Bal Harbour Prenuptial Agreement Attorney

Are Prenuptial Agreements Enforceable in Florida?

Yes, and the governing text is short. Fla. Stat. § 61.079 runs to ten subsections and can be read start to finish in about ten minutes. The formal requirements are in § 61.079(3), which provides that a premarital agreement “must be in writing and signed by both parties” and is “enforceable without consideration other than the marriage itself.” Nothing else is required to form it. Section 61.079(5) then supplies the trigger: the agreement “becomes effective upon marriage of the parties.”

Who Has the Burden of Proof Under § 61.079(7)(a)?

The party attacking the agreement bears it. Section 61.079(7)(a) makes an agreement unenforceable where “the party against whom enforcement is sought proves” any one of three grounds:

1. Involuntary execution. Section 61.079(7)(a)1. asks whether the party “did not execute the agreement voluntarily.”
2. Fraud, duress, coercion, or overreaching. Section 61.079(7)(a)2. voids an agreement that “was the product of fraud, duress, coercion, or overreaching.”
3. Unconscionability plus a disclosure failure. Section 61.079(7)(a)3. requires that the agreement “was unconscionable when it was executed” and that the challenger received no “fair and reasonable disclosure,” signed no written waiver of disclosure, and had no adequate knowledge of the other party’s property or financial obligations.

A complete asset schedule can address the disclosure component of § 61.079(7)(a)3., but it does not resolve separate claims involving voluntariness, fraud, duress, coercion, or overreaching. Section 61.079(7)(c) keeps unconscionability away from the fact-finder: “An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.”

Even a fully valid waiver of alimony has a floor. Section 61.079(7)(b) lets the court order support where the waiver would otherwise make a spouse eligible for a public assistance program. Section 61.079(9) tolls any statute of limitations on a claim under the agreement “during the marriage of the parties,” while preserving equitable defenses such as laches and estoppel.

The statute does not reach postnuptial agreements. Section 61.079(2)(a) defines a premarital agreement as one “made in contemplation of marriage and to be effective upon marriage,” so an agreement signed after the wedding is measured instead against Casto v. Casto, 508 So. 2d 330 (Fla. 1987), under which a court may set an agreement aside for fraud, duress, or overreaching. A Bal Harbour couple can read § 61.079 for themselves at leg.state.fl.us, where the Legislature publishes the current text.

Does a Florida Prenup Have to Be Notarized?

No. Florida imposes no notary or witness requirement; § 61.079(3) asks for a writing signed by both parties. A Bal Harbour couple may notarize as a practical safeguard. Note also § 61.079(6): once the couple is married, the agreement can be amended, revoked, or abandoned “only by a written agreement signed by the parties,” and that amendment too is enforceable without consideration.

What a Bal Harbour Prenup Can and Cannot Cover

A Bal Harbour prenup can classify separate versus marital property wherever located, protect a condominium and investment accounts, address a business or professional practice, allocate appreciation and income, select governing law, and set or waive alimony.

One matter no prenup can settle is the children. Child support and time-sharing are reserved to the court, which decides them under the best-interests standard in Fla. Stat. § 61.13, regardless of what the agreement says.

What Can a Prenup Cover Under § 61.079(4)(a)?

Florida does not leave the scope to guesswork. Section 61.079(4)(a) sets out eight subjects a Bal Harbour couple may address:

• Property rights of either or both parties, “whenever and wherever acquired or located” (§ 61.079(4)(a)1.).
• Management and control — buying, selling, leasing, encumbering, or disposing of property (§ 61.079(4)(a)2.).
• Disposition of property “upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event” (§ 61.079(4)(a)3.).
• Spousal support, including its complete elimination (§ 61.079(4)(a)4.).
• Wills, trusts, and other arrangements carrying out the agreement (§ 61.079(4)(a)5.).
• Life insurance death benefits (§ 61.079(4)(a)6.).
• Choice of governing law (§ 61.079(4)(a)7.).
• Any other lawful matter, including personal rights and obligations (§ 61.079(4)(a)8.).

A Bal Harbour couple can record that a pre-marriage condominium and its rental income stay separate, and that mortgage payments made from a joint account create a reimbursement claim rather than a marital interest. Those categories are broad because the defined term is broad. Section 61.079(2)(b) treats property as any interest “present or future, legal or equitable, vested or contingent,” tangible or intangible, “including income and earnings, both active and passive.”

Compare the statutory default. Under § 61.075(6)(b), property owned before the wedding and property received by gift or inheritance is nonmarital; under § 61.075(6)(a)1.b., the enhancement in its value from marital labor or funds is marital. Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), is the leading case on passive appreciation.

Spousal support is contractible under § 61.079(4)(a)4., which permits “the establishment, modification, waiver, or elimination of spousal support.” A waiver displaces the framework in § 61.08 as rewritten in 2023, subject only to the public-assistance override in § 61.079(7)(b). One more provision is easy to miss: § 61.052(5) provides that a court “may enforce an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties.”

What a Prenup Cannot Waive (§ 61.079(4)(b))

Section 61.079(4)(b) is one sentence long and it is absolute: “The right of a child to support may not be adversely affected by a premarital agreement.” Parents cannot contract around § 61.30. The guidelines schedule sets the presumptive amount from both parents’ net incomes and the overnight count in the parenting plan.

The same is true of the parenting schedule. Section 61.13(2)(c) has, since 1 July 2023, started the analysis from a rebuttable presumption of equal time-sharing, applied to the facts as they exist at the time of the case.

There is one further limit on the adult terms. Section 61.079(7)(b) allows a court to order support notwithstanding a waiver where the waiver would leave a spouse eligible for public assistance, and § 61.079(4)(a)8. bars any term that violates “the public policy of this state or a law imposing a criminal penalty.”