A marriage does not always end all at once. Spouses are sometimes not ready to divorce; however, they also aren’t able to keep handling money, property, debt, or trust issues in the same manner they have throughout the marriage.
A postnuptial agreement provides married spouses with an opportunity to create new financial rules while they are still married. A postnuptial agreement in Florida can define what happens to property, debts, alimony, business interests, and other rights if the spouses later divorce or if one spouse dies.
Postnuptial agreements can be particularly helpful when spouses want to stay married yet need certainty. A spouse may want to clarify what happens to inherited money. A spouse may want to protect a business. A spouse may want to avoid fighting over every financial issue if divorce becomes inevitable.
So, how does a postnuptial agreement actually work in Florida?
Florida courts recognize postnuptial agreements. As stated in Casto v. Casto, “[p]ostnuptial agreements regarding alimony and marital property are properly enforceable in dissolution proceedings.” 508 So. 2d 330, 333 (Fla. 1987).
A postnuptial agreement is an agreement entered into by spouses after marriage. This agreement may define each spouse’s property rights, alimony rights, debt obligations, and other financial rights in the event of separation, divorce, or death.
A postnuptial agreement is not a prenuptial agreement. A prenuptial agreement is signed before marriage and becomes effective upon marriage, while a postnuptial agreement is signed after the marriage already exists.
Florida law does not provide one comprehensive “postnuptial agreement statute” in Chapter 61. Rather, Florida postnuptial agreements are governed mostly by Florida contract law and Florida Supreme Court case law, such as Casto.
Florida courts examine postnuptial agreements carefully because spouses are already married when they sign the agreement. Spouses are not strangers simply doing business with each other. As Casto states, “parties to a marriage are not dealing at arm’s length,” so trial courts must examine the circumstances surrounding the agreement with care. 508 So. 2d at 334.
A spouse may challenge a Florida postnuptial agreement in two ways. First, a spouse may prove that the agreement was reached through “fraud, deceit, duress, coercion, misrepresentation, or overreaching.” Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987).
Second, a spouse may challenge the agreement by showing that, given the parties’ circumstances, “the agreement makes an unfair or unreasonable provision for that spouse.” Id. To determine whether an agreement is unreasonable, the court considers the parties’ relative situations, including their “ages, health, education, and financial status.” Id.
If the challenging spouse establishes that the agreement is unreasonable, the defending spouse may still preserve the agreement by proving full disclosure or the challenging spouse’s general and approximate knowledge of the marital property and income. Id. at 333-34.
A bad bargain alone is not enough to invalidate a Florida postnuptial agreement. Casto explains that “[t]he fact that one party to the agreement apparently made a bad bargain is not a sufficient ground, by itself, to vacate or modify a settlement agreement.” Id. at 334. “If an agreement that is unreasonable is freely entered into, it is enforceable.” Id.
In Florida, a spouse also cannot invalidate a postnuptial agreement by merely arguing that the spouse received bad legal advice. The Florida Supreme Court held that “incompetent legal advice is not a basis to vacate an agreement in a dissolution proceeding.” Id. at 334-35.
The enforceability of a Florida postnuptial agreement often depends on the circumstances surrounding the agreement, the parties’ knowledge of the finances, and whether the agreement was entered into freely.
Why A Postnuptial Agreement Can Be A Good Idea In Florida
Divorce might not be certain, but it may be possible. In those cases, some spouses want to decide certain financial issues before the divorce case is filed.
Absent an agreement, the financial issues in a Florida divorce will be determined under Florida law. In a Florida divorce, the court must first “set apart to each spouse that spouse’s nonmarital assets and liabilities.” Fla. Stat. § 61.075(1). When distributing marital assets and liabilities, “the court must begin with the premise that the distribution should be equal.” Fla. Stat. § 61.075(1).
That “equal” starting point is not always what spouses want. A spouse who expects to receive inherited money may want to clarify that the inheritance will not become part of the marital estate. A spouse who owns a business may want the business to remain with that spouse alone.
