North Miami Prenuptial Agreement Attorney

Are Prenuptial Agreements Enforceable in Florida?

Yes. Since the Legislature adopted the Uniform Premarital Agreement Act in 2007, one statute has answered the question for every county in the state, including Miami-Dade. Section 61.079(3) sets the bar: a writing, signed by both parties, enforceable “without consideration other than the marriage itself.” Section 61.079(5) adds that the agreement “becomes effective upon marriage of the parties.” Section 61.079(1) limits the statute to proceedings under the Florida Family Law Rules of Procedure.

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

The spouse resisting the agreement carries it. Section 61.079(7)(a) provides that a premarital agreement “is not enforceable” if “the party against whom enforcement is sought proves” one of three things:

1. Involuntary signing — § 61.079(7)(a)1. turns on whether the party “did not execute the agreement voluntarily.”
2. Improper conduct — § 61.079(7)(a)2. covers an agreement that “was the product of fraud, duress, coercion, or overreaching.”
3. An unconscionable bargain struck in the dark — § 61.079(7)(a)3. applies only where the agreement “was unconscionable when it was executed” and the challenger was not given a fair and reasonable disclosure, did not waive disclosure in writing, and did not otherwise have 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. 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.”

The statute keeps one safety valve: § 61.079(7)(b) allows a court to require support despite the agreement where the waiver would leave a spouse eligible for public assistance. Time limits are suspended while the marriage lasts: § 61.079(9) tolls any applicable statute of limitations, though laches and estoppel remain available.

A North Miami couple already married is outside § 61.079 entirely. Section 61.079(2)(a) limits the Act to agreements made in contemplation of marriage; postnuptial agreements are governed by Casto v. Casto, 508 So. 2d 330 (Fla. 1987), which permits a court to set an agreement aside for fraud, duress, or overreaching. The Legislature publishes the current version of § 61.079 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 North Miami 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 North Miami Prenup Can and Cannot Cover

A North Miami prenup can separate marital from non-marital property, keep a home and a small business on one side of the line, assign pre-marital debt to the person who owes it, preserve resources for children from an earlier relationship, direct how assets pass on divorce or death, and set or waive alimony.

One line it cannot cross is children. Child support and the parenting schedule cannot be decided ahead of time; a judge settles both at the relevant time under the best-interests test in Fla. Stat. § 61.13.

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

Under § 61.079(4)(a) the parties may contract with respect to eight things, the last of which is deliberately open-ended:

• 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 North Miami couple can state that a pre-marriage savings account stays separate even after it is used to pay closing costs on a home bought during the marriage, with the contribution repaid first. Because § 61.079(2)(b) defines property to include future, contingent, and intangible interests as well as active and passive income, the eight subjects above cover nearly everything a North Miami couple would want to settle.

Without an agreement, the default rules apply. Fla. Stat. § 61.075 requires the court to classify property before dividing it; § 61.075(6)(b) treats assets acquired before the marriage and property acquired separately by gift or inheritance as nonmarital, while § 61.075(6)(a)1.b. pulls the enhancement in value of a nonmarital asset into the marital estate when it results from marital labor or marital funds. Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), addresses how passive appreciation on a nonmarital property is treated when marital funds pay down the mortgage.

Alimony is squarely within § 61.079(4)(a)4. Agreeing on it in advance is what keeps § 61.08 — substantially rewritten in 2023 — from being litigated later. Section 61.052(5) also allows a North Miami couple to agree to arbitrate: 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))

The limit is stated in a single line. Under § 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.

A prenup also cannot set a parenting plan. Under § 61.13(2)(c), effective 1 July 2023, equal time-sharing is presumed to be in the child’s best interests unless the presumption is rebutted by a preponderance of the evidence.

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.”