for review. After all, if it is a fear of public charges that drives our unwillingness to allow contract, why should we not merely review contracts for the danger of creation of new welfare recipients?
In the case of Edmonds v. Edmonds, 710 N.Y.S.2d 765, 769 (Onondaga Cty. 2000), for example, the court ruled that
[d]efendant’s application for an award of temporary maintenance must also be denied. Paragraph three of the agreement provides that ‘both parties give up the right to temporary or permanent alimony or maintenance in the event of a separation or divorce.’ It is undisputed that the parties are separated, and defendant does not claim that he is about to become a public charge. Defendant’s contractual waiver of his right to temporary maintenance is valid and enforceable.
Id. at 769.
New York has codified this approach in its General Obligations Law §5-311, which provides that
a husband and wife cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge. An agreement, heretofore or hereafter made between a husband and wife, shall not be considered a contract to alter or dissolve the marriage unless it contains an express provision requiring the dissolution of the marriage or provides for the procurement of grounds of divorce.10
This statute achieves the result intended by the Florida courts, and even expressly provides against contracts dissolving marriage, but without denying spouses the right to contract regarding pretrial support and fees. New York specifically allows parties to waive by contract temporary support and temporary attorneys’ fees, as long as neither party faces the danger of becoming a case for public assistance as a result.
The New York model fits perfectly with Florida’s current law governing marital agreements, as well. Florida law already would define a marital agreement arrived at through overreaching, coercion, fraud, deceit, or the like as unconscionable.11 A statute also making any marital contract in Florida that would require a party to deserve public assistance unconscionable would allow the freedom of contract which Casto seeks and, at the same time, give the protection of the Belcher exception to Florida’s interest in keeping public assistance costs to a minimum.
Under the New York model, parties to a nuptial agreement may waive or set limits on support up to and including a final judgment of divorce, as well as attorneys’ fees and costs for the same time period. As a result, parties to a New York marital agreement can be assured in advance that they will not incur substantial litigation costs or temporary support costs upon filing for a divorce by one party seeking to contest the validity of the nuptial agreement.
In the case of a New York marital agreement, there is no worry that so little support will be available that they will not be able to provide themselves with the basic level of support every human needs. Moreover, New York allows modification of agreements and final judgments based on changes in circumstances just as Florida does. Under New York State’s consolidated laws, the court is allowed to modify child support and spousal support as set in a marital agreement either in the best interests of the child or to prevent a spouse from becoming a public charge.12 As such, the protection inherent in New York’s law against agreements that leave a spouse or child unable to be self-supporting continues even through a change in circumstances.
New York only requires a review of a prenuptial agreement when it is alleged that temporary support and fee awards are insufficient to support a spouse. As such, only under the New York model does a prenuptial or postnuptial agreement provide any protection against excessive costs of litigation and offer the state the added benefit of reducing the ever-present glut in its courtrooms.
Capping Florida’s Exposure
Florida courts are already cognizant that even in the post-Casto age of freedom of marital contract, Belcher serves to wire shut the jaw of any nuptial agreement. For example, even after Casto, Florida courts are bound by Belcher to apply F.S. §61.16 to determine who must pay attorneys’ fees up until and including the entry of a final judgment of dissolution even when a prenuptial agreement has waived such fees.13 As recently as May 29, 2002, in Balazs v. Balazs, 817 So. 2d 1004 (Fla. 4th DCA 2002), the Fourth District Court of Appeal reversed the denial of fees under §61.16 (upon concession of the husband’s counsel) and remanded for further proceedings under Appelbaum v. Appelbaum, 620 So. 2d 1290 (Fla. 4th DCA 1993). That case followed Belcher in refusing to enforce a pretrial fee provision in a nuptial agreement. Judge Farmer, concurring specially, held that, while the issue was not properly raised in that case:
When the issue is properly raised, however, I think it will be necessary to recede from that part of Appelbaum holding that the §61.16 factors should be considered even when a valid nuptial agreement has waived such fees. If a party freely and voluntarily decides to waive all attorney fees in a dissolution of marriage action, I know of no reason why he or she should not be held to the bargain made. After all, Casto does not shrink from holding parties to their bargains waiving property rights and alimony. The purpose of the attorney fee statute in ch. 61 is to enable a party to contest unresolved issues of property rights and alimony. Hence if one can waive rights to property and alimony, surely one can equally waive rights to attorney fees.14
Judge Farmer, in his special concurrence, recognized that Belcher is a historical anomaly still being given the enforcement power it had pre-Casto. He further implied that a waiver of temporary attorneys’ fees in a valid and freely entered prenuptial agreement might be upheld, stating that temporary attorneys’ fees and costs are the same as any award of property and permanent support. He also suggested that it may be held in due course that all attorneys’ fees be waived in a valid prenuptial or postnuptial agreement, contrary to Appelbaum.
