Challenging a Florida Prenup Under § 61.079(7)(a)

Q: What if my spouse hid assets when we signed the prenup?

Hiding assets is fraud under § 61.079(7)(a)2. and undermines the disclosure requirement under § 61.079(7)(a)3. The agreement is vulnerable to being set aside.

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated August 2026 · ← All blog posts

A Florida prenup is presumed valid, but it is not bulletproof. Fla. Stat. § 61.079(7)(a) lists three specific grounds on which a court can set one aside — and the burden is always on the spouse who wants out.

Quick Answer

Under Fla. Stat. § 61.079(7)(a), a Florida prenup can be set aside on three grounds: (1) the party did not sign voluntarily, (2) fraud, duress, coercion, or overreaching, or (3) the agreement was unconscionable when signed and the challenging party was not given fair financial disclosure, did not waive disclosure in writing, and did not have adequate independent knowledge of the other’s finances. The burden of proof is on the party attacking the agreement.

The Three Statutory Grounds for Setting Aside a Prenup

Fla. Stat. § 61.079(7)(a) provides three distinct grounds. A court may set aside a premarital agreement if the challenging party proves any one of them:

Ground 1: Involuntary Execution — § 61.079(7)(a)1.

§ 61.079(7)(a)1. provides that a prenup is voidable if “the party did not execute the agreement voluntarily.” Voluntariness is a fact-intensive inquiry. Courts look at the totality of the circumstances, including:

Timing relative to the wedding. Presenting an agreement for the first time hours or days before the ceremony — with guests arriving and deposits paid — is the classic voluntariness problem.
Opportunity to review and consult counsel. A party who had weeks to review the agreement with their own attorney has a much harder time claiming involuntariness.
Power imbalance. A significant disparity in sophistication, language ability, or bargaining power can support a finding that one party felt unable to negotiate or refuse.

“A premarital agreement is not enforceable if the party against whom enforcement is sought proves that the party did not execute the agreement voluntarily.” — Fla. Stat. § 61.079(7)(a)1.

Ground 2: Fraud, Duress, Coercion, or Overreaching — § 61.079(7)(a)2.

§ 61.079(7)(a)2. adds a separate ground: the agreement was the product of “fraud, duress, coercion, or overreaching.” This overlaps with but is distinct from involuntariness:

Fraud: Misrepresenting material facts — such as lying about income, hiding assets, or misrepresenting debts — to induce the other party to sign.
Duress: Threats (explicit or implicit) that leave the other party with no reasonable alternative but to sign. An ultimatum of “sign or the wedding is off” delivered at the last minute, combined with other pressure, can constitute duress.
Coercion: Sustained pressure that overbears a party’s free will, even without a specific threat.
Overreaching: Taking unfair advantage of a party’s vulnerability, lack of sophistication, or trust in the relationship.

Ground 3: Unconscionability + Nondisclosure — § 61.079(7)(a)3.

This is the most complex ground because it requires two elements working together. Under § 61.079(7)(a)3., the challenging party must prove:

The agreement was unconscionable when it was executed (not when the divorce occurs — unconscionability is measured at the time of signing); and
All three of the following: (a) the party was not provided fair and reasonable disclosure of the other party’s property or financial obligations, (b) the party did not voluntarily and expressly waive disclosure in writing, and (c) the party did not have or reasonably could not have had adequate knowledge of the other party’s property or financial obligations.

This means an unconscionable agreement can still be enforced if there was adequate disclosure, a valid written waiver, or independent knowledge of the other party’s finances. Unconscionability alone is not enough.

“An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.” — Fla. Stat. § 61.079(7)(c)

Who Bears the Burden of Proof?

The party challenging the prenup bears the burden on every ground. A prenuptial agreement is presumed valid under Florida law; the spouse who wants it set aside must come forward with evidence. This is a critical distinction: the party who drafted the agreement does not have to prove it is fair. The challenger must prove it is defective.

The Florida Supreme Court confirmed this framework in Casto v. Casto, 508 So. 2d 330 (Fla. 1987), holding that the burden is on the party seeking to set aside the agreement to demonstrate the specific statutory defect.

What Makes a Prenup “Unconscionable”?

Florida does not define unconscionability in § 61.079. Courts apply the general contract-law standard: an agreement is unconscionable if it is so one-sided that it “shocks the conscience” of the court. § 61.079(7)(c) makes unconscionability a question of law for the judge — not a question of fact for a jury.

Important: a bad deal is not the same as an unconscionable deal. One spouse receiving more favorable terms does not make the agreement unconscionable. The imbalance must be extreme, and it must have existed at the time of signing, not at the time of divorce.

The Public-Assistance Safety Valve — § 61.079(7)(b)

Even if a prenup validly waives alimony, § 61.079(7)(b) allows a court to order support if enforcing the waiver would leave a party eligible for public assistance at the time of dissolution. This is a narrow exception — it does not rewrite the agreement, but it prevents the state from bearing the cost of one spouse’s support when the other has the ability to pay.

Frequently Asked Questions

Can a prenup be overturned just because it is unfair?

Not by itself. Under § 61.079(7)(a)3., unconscionability must be combined with the absence of fair financial disclosure, no written waiver of disclosure, and no adequate independent knowledge of the other party's finances. An unfair agreement backed by full disclosure is enforceable.

Does signing a prenup the night before the wedding make it invalid?

Not automatically, but it significantly strengthens a challenge. Last-minute signing supports a claim of involuntary execution under § 61.079(7)(a)1. and may also support a duress claim under § 61.079(7)(a)2.

What if my spouse hid assets when we signed the prenup?

Hiding assets is fraud under § 61.079(7)(a)2. and also undermines the disclosure requirement under § 61.079(7)(a)3. If you can prove your spouse materially misrepresented their finances, the agreement is vulnerable to being set aside.

Can a judge decide a prenup is unconscionable even if both sides had lawyers?

Yes. § 61.079(7)(c) makes unconscionability a question of law for the court. However, having independent counsel weakens the unconscionability argument because it supports the inference that the party understood and voluntarily accepted the terms.

Speak With a Florida Prenuptial Agreement Attorney

Tell us a little about your situation and Nadia Pazos will follow up personally — confidential, bilingual EN/ES. Prefer to call? (305) 482-1262.

★★★★★ 4.6 on Google · 50+ reviews · AV Preeminent® (Martindale-Hubbell) · 20+ years · Hablamos Español

This article is general legal information about Florida law and is not legal advice. Whether a prenuptial or postnuptial agreement is enforceable depends on the specific facts, the parties' disclosures, and the circumstances of signing. Reading this content does not create an attorney-client relationship with Pazos Law Group. Florida law changes over time; please consult a licensed Florida attorney about your situation.