Assets Excluded by Written Agreement: Fla. Stat. § 61.075(6)(b)4 (2026)
Quick Answer
How does a prenup or postnup keep an asset out of a Florida divorce? Through Fla. Stat. § 61.075(6)(b)4., which lists among nonmarital assets “assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities.” Nonmarital assets are not divided in equitable distribution. The two conditions that matter are in the words themselves: the agreement must be valid and written, and an exchanged asset is covered only if it can be traced to the excluded one. Pazos Law Group, a family law firm in Coral Gables serving Miami-Dade, Broward and Palm Beach counties, drafts and reviews prenups and postnups that rely on this subsection, in English or Spanish: (305) 482-1262.
§ 61.075(6)(b)4. — Exact Text
Section 61.075(6)(b) defines “nonmarital assets and liabilities.” Item 4 reads:
“4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities.”
Source: Fla. Stat. § 61.075 (Florida Senate).
Where Item 4 Fits in § 61.075
Florida divides marital assets and liabilities and leaves nonmarital ones with their owner. The statute builds the two lists side by side:
- Marital (§ 61.075(6)(a)1.): assets acquired during the marriage; “the enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds”; and, for nonmarital real property, the mortgage principal paid down with marital funds plus a portion of the passive appreciation.
- Nonmarital (§ 61.075(6)(b)): assets owned before the marriage (item 1); gifts and inheritances from third parties (item 2); income from nonmarital assets unless treated as marital (item 3); and assets excluded by valid written agreement (item 4).
Item 4 is the one the parties control. Items 1 to 3 depend on dates, sources and how money was handled. Item 4 depends on what the couple agreed in writing — which is why a well-drafted agreement can also cover the growth in value that § 61.075(6)(a)1.b. would otherwise make marital.
The Presumption in § 61.075(8)
Under § 61.075(8), assets acquired after the date of marriage “and not specifically established as nonmarital assets or liabilities are presumed to be marital.” The presumption “is overcome by a showing that the assets and liabilities are nonmarital.” A written agreement that names the asset, and schedules that identify it, is the clearest way to make that showing. The same subsection also states that § 61.075 does not “establish community property in this state.”
“Valid Written Agreement”: Prenups and Postnups
The text does not limit item 4 to premarital agreements. It says “valid written agreement of the parties.”
- Prenuptial agreements are tested under § 61.079: they must be “in writing and signed by both parties” (§ 61.079(3)), and are unenforceable if the challenger proves one of the grounds in § 61.079(7)(a).
- Postnuptial agreements are also written agreements of the parties, but § 61.079 defines a premarital agreement as one “made in contemplation of marriage” (§ 61.079(2)(a)), so a postnup’s validity is tested outside that section.
Either way, the word “valid” means a defective agreement excludes nothing. Disclosure, independent counsel and time to review protect the classification as much as the drafting does.
“In Exchange for Such Assets”: Keep It Traceable
Item 4 also covers assets acquired in exchange for excluded ones — selling an excluded condo and buying another, for example. That protection is only as good as the paper trail. Moving sale proceeds through a joint account, or adding marital money to the new purchase, invites an argument that part of the new asset is marital. Agreements commonly say how exchanged and reinvested assets are treated.
Marital-Property Elections Made Abroad
Many Miami couples married under a separate-property regime in another country — for example the Italian separazione dei beni or a capitulaciones agreement in Latin America — and later divorce in Florida. Whether that document is a “valid written agreement of the parties” for item 4 depends on what was actually signed, how, and under which law. Bring the original, any notarial or registry record and a translation; a Florida lawyer can then assess it against § 61.075 and, where relevant, § 61.079.
Frequently Asked Questions
Does a prenup make my business nonmarital in a Florida divorce?
If the agreement is valid and written and excludes the business, § 61.075(6)(b)4. treats it as nonmarital. To also cover growth in value from either spouse’s work, the agreement should say so, because § 61.075(6)(a)1.b. otherwise makes that appreciation marital.
Does a postnuptial agreement count under § 61.075(6)(b)4.?
The subsection says “valid written agreement of the parties” and is not limited to premarital agreements. A postnup’s validity is tested outside § 61.079, which covers agreements made in contemplation of marriage.
What if I sold an excluded asset and bought something else?
Item 4 extends to “assets acquired … in exchange for such assets.” Keep records that trace the proceeds, and avoid mixing them with marital funds.
Is Florida a community property state?
No. § 61.075(8) states that the section does not “establish community property in this state.” Florida uses equitable distribution of marital assets.
Who can help with an agreement that excludes assets?
Pazos Law Group in Coral Gables drafts and reviews prenuptial and postnuptial agreements for Miami-Dade, Broward and Palm Beach clients, in English or Spanish. Call (305) 482-1262, or see Florida prenuptial agreements and Florida postnuptial agreements.