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Pazos Law GroupPrenups · Divorce · Family Law

Enforcing a Prenup or Postnup in a Florida Divorce (Including Agreements Signed in Another State or Country)

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated

You signed a prenuptial or postnuptial agreement years ago, and now a Florida divorce is starting. This page explains what happens to that agreement in the divorce: who has to prove what, what the agreement can and cannot control, and how a Florida court treats agreements signed in New York, another state, or another country.

Quick Answer

Will a Florida court enforce my prenup in a divorce?

Usually, yes. A signed, written premarital agreement is enforceable under Fla. Stat. § 61.079(3), and the spouse who wants out carries the burden: under § 61.079(7)(a) that spouse must prove the agreement was not signed voluntarily, was the product of fraud, duress, coercion, or overreaching, or was unconscionable when signed and all three disclosure failures listed in § 61.079(7)(a)3. occurred. A postnuptial agreement is judged under Casto v. Casto, 508 So. 2d 330 (Fla. 1987), not the statute. No agreement can adversely affect a child’s right to support (§ 61.079(4)(b)). Agreements made elsewhere are generally respected, but not where that would offend Florida public policy (Gustafson v. Jensen, 515 So. 2d 1298 (Fla. 3d DCA 1987)).

Pazos Law Group, a family law firm in Coral Gables serving Miami-Dade, Broward and Palm Beach counties, reviews whether a prenup will hold up in a Florida divorce, including agreements signed abroad such as an Italian separazione dei beni or a Panamanian marital agreement, in English or Spanish: (305) 482-1262.

What Happens to a Prenup When a Florida Divorce Is Filed?

Nothing about the agreement changes because a case is filed. Under § 61.079(5), a premarital agreement “becomes effective upon marriage of the parties,” and § 61.079(1) says the section “applies only to proceedings under the Florida Family Law Rules of Procedure” — which is where a Florida divorce is decided. In practice, the spouse relying on the agreement raises it in the dissolution case, and the court applies it to the issues it covers: property, debts, and spousal support.

Time is less of a problem than people fear. Section 61.079(9) provides that any statute of limitations applicable to a claim for relief under a premarital agreement “is tolled during the marriage of the parties.” The same subsection keeps equitable defenses, including laches and estoppel, available to either party, so a spouse who acted for years as if the agreement applied may have a harder time arguing that it does not.

Who Has to Prove What?

If you are the spouse relying on the agreement

The statute’s formalities are minimal. Section 61.079(3) requires only that the agreement be “in writing and signed by both parties,” and it is “enforceable without consideration other than the marriage itself.” Section 61.079 itself contains no notary or witness requirement, and it does not require that either party had a lawyer. What matters is that you can produce the complete signed agreement with every schedule and exhibit, and any written amendment signed by both spouses after the wedding (§ 61.079(6)).

If you are the spouse challenging it

Section 61.079(7)(a) puts the burden on “the party against whom enforcement is sought.” The grounds are a closed list:

  • Not voluntary — § 61.079(7)(a)1.
  • Fraud, duress, coercion, or overreaching — § 61.079(7)(a)2.
  • Unconscionable when signed, plus all three disclosure failures — no fair and reasonable disclosure, no voluntary and express written waiver of further disclosure, and no adequate knowledge of the other spouse’s property or obligations (§ 61.079(7)(a)3.a.–c.).

Whether an agreement is unconscionable is decided by the judge as a matter of law (§ 61.079(7)(c)). For each ground in detail, see Can I Get Out of a Prenup I Signed in Florida?

What the Agreement Cannot Control in the Divorce

  • Child support. § 61.079(4)(b): “The right of a child to support may not be adversely affected by a premarital agreement.” Support is set under the guidelines in § 61.30.
  • Parenting and time-sharing. These are decided under § 61.13 on the child’s best interests when the issue arises; parents cannot bind the court in advance.
  • A spouse left on public assistance. If an alimony waiver would make one spouse eligible for public assistance at separation or dissolution, § 61.079(7)(b) lets the court require support “to the extent necessary to avoid that eligibility” — a floor, not a full alimony award.

