Florida Prenuptial Agreements: UPAA Compliance and What's Enforceable

Florida Prenuptial Agreements: What's Enforceable Under the UPAA

A prenuptial agreement signed in Florida is not just a private contract between two people getting married. It is drafted against a specific statutory backdrop — the Florida version of the **Uniform Premarital Agreement Act**, codified at **Fla. Stat. § 61.079** — and that statute decides which clauses a divorce court will enforce, which it will throw out, and what procedural defects can make the entire instrument collapse.

This guide walks through what a Florida prenup must satisfy in 2026, the defenses the disadvantaged spouse can raise to attack it, and the way the **2023 alimony reform** has quietly outdated a meaningful number of older prenups drafted around the now-extinct concept of "permanent" alimony.

1. The UPAA framework in Florida

Florida adopted its version of the Uniform Premarital Agreement Act effective **October 1, 2007**, and § 61.079 has governed every prenuptial agreement executed on or after that date. Agreements signed before that date are still measured against the older common-law standard, but the overwhelming majority of agreements reaching a divorce court today are UPAA agreements.

The statute does three things. It defines what a premarital agreement is, it lists the subjects the parties may address, and it tells the court exactly which defenses a spouse can raise to escape enforcement. Because § 61.079(7) is an exclusive list, ordinary contract defenses — buyer's remorse, mistake about how the marriage would turn out, regret about waiving an inheritance — do not survive on their own. A challenger has to fit the attack into the statutory categories or lose.

2. Formal requirements: writing, signatures, consideration

The threshold under § 61.079 is short but strict. A premarital agreement must be **in writing** and **signed by both parties**. Oral side deals do not count. The statute itself does not require notarization or witnesses, but careful drafting practice is to have two witnesses and a notary because the document often doubles as a waiver of homestead and elective-share rights under the probate code, which do require those formalities.

A premarital agreement is **enforceable without consideration other than the marriage itself**. The exchange of promises in contemplation of marriage is the consideration. A spouse cannot defeat enforcement years later by arguing he or she received "nothing" in exchange for waiving alimony, because under the UPAA the marriage itself is what was bargained for.

After the wedding, a premarital agreement may be **amended, revoked, or abandoned** only by a written instrument signed by both parties. That writing is also enforceable without separate consideration. A couple cannot orally agree five years in that the prenup "no longer applies."

3. What a Florida prenup may and may not address

The UPAA's reach is broad. The statute allows the parties to contract about:

• **Rights and obligations in property** — premarital, marital, and nonmarital.
• **Authority to buy, sell, lease, encumber, assign, or otherwise manage** specific assets during the marriage.
• **Disposition of property** on separation, divorce, death, or other event.
• **Modification, waiver, or elimination of spousal support** (alimony).
• **The making of a will, trust, or other arrangement** to carry out the agreement.
• **Ownership and disposition of the death benefit** from a life insurance policy.
• **Choice of law** governing the construction of the agreement.

A catch-all permits parties to address "any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty."

What a Florida prenup **may not do**:

• **It cannot waive, limit, or determine child support.** Child support belongs to the child, not the parents. Any clause purporting to contract it away in advance is void.
• **It cannot dictate timesharing or parental responsibility.** Custody and parenting plans are decided at dissolution under a best-interests analysis.
• **It cannot contravene public policy or facilitate a criminal act.**

A critical **public-benefits backstop** applies to spousal support waivers. Under § 61.079, if a provision modifying or eliminating spousal support causes one party to be eligible for public assistance at the time of separation or divorce, the court may require the other party to provide support to the extent necessary to avoid that eligibility — notwithstanding the contractual waiver. The waiver does not enforce itself when the consequence is that the State has to pick up the tab.

4. Enforceability defenses under § 61.079(7)

This is the core of every contested prenup case. Section 61.079(7) gives the challenging spouse two — and only two — basic ways to defeat the agreement.

