PRENUPTIAL AGREEMENTS IN FLORIDA

PRENUPTIAL AGREEMENTS IN FLORIDA

Florida prenuptial (premarital) agreements are governed by Florida Statute §61.079,which outlines both the requirements for enforceability and the scope of what parties may agree to before marriage.

A properly drafted premarital agreement can provide clarity, predictability, andprotection. However, enforceability often turns not just on what the agreement says, but how it was executed.

Key Takeaways About Prenuptia Agreements

• A prenup must be in writing and signed by both parties
• No consideration is required beyond the marriage itself
• Full and fair financial disclosure is critical
• A prenup cannot adversely affect a child’s right to support
• Many challenges focus on how the agreement was signed, not just its terms

1.     Whatis a Prenuptial Agreement (Prenup)?

Apremarital agreement is an agreement between prospective spouses made in contemplation of marriage that becomes effective upon marriage.

Under Florida law, a prenup must:

• Be in writing
• Be signed by both parties

The agreement is enforceable without consideration, meaning the marriage itself is sufficient to support the agreement.

2.    Formal Requirements: How It Must Be Signed

A premarital agreement must be in writing and signed by both parties. If only one party signs, it is not enforceable as a premarital agreement.

While notarization is not required for enforceability under the statute, it is commonly used in practice to avoid future disputes regarding authenticity and execution.

3.    What a Prenup Can Cover

Under Florida law, a premarital agreement may address a wide range of financial and legal issues, including:

Florida law, a premarital agreement can govern various different topics and issues, that the parties to the agreementcan agree to, including but not limited to:

·       Rights and obligations in any property

·       Control, management, and disposition of property

·       Property distribution upon separation, divorce, or death

·       Spousal support (including establishing, modifying, or waiving alimony)

·       Estate planning coordination (wills,trusts, etc.)

·       Life insurance ownership and beneficiary designations

·       Choice of law provisions

·       Any other matters that do not violate public policy or criminal law

4.    What a Prenup Cannot Do In Terms of Minors and Children

A premarital agreement cannot adversely affect a child’s right to support.

For example, a provision stating that “no child support will ever be paid” is not enforceable. Child support is a right that belongs to the child, not the parents, and cannot be waived by agreement.

Similarly, a premarital agreement cannot predetermine issues related to parenting, including time-sharing or parental responsibility. Florida courts decide parenting issues based on the best interests of the child at the time of the case, not based on agreements made before the child is born or before circumstances are known.

5.    Challenginga Premarital Agreement

Apremarital agreement may be unenforceable if:

1. It was not entered into voluntarily, or was the result of fraud, duress, coercion, or overreaching; or
2. It was unconscionable when executed and the challenging party:

a)     Did not receive fair and reasonable financial disclosure,

b)    Did not waive disclosure, and

c)     Did not otherwise have adequate knowledge of the other party’s financial circumstances

How This Comes Up in Real Cases

In practice, these issues most often arise during a divorce. One party will seek to enforce the premarital agreement, while the other may challenge it.

This can create a threshold issue in the case—before the court even addresses equitable distribution or alimony, it may first need to determine whether the premarital agreement is enforceable.

As a result, litigation may focus heavily on:

• The circumstances surrounding execution of the agreement
• The timing of when it was presented and signed
• The extent of financial disclosures
• Whether each party had a meaningful opportunity to review the agreement

Example of a risky prenup:

If one party presents a prenup shortly before the wedding, threatens to cancel the wedding if it is not signed, and discourages the other party from obtaining independent legal counsel, those facts may later be used to support a claim of duress or overreaching.

Even if the agreement is signed, the surrounding circumstances can become the focus of a challenge.

6.    Amendments After Marriage

After marriage, a premarital agreement may only be amended or revoked by a written agreement signed by both parties.

7.    Common Mistakes that Lead to Challenges

Many premarital agreements are challenged not because of what they say, but how they were created. Common issues include:

• Presenting the agreement shortly before the wedding
• Failing to provide full financial disclosure
• Including terms that are heavily one-sided
• Not allowing adequate time for review
• Discouraging or limiting access to independent legal counsel

Avoiding these issues significantly increases the likelihood that an agreement will be enforced.

Practical Takeaway

A strong Florida premarital agreement is:

• Properly executed
• Voluntary
• Transparent in financial disclosures
• Fair in process
• Drafted with enforceability in mind

Practical Reality

Although the statute provides a clear framework, prenup litigation often focuses on the circumstances surrounding execution rather than the language of the agreement itself.

Careful planning, full disclosure, and proper timing are critical to ensuring that a premarital agreement will withstand scrutiny if challenged.

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Disclaimer: This post is for general information, does not constitute legal advice, and does not create an attorney-clientrelationship.

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CONTACT THE EXPERIENCED MARITAL & FAMILY LAW ATTORNEYS AT THE JOSEPHFIRM, P.A.

Attorney, Marck K. Joseph, Esq., BCS, is a Board Certified Marital & Family Law expert and the owner of The Joseph Firm, P.A. With fourteen (14) years of experience in Martial & Family Law, he is uniquely qualified in helping in most types of family cases, including divorce matters.

If you are involved in a family law matter in Florida, consulting with an experienced family law attorney can help you navigate the legal process, our law firm fully understands the challenges of navigating marital and family law issues and we’re always ready to provide the highest-quality legal representation. Whether your case settles outside the courtroom or goes to trial (or final hearing), our attorneys go the extra mile for every client.

Our firm offers free case evaluations to determine whether the firm can assist you with your case, and if we can, a case consultation meeting will be scheduled. The experienced divorce lawyers at Joseph Firm, P.A., are ready to hear your story. We provide smart, aggressive family law representation to clients. To learn more, call (305) 501-0992.