What If It Is a Postnuptial Agreement?

Section 61.079 applies only to agreements made “in contemplation of marriage and to be effective upon marriage” (§ 61.079(2)(a)). An agreement signed after the wedding is governed by Florida case law, principally Casto v. Casto, 508 So. 2d 330 (Fla. 1987). Under Casto, a spouse can challenge a marital agreement on either of two grounds:

  • fraud, deceit, duress, coercion, misrepresentation, or overreaching; or
  • the agreement is unfair or unreasonable given the parties’ circumstances — which raises a presumption of concealment and shifts the burden to the spouse defending it to show full and fair disclosure, or that the challenging spouse had a general knowledge of the marital property.

That burden shift is why the disclosure exchanged when a postnup was signed often decides the case. More on postnups: Florida Postnuptial Agreement Attorney.

A Prenup Signed in New York or Another State

A prenup validly made under another state’s law is a contract, and Florida courts routinely give effect to contracts validly made under sister-state law. Many of these agreements select their own governing law — the same device Florida authorizes in § 61.079(4)(a)7., “the choice of law governing the construction of the agreement” — and a Florida court will ordinarily honor a reasonable choice of another state’s law for construing the agreement. Two practical points:

  • The divorce itself is still a Florida proceeding. Florida procedure applies, and Florida’s rules on child support and time-sharing apply regardless of the agreement.
  • Read the clause you actually have. A clause choosing New York law for construction is not the same as a clause choosing New York courts. What it covers matters.

Related: Florida Prenups Signed in Another State: Choice of Law.

New York: what made the agreement valid there

New York’s rule is in Domestic Relations Law § 236(B)(3): an agreement made before or during the marriage “shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (DRL § 236(B)(3)). The acknowledgment — the notary-style certificate attached to each signature — is the first thing to check on a New York prenup brought to a Florida divorce, together with the governing-law clause. Nadia Pazos is admitted to practice in New York and Florida, so the agreement can be read against both states’ requirements. Pazos Law Group, a family law firm in Coral Gables serving Miami-Dade, Broward and Palm Beach counties, reviews New York prenups for either spouse in a Florida divorce, in English or Spanish: (305) 482-1262.

An Agreement or Property Regime From Another Country

Florida analyzes foreign agreements and marital-property elections through comity: courtesy to the laws of other jurisdictions, extended unless doing so would offend Florida public policy. In Gustafson v. Jensen, 515 So. 2d 1298 (Fla. 3d DCA 1987), the Third District declined to give effect to a Danish separate-property arrangement where the fairness and disclosure Florida requires were not shown. A one-line separation-of-property election in a marriage record, with no disclosure and no counsel, is the profile that case warns about.

For a foreign agreement, the court will want the original or a certified copy, a certified English translation, and proof of how it was executed. Country-specific notes (Italy, Colombia, Brazil, Spain and others) are on our international prenup page.

Panama: capitulaciones matrimoniales and a postnup signed in Panama

Panama’s Family Code (Código de la Familia, Ley 3 de 1994) lets spouses choose their marital property regime by capitulaciones matrimoniales (art. 81). Without them, or if they are ineffective, the regime is participación en las ganancias (art. 82): each spouse keeps, manages and may freely dispose of their own property (art. 103) and shares in the gains the other obtained while the regime was in force (art. 102). Panama’s Supreme Court (Pleno, 29 April 2015) declared articles 81 and 82 not unconstitutional.

