Las Olas Prenuptial Agreement Attorney

Are Prenuptial Agreements Enforceable in Florida?

Yes. Enforceability in Las Olas turns on a single section of the Florida Statutes and on nothing in the local rules of the Seventeenth Judicial Circuit. Two subsections do the formation work. Section 61.079(3) requires that the agreement be “in writing and signed by both parties” and dispenses with consideration beyond the marriage. Section 61.079(5) provides that the agreement “becomes effective upon marriage of the parties,” which means an engagement that ends before the wedding leaves nothing to enforce.

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

It falls on the challenger, not on the spouse relying on the document. Under § 61.079(7)(a) an agreement is unenforceable only where “the party against whom enforcement is sought proves” one of the following:

1. That the party “did not execute the agreement voluntarily” (§ 61.079(7)(a)1.);
2. That the agreement “was the product of fraud, duress, coercion, or overreaching” (§ 61.079(7)(a)2.); or
3. That the agreement “was unconscionable when it was executed” and, before signing, that party was not provided “a fair and reasonable disclosure of the property or financial obligations of the other party,” did not “voluntarily and expressly waive, in writing,” the right to that disclosure, and did not have and could not reasonably have had adequate knowledge of the other party’s property or financial obligations (§ 61.079(7)(a)3.a.–c.).

Note the structure of the third ground: subparagraphs a., b., and c. of § 61.079(7)(a)3. are joined by “and.” A challenger who received a fair disclosure fails the test even if the bargain looks lopsided. The unconscionability question is for the judge. Section 61.079(7)(c) states that it “shall be decided by the court as a matter of law.”

Section 61.079(7)(b) sets an outer limit on support waivers: if the waiver would push a spouse onto public assistance, the court may order support “notwithstanding the terms of the agreement.” Under § 61.079(9), a limitations period on a claim arising from the agreement does not run during the marriage, but equitable defenses still apply.

One line in § 61.079(2)(a) does a lot of work — it confines the statute to agreements made in contemplation of marriage. Everything signed later is tested under Casto v. Casto, 508 So. 2d 330 (Fla. 1987). The official text of the statute is available from the Florida Legislature at leg.state.fl.us.

Does a Florida Prenup Have to Be Notarized?

No — neither notarization nor witnesses are required by § 61.079(3). Some Las Olas couples still notarize, and some sign in front of witnesses, purely to make the execution harder to attack. Under § 61.079(6), however, any later amendment or revocation must be in writing and signed by both parties.

What a Las Olas Prenup Can and Cannot Cover

A Florida prenuptial agreement can address property, spousal support and the treatment of separate assets, but it cannot predetermine child support or custody. Under Fla. Stat. § 61.13, those questions are decided by the best interests of the child at the time they arise.

What it cannot do is fix a child’s support or a parenting schedule in advance. Those issues remain with the court under the best-interests standard in Fla. Stat. § 61.13.

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

The permitted subject matter is enumerated. Under § 61.079(4)(a), parties to a premarital agreement “may contract with respect to” eight categories:

• the rights and obligations of each party in property “whenever and wherever acquired or located” (§ 61.079(4)(a)1.);
• the right to buy, sell, lease, encumber, dispose of, or otherwise manage and control property (§ 61.079(4)(a)2.);
• the disposition of property on separation, dissolution, or death (§ 61.079(4)(a)3.);
• “the establishment, modification, waiver, or elimination of spousal support” (§ 61.079(4)(a)4.);
• the making of a will, trust, or other arrangement to carry out the agreement (§ 61.079(4)(a)5.);
• ownership and disposition of life insurance death benefits (§ 61.079(4)(a)6.);
• the choice of law governing construction of the agreement (§ 61.079(4)(a)7.); and
• “any other matter” not violating public policy or a criminal statute (§ 61.079(4)(a)8.).

A Las Olas couple can provide that a canal-front residence bought before the wedding stays separate, and that dock and seawall work paid from marital funds is reimbursed rather than converting the property. Section 61.079(2)(b) is the sleeper provision: property includes interests that are “present or future, legal or equitable, vested or contingent” and expressly includes “income and earnings, both active and passive.” A Las Olas agreement can therefore reach things the couple does not yet own.

The equitable distribution scheme in § 61.075 is what an agreement displaces. Section 61.075(6)(b) protects pre-marriage, gifted, and inherited property; § 61.075(6)(a)1.b. carves out any enhancement traceable to marital effort or marital funds; and Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), addresses passive appreciation on a mortgaged nonmarital asset.

A support clause is often the most valuable term. Section 61.079(4)(a)4. authorizes establishing, modifying, waiving, or eliminating spousal support, displacing the durational limits and calculations of § 61.08 as amended in 2023. Choice of law under § 61.079(4)(a)7. pairs naturally with § 61.052(5), which lets a court enforce an antenuptial agreement to arbitrate under the law and tradition the parties choose.

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

The statute carves out one subject entirely. Per § 61.079(4)(b): “The right of a child to support may not be adversely affected by a premarital agreement.” A clause purporting to cap or waive child support has no effect. The number comes from the § 61.30 guidelines and is recalculated on the facts in front of the court.

Parenting decisions stay with the court. Section 61.13(2)(c), as amended effective 1 July 2023, presumes equal time-sharing is in the child’s best interests; a contract signed years earlier does not displace it.

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.”