Boca Raton Prenuptial Agreements: What Makes a Florida Prenup Enforceable

A prenuptial agreement is a written contract between two people who plan to marry, and in Florida it takes effect only when the marriage does. If you are looking into Boca Raton prenuptial agreements, the most useful thing to know is how a court decides whether one can be enforced. That test is set out in Florida Statute § 61.079, and it is the reason a prenup's fairness and the way it was signed matter along with its terms. Our prenuptial and postnuptial agreement practice helps couples understand these agreements before they sign.

Quick Summary:

• A Florida prenup must be in writing and signed by both parties. It needs no payment or other consideration beyond the marriage itself.
• A court will not enforce it if the other party proves it wasn't signed voluntarily or that it came from fraud, duress, coercion or overreaching.
• An agreement that was unconscionable when signed can also be unenforceable if all three statutory disclosure conditions are met: inadequate disclosure, no voluntary and express written waiver, and a lack of adequate financial knowledge as described below.
• A prenup can address property and spousal support, but it can't harm a child's right to support.

If you live in Boca Raton, Delray Beach or elsewhere in Palm Beach County, this guide walks through what a prenup can cover, how a court looks at one and what to bring to a first conversation with a lawyer.

On this page

• What is a prenuptial agreement in Florida?
• What can a Florida prenup cover?
• What can a prenup not do?
• When will a Florida court refuse to enforce a prenup?
• Why does financial disclosure matter?
• What happens without a prenup?
• Can you change a prenup after the wedding?
• Who should consider a prenup in Boca Raton?
• How should you prepare to talk with a lawyer?
• Frequently asked questions about prenuptial agreements in Florida
• Talk With Us About a Prenuptial Agreement
• Cited Sources

What is a prenuptial agreement in Florida?

A prenuptial agreement, also called a premarital agreement, is a contract between prospective spouses that is made in contemplation of marriage and becomes effective on marriage. The definition appears in § 61.079(2); subsection (1) gives the statute its short title, the "Uniform Premarital Agreement Act."

Two formalities apply. The agreement must be in writing and signed by both parties, and it is enforceable without any consideration other than the marriage itself (§ 61.079(3)). In plain terms, nobody has to pay the other person for signing, and a handshake or a verbal promise isn't enough.

What can a Florida prenup cover?

Under § 61.079(4)(a), a prenup can address a wide range of financial and legal topics. The statute lets the parties contract about:

• Each person's rights and obligations in property owned by either or both of them, wherever and whenever it was acquired
• The right to buy, sell, use, transfer, lease, mortgage or otherwise manage and control property
• What happens to property on separation, divorce, death or any other event the parties choose
• Setting, changing, waiving or eliminating spousal support
• Making a will, trust or other arrangement to carry out the agreement
• Ownership of the death benefit from a life insurance policy
• Which state's law governs how the agreement is read
• Any other matter, including personal rights and obligations, that doesn't violate Florida public policy or a criminal law

Section 61.079(5) adds that the agreement becomes effective on the parties' marriage. The statute separately addresses a marriage that is determined to be void in § 61.079(8).

What can a prenup not do?

A prenup can't adversely affect a child's right to support. The statute says so directly in § 61.079(4)(b). Child support is set under Florida's child support guidelines in § 61.30, and parents can't contract that right away in advance.

There is also a safety valve on spousal support. If a prenup waives or reduces support and that leaves one spouse eligible for public assistance at the time of separation or divorce, a court may require the other spouse to provide support to the extent needed to avoid that result (§ 61.079(7)(b)).

When will a Florida court refuse to enforce a prenup?

A court will not enforce a prenup if the person resisting it proves one of the grounds in § 61.079(7)(a). The burden is on that person, not on the person who wants the agreement honored. The grounds are:

• The person did not sign the agreement voluntarily
• The agreement was the product of fraud, duress, coercion or overreaching
• The agreement was unconscionable when it was signed, and before signing the person was not given fair and reasonable disclosure of the other party's property or financial obligations, did not voluntarily and expressly waive in writing the right to disclosure beyond what was provided, and did not have, or reasonably could not have had, adequate knowledge of those finances

Notice that the third ground has two parts. Unfairness alone isn't the test. The statute pairs an unconscionable agreement with a problem in the disclosure process. Whether an agreement is unconscionable is decided by the court as a matter of law (§ 61.079(7)(c)).

