Prenuptial & Postnuptial Agreements in Florida

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated August 6, 2026

Florida premarital agreements are governed by Fla. Stat. § 61.079, the state’s Uniform Premarital Agreement Act. Enforceability turns on two things: whether the subject matter was permitted by § 61.079(4), and whether the party resisting the agreement can prove one of the three grounds in § 61.079(7)(a). Postnuptial agreements are outside § 61.079 and are judged under Florida common law.

Section 61.079 was enacted by ch. 2007-171, Laws of Florida. Subsection (1) provides that the section “may be cited as the ‘Uniform Premarital Agreement Act’ and this section applies only to proceedings under the Florida Family Law Rules of Procedure.” Everything below is keyed to that statute and to the equitable-distribution statute it overrides, § 61.075. The full official text is at leg.state.fl.us — Fla. Stat. § 61.079.

Is a prenuptial agreement enforceable in Florida? (§ 61.079(3))

Yes, and the formal requirements are unusually short. § 61.079(3) states in full: “A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.” The statute imposes no notarization requirement, no witness requirement, and no minimum waiting period before the wedding. Timing still matters as evidence — an agreement presented days before a wedding is easier to attack as involuntary under § 61.079(7)(a)1. — but lateness alone is not a statutory defect.

Under § 61.079(5), “[a] premarital agreement becomes effective upon marriage of the parties.” If the marriage never happens there is nothing to enforce. If the marriage is later declared void, § 61.079(8) makes the agreement “enforceable only to the extent necessary to avoid an inequitable result.” After the wedding, § 61.079(6) permits amendment, revocation, or abandonment “only by a written agreement signed by the parties,” again without consideration.

What can a Florida prenup legally cover? (§ 61.079(4)(a))

§ 61.079(4)(a) lists eight permitted subjects. The ones that decide most Florida cases are:

• § 61.079(4)(a)1. — “[t]he rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.”
• § 61.079(4)(a)3. — “[t]he disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.”
• § 61.079(4)(a)4. — “[t]he establishment, modification, waiver, or elimination of spousal support.”
• § 61.079(4)(a)6. and 7. — the life insurance death benefit, and the choice of law governing construction.
• § 61.079(4)(a)8. — any other matter “not in violation of either the public policy of this state or a law imposing a criminal penalty.”

The reach of those clauses depends on how “property” is defined. § 61.079(2)(b) defines it as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.” That last phrase is the operative language for business owners and investors: without it, income thrown off by a separate asset during the marriage is exposed under § 61.075(6)(b)3. if the couple treats it as marital. See our detailed pages on dividing a business in a Florida divorce and dividing retirement accounts in a Florida divorce.

What can a prenup not do in Florida? (§ 61.079(4)(b))

One sentence draws the line. § 61.079(4)(b): “The right of a child to support may not be adversely affected by a premarital agreement.” Child support is set instead under § 61.30, whose subsection (1)(a) provides that the guideline amount “presumptively establishes the amount the trier of fact must order as child support,” and permits a variance of more than 5 percent “only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate.” A contract signed years before a child was born cannot supply that finding.

Time-sharing and parental responsibility are likewise outside the contract. They are decided under § 61.13 — since 1 July 2023, starting from the rebuttable presumption of equal time-sharing in § 61.13(2)(c)1. and measured against the best-interests factors in § 61.13(3). A prenup clause purporting to fix a parenting schedule falls under the public-policy limit in § 61.079(4)(a)8.

How does a prenup change equitable distribution? (§ 61.075(6)(b)4.)

Without an agreement, § 61.075(1) directs that in dividing marital assets and liabilities “the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors,” then lists factors (a) through (j). A prenup works by moving assets out of that pool altogether: § 61.075(6)(b)4. classifies as nonmarital “[a]ssets 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.” The official text is at leg.state.fl.us — Fla. Stat. § 61.075.

What that displaces is worth stating precisely, because these are the rules that apply when there is no agreement:

• § 61.075(6)(a)1.b. makes marital “[t]he 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.”
• § 61.075(6)(a)1.c. captures mortgage principal paid from marital funds plus a share of passive appreciation, computed with a coverture fraction the court “shall apply… unless a party shows circumstances sufficient to establish that application of the formula would be inequitable.” The Florida Supreme Court reached the same result for passive appreciation in Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010).
• § 61.075(6)(a)1.f., added by ch. 2024-237 effective 1 July 2024, sets fair market value as the standard for a closely held business and provides that goodwill “separate and distinct from the continued presence and reputation of the owner spouse… is considered enterprise goodwill, which is a marital asset that must be valued by the court.” That codifies the enterprise-versus-personal goodwill line drawn in Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991).
• § 61.075(6)(a)2. presumes that real property held as tenants by the entireties is marital “whether acquired before or during the marriage,” with the burden on the party claiming otherwise — which is how separate property is most often lost by accident.

Classification is measured as of a fixed date. § 61.075(7) sets the cut-off as “the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage,” while valuation dates are left to the judge as “just and equitable.”

Can a prenup waive alimony under the 2023 alimony statute?