Florida courts do not automatically reject marital agreements simply because they address what happens if the marriage ends. In Posner v. Posner, the Florida Supreme Court held that an antenuptial agreement settling alimony and property rights upon divorce “should no longer be held to be void ab initio as ‘contrary to public policy.’” 233 So. 2d 381, 385 (Fla. 1970). Further, Florida courts specifically recognize postnuptial agreements, as Casto states. 508 So. 2d at 333.
A postnuptial agreement lets spouses make financial decisions themselves rather than leaving every issue up to Florida’s divorce statutes. Spouses can agree how assets will be classified, how debts will be handled, and how property will be distributed if there is a divorce later on.
I often see how useful postnuptial agreements are when a spouse owns a business. Florida’s equitable distribution statute states that marital assets include “[t]he enhancement in value and appreciation of nonmarital assets” if that enhancement resulted from either spouse’s efforts during the marriage or from the contribution or expenditure of marital funds or other marital assets. Fla. Stat. § 61.075(6)(a)1.b.
Put simply, a business that began as one spouse’s nonmarital property could create divorce issues if the business increased in value during the marriage due to marital efforts or marital funds. A postnuptial agreement can address whether that business stays separate, whether the other spouse gets a buyout, or whether some other asset will be exchanged for any marital interest.
A postnuptial agreement can also address alimony. In a Florida divorce, “the court may grant alimony to either party” in the form of temporary, bridge-the-gap, rehabilitative, or durational alimony. Fla. Stat. § 61.08(1)(a). The court can also order periodic or lump sum payments. Fla. Stat. § 61.08(1)(a). A postnuptial agreement can create alimony terms in advance, waive alimony, or establish when alimony will or will not be paid.
In my experience, a postnuptial agreement can sometimes be the only practical way to change an existing prenuptial agreement after the parties are already married. Florida law provides that, “[a]fter marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties.” Fla. Stat. § 61.079(6). So, when spouses want to change the terms of their prenuptial agreement after marriage, the spouses need a written agreement signed by both parties.
Additionally, a postnuptial agreement can address what happens if one spouse dies. Florida law allows a surviving spouse to waive rights to a pretermitted share, intestate share, elective share, exempt property, homestead, family allowance, and other statutory rights “by a written contract, agreement, or waiver.” Fla. Stat. § 732.702(1). If that waiver is signed after marriage, “[e]ach spouse shall make a fair disclosure to the other of that spouse’s estate.” Fla. Stat. § 732.702(2).
In sum, a Florida postnuptial agreement may be useful for spouses who want to remain married but also want certainty about divorce rights, business ownership, property division, alimony, debt, inheritance, and estate rights.
What Can You Put In A Florida Postnuptial Agreement?
A Florida postnuptial agreement can address multiple financial issues between spouses.
The most common postnuptial agreement terms involve property. Spouses can agree which assets are marital, which assets are nonmarital, and how assets will be divided if the parties divorce in the future.
A postnuptial agreement can define what property will stay nonmarital. Florida law provides that nonmarital assets and liabilities include “[a]ssets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties.” Fla. Stat. § 61.075(6)(b)4. Florida’s equitable-distribution statute also requires the court to set apart each spouse’s nonmarital assets and liabilities before distributing marital assets and liabilities. Fla. Stat. § 61.075(1).
A Florida postnuptial agreement can address bank accounts, investment accounts, retirement accounts, real estate, personal property, vehicles, professional practices, stock options, bonuses, loans, debts, tax liabilities, and other financial issues.
Business interests can also be addressed in a postnuptial agreement. Florida law includes “[t]he marital interests in a closely held business” as marital assets. Fla. Stat. § 61.075(6)(a)1.f. The statute further provides that the “standard of value of a closely held business is fair market value.” Fla. Stat. § 61.075(6)(a)1.f.(I). Thus, a postnuptial agreement can clarify whether a business interest will be treated as marital, nonmarital, partially marital, or subject to a buyout.