Because voluntariness is a question courts can examine, how and when a prenup is signed matters. Starting the conversation early, giving each person time to review the draft and having each person talk with their own lawyer are practical points to raise with an attorney. The statute doesn't set a waiting period, so this is general guidance, not a legal rule.

Why does financial disclosure matter?

Disclosure is one of the elements a court looks at when a prenup is challenged as unconscionable. Under § 61.079(7)(a)3, the challenging person must establish that the agreement was unconscionable when signed and that all three disclosure conditions were present before signing: no fair and reasonable disclosure, no voluntary and express written waiver of disclosure beyond what was provided, and did not have, or reasonably could not have had, adequate knowledge of the other person's property or financial obligations.

For that reason, one practical step to discuss with a lawyer is exchanging a written list of assets, income and obligations before signing. If you own a business, real estate or investment accounts, expect those to be part of the conversation. Our post on postnuptial agreements for business owners in Florida covers protecting a company built during a marriage.

If you'd like to talk through how disclosure would work in your situation, schedule a confidential consultation.

What happens without a prenup?

Without a prenup, Florida's divorce statutes decide how property is divided. Under § 61.075(1), the court sets apart each spouse's nonmarital assets and liabilities, then begins with the premise that marital assets and liabilities should be divided equally, unless there's a justification for an unequal split based on all relevant factors. Those factors include each spouse's contributions to the marriage, the economic circumstances of the parties and the length of the marriage.

A prenup lets two people replace that default with their own agreement. Our page on dividing property in a Florida divorce explains the default rules in more detail. We can't predict how a judge would divide property in your case, with or without an agreement.

Can you change a prenup after the wedding?

Yes, but only in writing. After the marriage, § 61.079(6) says a premarital agreement may be amended, revoked or abandoned only by a written agreement signed by the parties, and that new agreement is enforceable without consideration. Informal changes, such as a spoken understanding, don't count.

If a couple wants an agreement after they're already married, that is a different document. Our guide to choosing between a postnuptial and a prenuptial agreement compares the two.

Who should consider a prenup in Boca Raton?

Anyone with property, a business, a family or financial plans they want to protect or clarify may find a prenup useful, but it isn't right for everyone. Whether to sign one is a personal decision for both people. Situations that often prompt the conversation include:

• One or both people owning a business, professional practice or investments before the marriage
• A second marriage, especially when children from a prior relationship are involved (see our post on prenuptial agreements when remarrying)
• Expected inheritances or family property
• Large differences in income, debt or assets
• A wish to set out how support or property would be handled on divorce or death

A prenup isn't a prediction that a marriage will fail. It's a planning document, and the law gives each person protections if the process was unfair.

How should you prepare to talk with a lawyer?

Bring a clear picture of your finances and your goals, and plan for each person to have their own lawyer. Our Boca Raton divorce attorney page explains how we work with local families. It helps to gather:

• A list of your assets and debts, such as real estate, retirement and investment accounts, business interests and loans
• Recent income information
• Any documents about property you expect to receive, such as a trust or family arrangement
• A list of what you'd like the agreement to address, such as property, support or estate-planning questions
• Information about children from a prior relationship, if any
• Your timeline, including the wedding date, so there's room to review a draft carefully

Section 61.079(10) also notes that the premarital agreement statute doesn't change the rules for agreements between spouses under the probate code, so estate-planning questions may need separate advice.

Frequently asked questions about prenuptial agreements in Florida

Does a prenup have to be notarized in Florida?

Can a prenup waive alimony in Florida?

Can a prenup decide child custody or child support?

Is a prenup invalid if one person had a lawyer and the other didn't?

Is a prenup valid if it's signed shortly before the wedding?

Talk With Us About a Prenuptial Agreement

Every couple's finances and goals are different. Schedule a confidential consultation with Yaffa Family Law Group to talk through what a Florida prenuptial agreement could mean for you.

Disclaimer (general information): This article provides general information about Florida family law and is not legal advice. Reading it does not create an attorney-client relationship. Every case depends on its own facts, and the law can change. Consult a Florida family law attorney about your situation.

Cited Sources

• Florida Statute § 61.079, Premarital agreements (Uniform Premarital Agreement Act)
• Florida Statute § 61.075, Equitable distribution of marital assets and liabilities
• Florida Statute § 61.13, Support of children; parenting and time-sharing; powers of court
• Florida Statute § 61.30, Child support guidelines