A prenuptial agreement — a “prenup” — is a written contract entered into before marriage that governs how assets, debts, and spousal support will be handled if the marriage ends in divorce or one spouse dies. Done right, a prenup is a planning document, not a sign of distrust. It lets both spouses enter the marriage with a clear, shared understanding of their financial arrangement and can spare families substantial expense and conflict down the road.
Who Should Consider a Prenup?
Prenups are especially valuable when:
- One or both spouses own significant premarital assets
- One spouse has children from a prior marriage and wants to preserve assets for those children
- One or both spouses own a business or professional practice
- One spouse has (or expects) a significant inheritance
- The spouses have substantially different incomes or earning potential
- Either spouse has significant premarital debt
- The couple wants certainty about alimony in advance
- One or both spouses have been divorced before and want predictability this time
What a Prenup Can — and Cannot — Do
Florida's Uniform Premarital Agreement Act (§61.079) authorizes prenups to address:
- Rights and obligations in property each party owns
- The right to buy, sell, use, transfer, or otherwise manage property
- Division of property on separation, divorce, or death
- Modification or elimination of spousal support (alimony)
- Making a will, trust, or other estate arrangement to carry out the agreement
- Ownership of life-insurance policies and death benefits
- Choice of law governing the agreement
A prenup cannot do any of the following:
- Adversely affect a child's right to child support
- Waive or limit rights already vested in a child
- Include any provision in violation of public policy or criminal law
What Makes a Prenup Enforceable
Florida courts enforce prenuptial agreements, but not blindly. To survive a challenge, a prenup generally must satisfy all of the following:
- In writing and signed. Oral prenuptial agreements are not enforceable.
- Voluntary. Neither party can be coerced. Signing the prenup the night before the wedding, with the disadvantaged spouse having no time or ability to consult counsel, is one of the most common grounds for invalidation.
- Full financial disclosure. Each party must disclose all assets, debts, and income. A schedule of assets and liabilities is typically attached as an exhibit.
- Independent counsel. Each party should have their own attorney. A waiver of independent counsel is possible but is one of the first things a court scrutinizes if the agreement is challenged later.
- Not unconscionable. The agreement cannot be so one-sided that no reasonable person would have entered into it.
- Substantive fairness.While Florida does not require a prenup to be “fair” in the sense of mirroring what a court would order, it must not be the product of fraud, duress, coercion, or overreaching.
Timing Matters
The single most effective way to strengthen a prenup is to draft and sign it well before the wedding. Thirty days minimum is a good benchmark. Ninety days or more is better. Signing close to the wedding creates a presumption of duress that opposing counsel will exploit if the marriage ends.
Postnuptial Agreements
A postnuptial agreement is the same kind of contract signed afterthe marriage has started. Postnups address similar issues but are subject to heightened scrutiny in Florida because the parties are no longer operating at arm's length. They are valuable when circumstances change — a new business, a significant inheritance, a one-spouse windfall — and the couple wants to memorialize a new arrangement going forward.
Enforcement in Divorce
When a couple with a prenup later divorces, the first question the court addresses is enforceability. A well-drafted prenup typically stands; a rushed or one-sided prenup often falls apart. If the prenup is enforced, it replaces Florida's default rules on equitable distribution and alimony.
How I Can Help
Whether you are drafting your first prenup, revising an old one, negotiating as the receiving spouse, or challenging a prenup in divorce, I have over 25 years of Florida family-law experience to draw on. Call 904-858-4334 or contact me online.