Limits to Prenups and Postnups in Florida


Prenupital and postnupital agreements have been the most common way to ensure that property and assets are distributed appropriately in case of a divorce. Prenups may be signed for a variety of reasons, including the peace of mind of knowing what goes where after divorce. In most cases, prenups and postnups are a fair option for both parties, but there are cases in which coercion, deception, or a simple change of situation comes into play before a divorce.


In some cases, a prenup or a postnup may be appropriate for couples. In others, it might not. If you are not ready to sign a prenup, or have already gotten married, you still have options for writing up a document dividing your property and providing peace of mind.


Read through the conditions under which these contracts must be signed before you create your prenup or postnup. If you do not follow Florida’s terms for creating the documents, you may end up with a bad surprise in the event of a divorce.


Prenups and postnuptials are contracts that require signatures and witnesses to be valid, but even after the ink has dried, these documents may be found invalid and a fairer distribution of property may be able to occur. Just because something is written in the prenup does not mean it is guaranteed – or even legal – after a divorce. These documents also have limits. Be sure to read through your prenupital or postnupital (and consult a lawyer) before you begin the divorce process.


Ways a Prenup or Postnup Can Be Determined Invalid


Prenuptials and postnupitals require more than just a signature. If you can prove that any of the following situations occurred before signing a prenup or postnup, a judge may find the document invalid:


  • One or either party was not represented by independent counsel
  • One or either party did not fully disclose their financial situation, including assets or debt
  • One party was forced to sign the prenup or did not have the mental capacity to sign


Even having a limited amount of time to think about the prenup can make the document invalid. If you feel uncomfortable about the process before signing the document, disclose details of the process to a family lawyer.


It is also important to know that if the terms of your prenup or postnup are simply ridiculous or unfair, the court can determine it invalid – even if the contract was filled out correctly. This is called an “unconscionable contract.”


Ways a Prenup or Postnup Can Be Determined Invalid


Florida law states: “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.”


Florida judges want family cases to end with an equitable (fair) agreement. They prefer joint custody over sole custody, and settle divorces by the rules of equitable distribution of property.


Because of this, both parties will have the chance to make a case on whether a clause is unconscionable or not before the decision is made.


What About Custody and Non-Financial Matters?


Prenups and child custody documents are settled separately. If you have children and are writing a prenup or postnup, speak to a family lawyer about options outside of these documents. Anything involving the care of children will be deemed invalid when settling a prenup or postnup.


In fact, prenups and postnups are strictly about financial matters. Couples should not include the following terms in these documents:


  • Family matters (time with in-laws, or even friends for that matter)
  • Physical arrangements (frequency of sex, monogamy vs polyamory, etc.)
  • Getting or maintaining a job
  • Who will complete what chores or tasks around the home


These rules must be settled outside of the court, especially if they are terms for maintaining the marriage. Prenups or postnups should never encourage a divorce, separation, or other marital arrangement. If the prenup or postnup also includes terms that go against the law, these terms will be thrown out of the document.


What should be in prenups and postnups? One of the biggest appropriate issues to cover is the handling of alimony payments.


Contesting a Prenup or Postnup Doesn’t Have to Be Expensive


Contesting a Prenup or Postnup Doesn’t Have to Be Expensive


Not all divorce settlements have to cost large sums of money. If you need a Florida family lawyer, you have options for low-cost lawyers with extensive experience in areas like divorce, child custody, alimony, and even adoption. Reach out to a family lawyer today to learn more about your options.