Even Casto is Toothless After Discovery Has Begun
In Crupi v. Crupi, 784 So. 2d 611 (Fla. 5th DCA 2001), the Fifth District Court of Appeal ruled that Casto is too stringent a standard to apply to any nuptial agreement entered into after litigation begins, given that the parties are no longer operating at less than arm’s reach in contracting, but have the benefit of court-ordered discovery to make sure that full disclosure is given.15 The Supreme Court of Florida agreed with this conclusion in Macar v. Macar, 803 So. 2d 707 (Fla. 2001), holding that where a wife had entered into a marital settlement agreement which was incorporated into a final judgment and after engaging in extensive discovery, she was not entitled to use the Casto provisions to try to set that agreement aside.16
And so, the trend in responding to this anomaly in the law of Florida is to do away with all possible review of marital agreements. We are on the verge of removing what little protection Casto and Belcher offer that is necessary, and allowing any marital agreement to continue unchecked to organize final settlement of a dissolution. This is overcompensation. Instead of doing away with review of marital agreements, we should change the standard of review to one of conscionability and set that standard in statutory form to coincide with self-supportability.
These problems could be solved, however, without this baby and the bathwater approach if the Florida Legislature would follow New York’s lead and enact a statute disallowing any marital agreement so unconscionable as to allow one party to be in danger of becoming a public charge. This provision would therefore allow any waiver of support not approaching that level of unfairness.
However, if no such statute is enacted and Florida courts continue to limit Casto in response to its failure to address Belcher, the marital contract no longer will be governed by any portion of Florida law and will serve as a complete block to review of even an agreement that was not fairly and legitimately executed. The best example of this is Fernandez v. Fernandez, 710 So. 2d 223 (Fla. 2d DCA 1998), 11 years after Casto, in which the Second District Court of Appeal held that regardless of any agreement to the contrary, the spouse with the greater ability to pay support was always required to do so, until the entry of a final judgment.17
The public policy of Florida is to encourage freedom of contract. The public policy of Florida is also to encourage a swift and speedy resolution to all litigation, and to encourage agreements between the parties to any suit to assist in that end. There can be no argument for a restriction of the right to contract that results in excessive litigation without purpose, and a statute of this type must be enacted.
Filling the Cavity in the Right to Contract
Because Casto failed to address Belcher’s exception, which was grounded in an antiquated, paternalistic approach to protect women, when Casto attempted to allow the freedom of contract to extend to marital contracts it excluded the litigation period during which the contract would be reviewed.
Since Casto, marital agreements in Florida have been unable to resolve issues of temporary support and awards of temporary attorneys’ fees and costs. As such, parties to a marital agreement in Florida can never be insulated against exposure for temporary support, fees, and costs.
Other than a mistaken belief in the weakness of a woman as a party to a marriage for this dichotomy in the law, there exists no current justification for this unequal treatment of waivers of support, attorneys’ fees, and costs on a temporary basis. Florida courts repeatedly have found that justification lacking and have evidenced their intent to fix the problem by reducing Casto’s applicability and drilling away at the anomalous moments in the case law that predate but somehow survive Casto, most notably Belcher.
Were our legislature to follow New York’s lead in attempting to resurrect a fair process of contract from a history of condescension to the woman as spouse and maker of contract, and institute a law whereby no marital agreement could subject the other spouse to a danger of the need for public assistance, the matter would be all but settled, and for the better.
In a system where any right or obligation pursuant to a marriage and dissolution could be contracted for or waived up until the point where one party became eligible for public assistance, both the long-standing public policy to avoid an increase in the number of such parties and the current public policy to allow freedom of contract for parties to a marriage and dissolution could be satisfied. No other method allows the satisfaction of both.
