Family law
Postnuptial agreements in Florida
The same instrument as a prenup, held to a stricter standard because you are already married
A postnuptial agreement settles what happens to property, debt and support if a marriage ends, signed after the wedding rather than before it. Florida enforces them. But it does not enforce them under the Premarital Agreement Act, which applies only to agreements made before marriage, and that distinction matters: spouses already owe each other a duty of candor, so a court looks harder at disclosure and fairness than it would with a prenup.
01 Quick answers
- Is it the same as a prenup?
- The purpose is the same. The legal framework is not. Fla. Stat. § 61.079 governs premarital agreements; a postnuptial agreement is governed by general contract and family law principles.
- Why is it held to a stricter standard?
- Because you are already married. Spouses stand in a relationship of trust, so a court examines whether disclosure was full and whether the bargain was fair more closely than it would before a wedding.
- What has to be disclosed?
- Assets, debts and income, fully and in writing. Incomplete disclosure is the most common reason one of these is set aside.
- Does each spouse need their own lawyer?
- Not legally required, but independent counsel for both is the single strongest protection against a later claim of overreaching.
- Can it decide child support?
- No. Child support belongs to the child, is set by the § 61.30 guidelines, and cannot be bargained away by the parents.
- Can we sign one while separated?
- Yes, and that is a common moment for it. Where a separation is heading toward a dissolution, a marital settlement agreement may be the better instrument.
02 The difference
Why the timing changes the law that applies
A premarital agreement is signed by two people who are not yet married, and Florida governs it by statute. Section 61.079, the Uniform Premarital Agreement Act, sets out what may be agreed, when it takes effect, and the narrow grounds on which it can be set aside.
A postnuptial agreement is signed by two people who are already married, and that act does not reach it. It is governed by general contract principles and by family law decisions rather than by a single statute.
The practical consequence is the standard. Before a wedding, two people are at arm’s length and each is free to walk away. After it, they are in a relationship of trust and candor, with shared finances and a great deal of information that may sit with only one of them. Courts account for that by looking more closely at whether disclosure was complete and whether the agreement was reached fairly.
That is not a reason to avoid one. It is a reason to build it properly, because the things that make a postnuptial agreement survive are the same things that are tempting to skip.
Before the wedding you are at arm’s length. After it you owe each other candor, and a court will check.
03 What makes one hold
The four things a court looks for
Full financial disclosure. Assets, debts, income and anything with value, exchanged in writing and attached to the agreement. This is where most failed agreements fail, and the failure is usually an omission rather than a lie — an account nobody mentioned, a business interest valued casually, an inheritance left off the list.
Voluntariness. Signed freely, without coercion and without the kind of pressure that comes from a deadline. An agreement produced during a crisis, or presented with an ultimatum attached, invites exactly the argument you are trying to prevent.
Independent counsel on both sides. Not a legal requirement, and the single most effective protection there is. One lawyer cannot represent both spouses, and an unrepresented spouse is the easiest later argument that the bargain was not understood.
Terms that are not unconscionable. An agreement can be lopsided — people agree to lopsided things for their own reasons — but one that leaves a spouse with nothing, signed without disclosure or counsel, is the profile a court sets aside.
And write down why. A recital explaining what the agreement is for — protecting a family business, a second marriage with children from a first, an inheritance meant to stay in one line — does real work years later, when the context has been forgotten and only the document is left.
04 What it can cover
And the one thing it cannot
What it can settle: which property is marital and which is separate; what happens to a business, a professional practice or a pension; how debt is allocated; what happens to the home; and alimony, including waiving it.
Alimony deserves its own sentence, because Florida rewrote it in 2023. Permanent alimony is gone, the remaining forms are capped, and an agreement drafted against the old law may be addressing a remedy that no longer exists. An agreement signed before mid-2023 is worth reading again.
What it cannot settle is anything about the children. Child support belongs to the child rather than to the parents and is set by the § 61.30 guidelines. Time-sharing is decided by the child’s best interests at the time it is decided. Parents may write what they like on these subjects; a court is not bound by any of it.
There is also a question of which state’s law applies if the couple may move. It is worth addressing in the agreement rather than discovering later that the law under which it was drafted is not the law being applied to it.
05 Why now
What usually prompts one
A business. One spouse starts or inherits a company, and partners or lenders want certainty that a divorce will not put the business into a division fight.
An inheritance. Money or property arrives from one spouse’s family and is intended to stay in that line. Inherited property is generally non-marital, but it loses that character when it is mixed with marital money, and an agreement can document the intention before that happens.
A change in circumstances. One spouse leaves work to raise children, or takes on debt, or a second marriage brings children from a first who are meant to inherit.
Or reconciliation. A couple works through a serious difficulty and wants the financial terms settled so that the subject stops being the argument. That is a legitimate use of the instrument and a common one, and it is also the situation where voluntariness is most worth documenting carefully.
06 The statutes
- Fla. Stat. § 61.079 Premarital agreements The act that governs agreements made BEFORE marriage — and therefore not this one.
- Fla. Stat. § 61.075 Equitable distribution What a court does with property absent an agreement, which is what one is written to replace.
- Fla. Stat. § 61.08 Alimony The 2023 framework an agreement has to be drafted against, not the old one.
- Fla. Stat. § 61.30 Child support guidelines The formula no agreement between parents can displace.
Postnuptial agreements questions, answered
We already have a prenup. Can we change it?
Yes. Spouses can amend or revoke an earlier agreement, in writing and signed by both. What matters is that the amendment is built as carefully as the original, because it is now a postnuptial agreement and is examined as one.
If the original was drafted before mid-2023, the alimony terms in particular are worth reading again against the current statute.
My spouse will not disclose everything.
Then do not sign. An agreement built on incomplete disclosure is the one most likely to be set aside, which means the protection you thought you had is not there at the moment you need it.
Disclosure is not an obstacle to the agreement. It is what makes the agreement worth having.
Can we use the same lawyer to save money?
One lawyer cannot represent both spouses — the interests are adverse by definition. One spouse can have the agreement drafted and the other can have their own lawyer review it, which is the usual arrangement and the one that holds up.
An unrepresented spouse is the easiest later argument that the bargain was not understood.
Does signing one mean we are heading for divorce?
Not in itself, and plenty of couples sign one precisely so that a recurring financial argument stops being an argument. Where a separation is already underway and dissolution is the likely direction, a marital settlement agreement is usually the better instrument.
Will it be enforced if we move to another state?
It depends on that state’s law and on what the agreement says about which law governs it. That clause is worth including rather than leaving to be decided later by a court somewhere else.
What does this cost?
Family matters are billed hourly, and the range depends on the complexity of the assets and on how much negotiation there is between the two sides. Court costs do not arise unless the agreement is ever litigated. The rate is stated before anything is signed.
Consultations and attorney’s fees are billed hourly. Court costs and case expenses are billed separately. Payment plans are available.
Talk to Jose A. Dapena about your postnuptial agreements matter
You speak with the attorney who would handle the case, not an intake department. Practicing in Florida since 1998, Florida Bar number 152358.
Consultations and attorney’s fees are billed hourly. Court costs and case expenses are billed separately. Payment plans are available.