**Defense one: involuntariness.** The party against whom enforcement is sought can prove that he or she did not execute the agreement voluntarily. This is a totality-of-the-circumstances inquiry. Florida courts look at how much time the spouse had to review and reflect on the document, whether the spouse had access to independent legal counsel (and was given a genuine opportunity to consult that counsel), whether the spouse was under coercion, duress, undue influence, or extreme time pressure, and whether the spouse understood the rights being waived. A prenup pushed across the table at the rehearsal dinner, with a "sign or the wedding is off" message attached, is a classic involuntariness fact pattern.

**Defense two: unconscionability combined with a disclosure defect.** This is a two-part test, and the challenger has to prove **both** parts.

• The agreement must have been **unconscionable when it was executed** (not unconscionable in hindsight because the marriage turned out badly), **and**
• Before execution, the challenger **was not provided a fair and reasonable disclosure** of the other party's property and financial obligations, **did not voluntarily and expressly waive** in writing any right to that disclosure beyond what was provided, **and did not have, or reasonably could not have had, an adequate knowledge** of the other party's property and financial obligations.

Each piece of the second prong matters. Even an unconscionable contract is enforceable under the UPAA if proper financial disclosure was given. Even a contract executed without disclosure is enforceable if the challenger expressly waived the right to disclosure or independently knew what the other side owned. The statute is built to encourage front-loaded transparency. A spouse who got a real disclosure cannot later complain about a one-sided economic outcome — that was the bargain.

A third statutory provision states that the issue of unconscionability is decided by the **court as a matter of law**, not by a jury. That is consistent with the rest of Florida's contract law treatment of unconscionability.

5. Financial disclosure: what actually counts

Because disclosure sits at the heart of the unconscionability defense, careful drafting practice is to attach a **schedule of assets, liabilities, and income** as an exhibit, signed and initialed by both parties. The schedule typically lists real estate, bank and investment accounts, business interests, retirement accounts, life insurance, vehicles, valuable personal property, outstanding debts, and each party's annualized income.

Disclosure does not have to be perfect, and it does not have to be a forensic audit. The standard is **"fair and reasonable"** — the other side needs enough information to understand, at least in general magnitude, what is being waived. Omitting a 401(k) balance because the spouse "forgot about it" is exactly the soft disclosure that gives a challenger leverage years later.

The drafting alternative is an **express waiver of further disclosure**. A waiver clause works under the statute, but only if the spouse signing it had at least general or constructive knowledge of the other side's holdings. A blind waiver from a spouse who knew nothing about the other party's wealth is the kind of clause that crumbles when challenged.

6. Voluntariness in practice

Voluntariness is not a checklist, but Florida judges have settled into recognizable signals.

• **Timing.** A prenup negotiated weeks or months before the wedding, with multiple drafts exchanged, looks voluntary. A prenup presented the night before the wedding looks coerced even without an overt threat.
• **Independent counsel.** Each party should have his or her own attorney. If the wealthier spouse is funding both lawyers, that arrangement should be acknowledged in writing.
• **Time to review.** A spouse who had no real opportunity to read the agreement, or who was rushed by the other party's lawyer, is the spouse the statute was written to protect.
• **Language and capacity.** If the signer is not fluent in English, a translated version or translator is essential. Intoxication or medication at execution opens the analysis up significantly.
• **Coercive context.** Threats to call off the wedding, threats tied to immigration status, and threats to withhold financial support during the engagement weigh heavily against enforcement.

7. Postnuptial agreements are not prenups

A common drafting mistake is to assume a **postnuptial agreement** — one executed after the wedding — is governed by the same statutory framework. It is not. The UPAA applies to **premarital** agreements. Postnups are governed by **common-law principles**, including the line of cases descending from **Casto v. Casto, 508 So. 2d 330 (Fla. 1987)**.

Two practical differences matter most. First, **both parties must fully disclose their assets** to one another for a postnuptial agreement to be valid in Florida. The UPAA's allowance for express waivers of disclosure does not map cleanly onto postnups. Second, **there must be consideration**. Unlike a prenup, where the marriage itself supplies it, a postnup needs an actual exchange — each spouse must give up something to get something. A bare promise to waive future alimony, in exchange for nothing, is unenforceable.

The label matters less than the timing. An agreement signed on the wedding day before the ceremony is typically still a prenup; one signed an hour after the ceremony is a postnup and gets the stricter scrutiny.

