Adding teeth to waivers of temporary support, attorneys' fees, and costs in marital agreements.

• Author: Chopin, Christopher

"Freedom is not worth having if it does not include the freedom to make mistakes."

MAHATMA GANDHI

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.

Background

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 postnuptial 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...