Can You Use Mediation for a Prenup or Postnup in Florida?
Quick Answer
Can you use mediation for a prenup or postnup in Florida? Yes. Florida defines mediation as a process in which “a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties” and where “decisionmaking authority rests with the parties” (§ 44.1011(2)). For a prenup, the result still has to meet § 61.079(3): it “must be in writing and signed by both parties.” A mediator is neutral, so each of you may still want your own lawyer to review the final draft.
Pazos Law Group, a family law firm in Coral Gables serving Miami-Dade, Broward and Palm Beach counties, drafts and reviews Florida prenuptial and postnuptial agreements, in English or Spanish: (305) 482-1262.
What a Mediator Does, and Does Not Do
- The mediator’s role “is to reduce obstacles to communication, assist in identifying issues, explore alternatives, and otherwise facilitate voluntary agreements to resolve disputes, without prescribing what the resolution must be” (§ 44.403(4)).
- A mediator is “a neutral, impartial third person” (§ 44.403(4)), not an advocate for either of you.
- Florida does not require either party to have a lawyer for a prenup; § 61.079(3) requires a written agreement signed by both parties. Independent review is a choice each party makes.
What Stays Confidential
“Except as provided in this section, all mediation communications shall be confidential” (§ 44.405(1)), and “A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications” (§ 44.405(2)).
The agreement itself is different: “there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise” (§ 44.405(4)(a)).
When One of You Wants a Lawyer to Review the Mediated Draft
A common request is a review of a draft prepared with a mediator: both partners agree on the terms and want one lawyer to explain what the agreement does to them before they sign. See independent prenup review and what to check before signing a prenup.
Frequently Asked Questions
Can the mediator draft the prenup for both of us?
A mediator facilitates “without prescribing what the resolution must be” (§ 44.403(4)). If you want legal advice about the terms, each party can have a separate lawyer review the draft.
Does mediation work for a postnup too?
Yes. The same mediation rules apply. A postnup is signed after the wedding; see what a postnuptial agreement is in Florida.
Can we mediate by video?
A “mediation participant” includes a person who attends “in person or by telephone, video conference, or other electronic means” (§ 44.403(2)).
Primary Sources
- Fla. Stat. § 44.1011 — definition of mediation.
- Fla. Stat. § 44.403 — mediation participant, mediator.
- Fla. Stat. § 44.405 — confidentiality and privilege.
- Fla. Stat. § 61.079 — premarital agreements.
Related Reading
- Do both parties need a lawyer for a prenup?
- Schedule a mediation with Nadia Pazos, a Florida family mediator
- Florida prenuptial agreement attorney
Attorney advertising. General information, not legal advice.