Talking about the possibility of a marriage ending—before it has even begun, or while you are working to preserve it—can feel counterintuitive. But in reality, a marital agreement is not about planning for failure. It is about clarity, transparency, and control.
At Kalish & Jaggars, PLLC, we help clients use prenuptial and postnuptial agreements as proactive planning tools. In Florida, if you do not create your own financial plan, the state has already written one for you under its Equitable Distribution laws. A carefully drafted marital agreement allows you to opt out of those default rules and replace them with a framework that reflects your assets, responsibilities, and long-term goals.
What Is a Prenuptial Agreement?
A prenuptial agreement (commonly called a “prenup”) is a written contract entered into before marriage that defines how assets, debts, and spousal support will be handled if the marriage ends by divorce or death.
While prenups are often portrayed as unromantic, in practice they require couples to have honest, productive conversations about money, business interests, and expectations before legal rights attach. For many couples, that transparency strengthens the relationship by removing uncertainty and future conflict on potential pitfalls such as alimony or property division.
Why DIY Prenups and Online Templates Fail
Relying on a generic online form is a gamble. Florida’s Uniform Premarital Agreement Act (UPAA) imposes strict standards, and courts regularly scrutinize these agreements years later—often in the middle of a contentious divorce.
A template cannot evaluate whether:
- Financial disclosure was sufficiently complete under Florida law
- A waiver of rights was knowing and voluntary
- A provision could later be deemed unconscionable under the circumstances
Working with an experienced Florida prenuptial agreement attorney ensures your agreement is drafted to withstand judicial scrutiny when it matters most.
The Prenup Checklist: What You Can Protect
A properly drafted Florida prenuptial agreement can address:
Separate Property
Clearly identify assets owned before marriage—such as real estate, inheritances, investment accounts, and retirement funds—and define how appreciation will be treated.
Debt Allocation
Shield yourself from responsibility for a spouse’s pre-existing student loans, business liabilities, or other debts, and define how future debts will be handled.
Alimony and Spousal Support
Predetermine whether spousal support will be paid in the event of divorce, and if so, establish limits on amount and duration.
Business Ownership and Control
Protect a closely held business from division, forced sale, or unwanted ownership claims.
Estate and Inheritance Rights
Coordinate marital rights with estate planning goals, particularly for couples with children from prior relationships.
What Is a Postnuptial Agreement?
A postnuptial agreement (postnup) serves a similar purpose to a prenup, but it is signed after the marriage has already begun.
Life does not stand still. A postnup may be appropriate if one spouse starts a successful business, receives a significant inheritance, assumes financial risk, or if the couple needs clarity to stabilize the marriage. Florida law recognizes postnuptial agreements, but courts evaluate them under a higher level of scrutiny than prenuptial agreements.
The Fiduciary Duty Standard
Once married, spouses owe each other a fiduciary duty—a legal obligation of honesty, fairness, and full disclosure. Because of this duty:
- Full and accurate financial disclosure is generally mandatory
- Courts closely examine whether either spouse had an unfair advantage
- Postnups are frequently challenged if disclosure or fairness is lacking
When properly structured, a postnuptial agreement can function as a stabilizing tool—resolving financial uncertainty like property division so the couple can focus on repairing the relationship itself.
Requirements for a Valid Marital Agreement in Florida
For a prenuptial or postnuptial agreement to be enforceable under Florida Statute § 61.079 and relevant case law, several core requirements must be satisfied.
1. Voluntary Execution (No Duress)
An agreement must be entered into freely. Courts closely examine timing and circumstances. Presenting a prenup on the eve of the wedding, or conditioning marriage on immediate signing, can raise serious duress concerns.
2. Full and Fair Financial Disclosure
The most common reason marital agreements fail is inadequate disclosure. Each party must have a clear and accurate picture of the other’s assets, liabilities, and income.
- In some prenuptial agreements, disclosure may be waived—but only under limited, carefully documented circumstances
- In postnuptial agreements, disclosure generally cannot be waived
Material omissions or misrepresentations can lead a court to set aside part or all of the agreement.
3. Not Unconscionable Without Disclosure
Florida law permits parties to make unequal bargains—but only if the disadvantaged spouse understood what they were giving up. If an agreement is extremely one-sided and disclosure was lacking, a court is likely to invalidate it.
What Marital Agreements Cannot Cover
Even the most carefully drafted agreement cannot override Florida public policy.
Child Custody and Child Support
Parents cannot predetermine custody or support obligations. Courts must always decide these issues based on the best interests of the child at the time of separation.
Temporary Support During Divorce
A spouse cannot waive temporary alimony or support paid while a divorce is pending.
Lifestyle Clauses
Provisions governing weight, chores, or personal behavior are generally unenforceable. Clauses imposing financial consequences for infidelity may be included in limited circumstances, but they are closely scrutinized and often challenged.
Frequently Asked Questions
What is the difference between a prenup and postnup?
The primary difference is timing: a prenuptial agreement is signed before the wedding, while a postnuptial agreement is created after the couple is already married. Legally, prenups are governed by Florida’s Uniform Premarital Agreement Act (UPAA), whereas postnups fall under general contract law and are often subject to higher judicial scrutiny.
Can you do a postnuptial agreement without a lawyer?
Yes, it is legally possible to draft your own postnuptial agreement in Florida, but it is highly discouraged due to strict enforceability requirements. For the agreement to hold up in court, it must include full financial disclosure, be signed voluntarily without coercion, and be properly notarized with witnesses—any minor technical error can lead to a judge throwing the entire document out.
How much does a prenuptial agreement cost?
The total cost varies significantly based on the complexity of your financial assets and the amount of negotiation required between both parties’ attorneys. Generally, you can expect to pay a flat fee or an hourly rate that reflects the time needed to ensure full financial disclosure and legal enforceability under Florida law.
Can you get a prenuptial after marriage?
No, you cannot technically get a “prenuptial” agreement after you are married because the “pre” signifies it must happen before the legal union. However, you can achieve the exact same legal protections by signing a postnuptial agreement, which allows you to define asset division and alimony rights at any point during your marriage.
Why Choose Kalish & Jaggars, PLLC?
Marital agreements are only as strong as their ability to survive a future legal challenge. At Kalish & Jaggars, PLLC, we do not simply draft documents—we build litigation-tested strategies.
Because we regularly represent clients in contested Florida divorces, we understand exactly how and why judges invalidate agreements. That insight allows us to anticipate problems and address them before they arise.
If you are considering a prenuptial or postnuptial agreement in Florida, contact Kalish & Jaggars, PLLC today to schedule a confidential consultation. Let us help you build a plan that protects your assets, your legacy, and your peace of mind.