  • Before or after the wedding, by public deed. Capitulaciones may be signed before or after the marriage and, to be valid, must be in an escritura pública (art. 87); where there is no notary and the property contributed is under B/.5,000, they may instead be executed before the secretary of the municipal council and two witnesses (art. 88) (Código de la Familia, Ley 3 de 1994, Órgano Judicial). Changes require the same formalities (art. 90).
  • Registered. They are noted on the marriage record in the Civil Registry, and in the Public Registry if they affect real property (art. 91).
  • Limits. Any term contrary to law or good customs, or limiting the spouses’ equal rights, is void (art. 92). For a couple married in Panama without capitulaciones, the property regime follows the law of the place of the marriage (art. 10).

In a Florida divorce, a postnup signed in Panama is an agreement made after the wedding, so Florida looks at it through comity and the Casto standard for marital agreements, subject to Florida public policy (Gustafson v. Jensen, 515 So. 2d 1298, 1300 (Fla. 3d DCA 1987): foreign law is enforced “only to the extent called for under principles of comity,” and comity is not recognized where it “would frustrate an established public policy of this state”). Bring a certified copy of the escritura pública, the registry annotation, and a certified English translation. Pazos Law Group, a family law firm in Coral Gables serving Miami-Dade, Broward and Palm Beach counties, reviews postnuptial agreements and capitulaciones signed in Panama for Florida divorces, in English or Spanish: (305) 482-1262.

Italy: separazione dei beni in a Florida divorce

Under Italy’s Codice civile, the default property regime for spouses is the comunione dei beni unless they agree otherwise (art. 159). Under separazione dei beni, each spouse “keeps exclusive ownership of the property acquired during the marriage” (art. 215). Spouses choose it either by a convenzione matrimoniale, which must be made by atto pubblico on pain of nullity, or simply by declaring the choice in the marriage record; it binds third parties only once annotated in the margin of the marriage record (art. 162).

  • What a Florida court sees. A separazione chosen at the wedding is often a single declaration in the Italian marriage record, not a negotiated contract with financial disclosure. Florida may give a foreign marital-property regime effect through comity, subject to Florida public policy (Gustafson v. Jensen, 515 So. 2d 1298, 1300 (Fla. 3d DCA 1987): foreign law is enforced “only to the extent called for under principles of comity,” and comity is not recognized where it “would frustrate an established public policy of this state”).
  • What art. 215 does not cover. It speaks to ownership of property. Spousal support and rights at death are not addressed by it, so in a Florida divorce they are decided under Florida law (§ 61.08 for alimony) unless a valid agreement covers them.
  • Bring: a certified extract of the Italian marriage record showing the annotation, any notarial convenzione, and certified English translations.

Divorce Rights and Death Rights Are Separate

This page is about divorce. Waivers of a surviving spouse’s rights — elective share, homestead, exempt property — are governed by § 732.702, and § 61.079(10) confirms the premarital agreement statute does not alter those formalities. An agreement can be enforceable in a divorce and still be tested separately if a spouse dies.

What to Bring to a First Consultation

  • The complete signed agreement, with every schedule, exhibit, and financial disclosure attached when it was signed.
  • Any amendment, restatement, or revocation signed after the wedding (§ 61.079(6)).
  • The dates it was first sent, signed, and the wedding date, and whether each side had a lawyer.
  • For a foreign agreement: a certified copy, a certified English translation, and the marriage record if a property regime was elected there.
  • A short list of what has changed since: homes, businesses, accounts, children, and where you have lived.

Do You Need a Lawyer to Challenge or Enforce a Prenup?

A prenup is argued in the divorce from two sides: the spouse asking the court to set it aside under § 61.079(7)(a), and the spouse asking the court to enforce it as signed. Either way, the burden of proof, the dates, the financial disclosure and how it was signed decide the outcome, and they are worth reviewing before the petition is filed or answered.

Pazos Law Group, a family law firm in Coral Gables serving Miami-Dade, Broward and Palm Beach counties, reviews a signed prenup for either spouse, the one who wants to challenge it or the one who wants it enforced, and handles the Florida divorce in which that question is decided, in English or Spanish: (305) 482-1262.