8. The 2023 alimony reform and old prenups

Effective **July 1, 2023**, Florida Statute § 61.08 was rewritten. The current statute provides:

• **Permanent alimony is abolished**, replaced by **durational alimony**, capped at **50% of the length of a short-term marriage** (3 to 10 years), **60% of a moderate-term marriage** (10 to 20 years), and **75% of a long-term marriage** (over 20 years), with extension only on clear and convincing evidence.
• **Couples married fewer than three years** are no longer eligible for alimony.
• **A statutory formula caps the maximum award** at the obligee's reasonable need, or **35% of the difference between the parties' net incomes**, whichever is less.
• **Retirement modification** under § 61.14 is now codified, allowing payors to petition for modification or termination upon reaching normal retirement age.

This matters for prenups in two ways.

**For agreements drafted before July 1, 2023.** A prenup that "waives any right to permanent alimony" presents an interpretation question that did not exist when the contract was signed — the category no longer exists. Some clauses are broad enough — for example, "waives any and all forms of spousal support, alimony, or maintenance under Florida law, whether existing now or enacted hereafter" — to sweep durational alimony in by plain text. Others are narrower and arguably waive only the defunct category. Either way, a divorcing spouse with an old "permanent alimony" waiver should expect the issue to be litigated.

**For agreements drafted today.** Counsel should not reference "permanent" alimony at all. The cleaner practice is to reference the statutory categories in force — durational, bridge-the-gap, rehabilitative — and waive or limit each by name, plus a catch-all for "any other form of spousal support, maintenance, or alimony now or hereafter recognized under Florida law." This avoids a future statutory rewrite leaving the agreement ambiguous again.

9. What the Florida appellate courts have said

In **Duran v. Duran**, 50 Fla. L. Weekly D244 (Fla. 3d DCA Jan. 22, 2025), the Third District affirmed a trial-court order **declining to enforce** a prenuptial agreement, holding the trial court's determination was supported by competent, substantial evidence and that "it is not the function of the appellate court to re-evaluate testimony and evidence presented at trial." The opinion reinforces that prenup enforceability rulings sit on a deferential standard of review.

The practical lesson: the prenup fight is largely won or lost in the trial court. Once the trial judge has weighed credibility on voluntariness, the adequacy of disclosure, and the procedural circumstances of execution, an appellate court is unlikely to second-guess the result. A strong evidentiary record at the trial level is the only insurance a party has on appeal.

10. Practical takeaways

For the spouse asking to have an agreement drafted: start early, fund independent counsel for the other spouse in writing, attach a real disclosure schedule, draft alimony language to the current statute, and sign weeks before the wedding.

For the spouse being asked to sign one: read every word, ask for time, ask for counsel, ask for the disclosure schedule. The UPAA's defense framework is narrow — signing now and challenging later is rarely a sound plan.

For a spouse who signed years ago and is now contemplating divorce: the question is whether the old contract still says what the drafter thought it said in light of the 2023 reform. Where alimony was the centerpiece of the bargain, a prenup review is the cheapest way to learn what is and is not enforceable.

Louis Law Group offers a **flat-fee prenuptial agreement review at $695** for the spouse on the receiving end of a document drafted by the other side's attorney. The review covers UPAA compliance, the financial disclosure schedule, the voluntariness posture, and the alimony-waiver language under the current statute, with a written summary of what is enforceable, what is challengeable, and what to negotiate before signing. Details at [/services/prenup-review](/services/prenup-review). If you are the spouse asking to have the agreement drafted, intake begins at [/qualifier?practice=prenup_drafting](/qualifier?practice=prenup_drafting). Flat-fee structures for both engagements are listed on the [/pricing](/pricing) page.

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**Attorney advertising disclaimer.** This article is general legal information about Florida prenuptial agreements and the Uniform Premarital Agreement Act. It is not legal advice and does not create an attorney-client relationship. Outcomes depend on the specific facts of your situation, the precise language of any agreement at issue, and the applicable Florida statutes and case law at the time of your matter. Past results do not guarantee future outcomes. The hiring of a lawyer is an important decision that should not be based solely on advertisements; before you decide, ask the lawyer to send you free written information about qualifications and experience.