For 22 years New York has operated under this system, and the system has worked efficiently and properly both to reduce the number of divorce cases requiring review and, at the same time, allow freedom of contract for marriage partners in that state. Florida’s legislature should take note of the coming changes in this area of the law and seek to prevent harm to our state’s citizens by codifying this simple principle and the public policies it supports.
Florida’s enactment of such a statute is the proper response to the need to enforce the Casto decision. Only then could marriage partners in Florida freely be allowed to contemplate thoroughly all facets of their relationship, even its end. Only when future partners are ensured that they have the freedom as citizens to make their own mistakes as they would make them, without the state acting to protect us from ourselves, will we truly have the freedom of contract which is guaranteed us, and the ability to write a nuptial agreement safe against attack because voluntarily and fairly executed waivers of support are deemed to be outside what a spouse may contract for.
1 In Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987), Justice Overton made no distinction between prenuptial agreements and postnuptial agreements executed before the filing of a divorce action. This was consistent with the court’s earlier decision in Belcher v. Belcher, 217 So. 2d 7 (Fla. 1972), to apply the requirements of Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962), to postnuptial agreements.
2 In Pierce v. Isaac, 134 Fla. 666, 672 (1938), the Florida Supreme Court held that courts may only interpret contracts, and not rewrite them.
3 In Del Vecchio, 143 So. 2d 17, the Supreme Court set Florida’s standard for review of a nuptial agreement, which included a presumption of concealment upon the showing of a less than reasonable contract, at which point the spouse defending the agreement bore the burden of proving the contract’s validity.
4 Id. at 20, 21.
5 Id. at 20, 21 (emphasis added).
6 Posner v. Posner, 233 So. 2d 381 (Fla. 1970), was the first Florida case to begin to eradicate the idea that nuptial agreements focused on the possibility of divorce were not void per se.
7 Belcher, 217 So. 2d at 8.
8 Casto v. Casto, 508 So. 2d 330 (Fla. 1987), is to this day the benchmark case on the validity of nuptial agreements under Florida law.
9 Id. at 334.
10 N.Y. Gen Oblig. §5-311 (McKinney, WESTLAW through 2002 legislation)
11 Casto, 508 So. 2d at 333.
12 N.Y. Law pt. 6, §§461, 462, 463; see also Matter of Pringle v. Pringle, 283 A.D.2d 966, 967; Merl v. Merl, 67 N.Y.2d 359, 360.
13 Fla. Stat. §61.16 is a discretionary fee award statute which allows the trial judge to award from time to time fees to the party with the least ability to pay them to be paid by the party with the greater ability to do so.
14 Balazs v. Balazs, 817 So. 2d 1004 (Fla. 4th D.C.A. 2002). The case of Appelbaum v. Appelbaum, 620 So. 2d 1290 (Fla. 4th D.C.A. 1993), involved a valid prenuptial agreement which was held to be controlling except that a waiver of attorneys’ fees and costs was deleted and instead fees were determined under the Florida Statutes.
15 In Crupi v. Crupi, 784 So. 2d 611 (Fla. 5th D.C.A. 2001), the Fifth District Court of Appeal held that in cases where a nuptial agreement was entered into after the filing of a divorce action, the parties could be treated as contracting at arm’s length, and not as in a relationship of mutual trust and confidence, given their entitlement to the use of the discovery process. In other words, no claim could be raised with such an agreement that a full and fair disclosure was not made. In Petracca v. Petracca, 706 So. 2d 904 (Fla. 4th D.C.A. 1998), the Fourth District Court of Appeal held that unless a party to a nuptial agreement can show either fraud, coercion, misrepresentation, or duress, or can show a reasonable lack of sufficient knowledge of the parties’ financial resources, there could be no judicial inquiry into the agreement’s fairness.
16 Macar v. Macar, 803 So. 2d 707 (Fla. 2001), held that there could be no argument made as to less than sufficient discovery when a spouse has not only commenced litigation but engaged in extensive discovery.
17 Fernandez v. Fernandez, 710 So. 2d 223 (Fla. 2d D.C.A. 1998), held that any waiver of support which took effect prior to the entry of a final judgment was invalid.
Christopher Chopin is a partner in the firm of Chopin, Chopin & Chopin, West Palm Beach. He received a B.A. from Emory University in 1998 and a J.D. from the University of Miami Law School in 2001.