If you are the spouse who wants to set the agreement aside, see challenging a Florida prenup under § 61.079(7)(a).

Frequently Asked Questions

Do I have to prove my prenup is fair to enforce it in a Florida divorce?

No. Under Fla. Stat. § 61.079(7)(a), the spouse resisting the agreement must prove one of the statutory grounds. The spouse relying on it needs the complete written agreement signed by both parties (§ 61.079(3)).

Our prenup is from 2008 and says New York law applies. Can it be used in a Florida divorce?

Generally, yes. Florida courts give effect to contracts validly made under another state’s law, and a Florida court will ordinarily honor a reasonable choice-of-law clause for construing the agreement, as § 61.079(4)(a)7. allows. The divorce is still decided under Florida procedure, and child support and time-sharing are still decided under Florida law.

Is it too late to rely on, or challenge, a prenup signed many years ago?

Section 61.079(9) tolls any applicable statute of limitations during the marriage, but it also keeps laches and estoppel available to either party. Long delay, or years of acting as though the agreement applied, can matter.

Can a prenup or postnup decide child support or custody?

No. A premarital agreement cannot adversely affect a child’s right to support (§ 61.079(4)(b)); support follows the § 61.30 guidelines, and time-sharing is decided under § 61.13 on the child’s best interests.

We elected separation of property when we married abroad. Does that count as a prenup in Florida?

It may be treated as a marital-property agreement and considered through comity, but Florida does not give effect to foreign arrangements that offend its public policy, including where the disclosure and fairness Florida requires were not shown (Gustafson v. Jensen, 515 So. 2d 1298 (Fla. 3d DCA 1987)). Bring a certified copy and a certified translation.

Who decides whether the agreement is unconscionable?

The judge. Fla. Stat. § 61.079(7)(c) provides that unconscionability is decided by the court as a matter of law.

My spouse is trying to throw out our prenup in our Florida divorce. How do I enforce it in Miami?

The spouse attacking the agreement carries the burden. Under Fla. Stat. § 61.079(7)(a), a prenup is not enforceable only if that spouse proves it was signed involuntarily, was the product of fraud, duress, coercion or overreaching, or was unconscionable when signed together with the disclosure failures listed in § 61.079(7)(a)3.; unconscionability is decided by the judge (§ 61.079(7)(c)). Keep the signed original, the financial disclosure schedules, and the drafts and emails that show when each side received the agreement. We handle these cases in Miami-Dade from our Coral Gables office.

We signed a prenup in New York and are now divorcing in Florida. Is it still valid?

Usually the question is whether it was valid in New York when signed: in writing, signed by both spouses, and acknowledged like a deed (DRL § 236(B)(3)). Florida courts generally give effect to agreements validly made under another state’s law, and the agreement’s own governing-law clause controls how it is read. Florida rules still govern child support and time-sharing. See New York prenups. Pazos Law Group in Coral Gables reviews New York prenups in Florida divorces; Nadia Pazos is admitted to practice in New York and Florida: (305) 482-1262.

We have a postnup notarized in Panama and now live in Florida. Is it enforceable in a Florida divorce?

It can be. Panama requires capitulaciones matrimoniales signed after the wedding to be in an escritura pública (Family Code art. 87). In a Florida divorce, a postnup is reviewed through comity and the Casto standard for marital agreements, subject to Florida public policy. Bring a certified copy of the escritura, the registry annotation and a certified English translation. See Panama agreements. Pazos Law Group in Coral Gables reviews Panamanian postnups and capitulaciones in Florida divorces, in English or Spanish: (305) 482-1262.

Official Sources & Related Reading

The information on this page is for general informational purposes only and does not constitute legal advice. Reading or sharing this content does not create an attorney-client relationship with Pazos Law Group. Florida law and the application of statutes change over time; please consult a licensed Florida attorney about your specific situation.