Yes. § 61.079(4)(a)4. expressly permits “[t]he establishment, modification, waiver, or elimination of spousal support.” The statute supplies exactly one safety valve: under § 61.079(7)(b), if the waiver “causes one party to the agreement to be eligible for support under a program of public assistance,” the court “may require the other party to provide support to the extent necessary to avoid that eligibility.”

What is being waived changed substantially in 2023. § 61.08 was rewritten by ch. 2023-315 and, per § 61.08(11), applies “to all initial petitions for dissolution of marriage or support unconnected with dissolution of marriage pending or filed on or after July 1, 2023.” The rewritten § 61.08(1)(a) allows alimony only “in the form or forms of temporary, bridge-the-gap, rehabilitative, or durational alimony” — permanent alimony no longer appears on that list. Bridge-the-gap “may not exceed 2 years” (§ 61.08(6)); rehabilitative “may not exceed 5 years” (§ 61.08(7)(c)); and durational alimony “may not exceed 50 percent of the length of a short-term marriage, 60 percent of the length of a moderate-term marriage, or 75 percent of the length of a long-term marriage” (§ 61.08(8)(b)), against the brackets in § 61.08(5) — short-term under 10 years, moderate-term between 10 and 20 years, long-term 20 years or longer. Official text: leg.state.fl.us — Fla. Stat. § 61.08.

Retirement assets need their own clause. § 61.076(1) provides that “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.” A general waiver of “alimony” does not touch them.

Two further provisions survive a waiver unless the agreement addresses them. § 61.071 lets a party claim “alimony and suit money” while the case is pending and directs that “if the petition is well founded, the court shall allow a reasonable sum therefor.” § 61.14(1)(a) supplies the later modification route, triggered when “the circumstances or the financial ability of either party changes.” A waiver drafted only around final-judgment alimony leaves both doors open.

On what grounds can a Florida court set aside a prenup? (§ 61.079(7)(a))

The burden is on the party resisting enforcement, and the grounds are closed. Under § 61.079(7)(a) an agreement is unenforceable if that party proves:

• § 61.079(7)(a)1. — “[t]he party did not execute the agreement voluntarily”;
• § 61.079(7)(a)2. — “[t]he agreement was the product of fraud, duress, coercion, or overreaching”; or
• § 61.079(7)(a)3. — the agreement “was unconscionable when it was executed” and, before execution, the party (a) “[w]as not provided a fair and reasonable disclosure of the property or financial obligations of the other party”; (b) “[d]id not voluntarily and expressly waive, in writing, any right to disclosure”; and (c) “[d]id not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.”

The third ground is conjunctive — all three sub-elements must be shown, on top of unconscionability. That is why a schedule of assets attached to the agreement, or an express written disclosure waiver under sub-subparagraph (b), does most of the defensive work.

Who decides whether an agreement is unconscionable? (§ 61.079(7)(c))

The judge, not a jury, and not as a fact question. § 61.079(7)(c): “An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.” Timing of a challenge is also generous to the objecting spouse: § 61.079(9) tolls any applicable statute of limitations “during the marriage of the parties to the agreement,” while preserving equitable defenses such as laches and estoppel.

How are postnuptial agreements different? (Casto v. Casto, 1987)

By its own definition, § 61.079 does not reach them: § 61.079(2)(a) defines a premarital agreement as one “made in contemplation of marriage and to be effective upon marriage.” A postnuptial agreement is signed after the marriage has begun, so its validity is governed by Florida common law rather than the Uniform Act — principally Casto v. Casto, 508 So. 2d 330 (Fla. 1987), which sets out the grounds for setting aside a marital agreement. Spouses already owe each other duties the engaged do not, so disclosure carries more weight in a postnuptial than the bare statutory minimum in § 61.079(3). A postnuptial agreement can, however, do the same classification work: it is a “valid written agreement of the parties” for purposes of § 61.075(6)(b)4.

When does a Florida court actually apply the agreement?

Only inside a Florida dissolution or related proceeding, which has its own thresholds. § 61.021 requires that “one of the parties to the marriage must reside 6 months in the state before the filing of the petition.” § 61.052(1)(a) supplies the no-fault ground — that “[t]he marriage is irretrievably broken.” And § 61.19 bars entry of a final judgment “until at least 20 days have elapsed from the date of filing the original petition,” absent a showing that injustice would result from the delay.

A prenup does not switch off fee-shifting. § 61.16(1) lets the court, “after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.” A spouse with no income can therefore still fund a challenge. Separately, § 61.079(10) confirms the section does not alter the formalities or effect of spousal-rights agreements under § 732.701 and § 732.702 of the Probate Code, so estate waivers should be drafted to satisfy both regimes.

How Pazos Law Group handles a Florida marital agreement

Nadia Pazos has practiced Florida family law for more than 20 years and handles these agreements from the firm’s Coral Gables office, in English and Spanish. The drafting tracks the statute: fix which § 61.079(4)(a) subjects the agreement must reach; attach a schedule answering § 61.079(7)(a)3.a.; document independent counsel and execution timing against § 61.079(7)(a)1.; and add the § 61.076 and § 61.075(6)(a)1.f. language a general waiver would miss.

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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.