A postnuptial agreement can also address alimony. In a Florida divorce, “the court may grant alimony to either party” as temporary, bridge-the-gap, rehabilitative, or durational alimony, but only after determining whether one party has an actual need for alimony and whether the other party has the ability to pay. Fla. Stat. § 61.08(1)(a), (2)(a). A postnuptial agreement can define whether alimony will be paid, how much will be paid, how long it will last, or whether alimony is waived.
I also see that some spouses want behavior-based terms. For instance, a postnuptial agreement may try to address waste of marital money, gambling, adultery, or substance abuse. When determining alimony, Florida law allows a court to consider adultery and its “resulting economic impact.” Fla. Stat. § 61.08(1)(a). Florida law further allows a court to consider “[t]he intentional dissipation, waste, depletion, or destruction of marital assets” after the filing of the petition or within two years before filing. Fla. Stat. § 61.075(1)(i). Thus, a postnuptial agreement can address conduct that has a financial impact; however, penalty-like provisions must be drafted carefully.
A postnuptial agreement can address estate rights as well. Florida law allows a surviving spouse’s rights to “an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance,” and other rights to be waived “before or after marriage, by a written contract, agreement, or waiver.” Fla. Stat. § 732.702(1). If the waiver is signed after marriage, “[e]ach spouse shall make a fair disclosure to the other of that spouse’s estate.” Fla. Stat. § 732.702(2).
A Florida postnuptial agreement is often strongest when it focuses on financial issues between spouses. The more clearly the agreement identifies the rights being created, limited, or waived, the more likely it is that the agreement can be understood and enforced later on.
What Cannot Be Controlled By A Florida Postnuptial Agreement?
A postnuptial agreement is unable to control every issue that may arise in a Florida divorce.
The most obvious limitation involves children. Parents may make agreements about their children. Florida courts, however, hold authority over child support, parental responsibility, and time-sharing.
For parental responsibility and time-sharing, Florida law states that “[t]he court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child.” Fla. Stat. § 61.13(2)(c). Florida law also provides that, “[f]or purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interests of the child must be the primary consideration.” Fla. Stat. § 61.13(3).
Accordingly, spouses cannot use a postnuptial agreement to compel a Florida court to approve a parenting plan that is not in the best interests of the child. Parents can propose a parenting plan, but the court still has to determine whether the parenting plan complies with Florida law.
Child support is also distinct from property division or alimony. In proceedings under Chapter 61, “the court may at any time order either or both parents who owe a duty of support to a child to pay support.” Fla. Stat. § 61.13(1)(a). Florida’s child support guidelines also state that the guideline amount “presumptively establishes the amount the trier of fact must order as child support for a minor child.” Fla. Stat. § 61.30(1)(a).
Parents cannot use a postnuptial agreement as a way to bargain away child support. As stated in Armour v. Allen, “[t]he law is clear that the parents may not contract away the rights of their child for support.” 377 So. 2d 798, 799-800 (Fla. 1st DCA 1979). Child support is “a right which belongs to the child” and “a dual obligation imposed on the parents by the State.” Id. at 800.
Florida courts have stayed true to this principle in later child-support cases. In Thurlow v. LaFata, the Fifth District explained that a child is the “real party in interest” in child-support enforcement matters and that a “next of friend, custodian or guardian” may not “contract away the child’s right to support.” 915 So. 2d 737, 739 (Fla. 5th DCA 2005).
Additionally, a postnuptial agreement may not be used to trade child support for time-sharing. Under Florida law, when a parent who owes child support or alimony fails to pay, “the parent who should have received the child support or alimony may not refuse to honor the time-sharing schedule presently in effect between the parents.” Fla. Stat. § 61.13(4)(a). Similarly, when a parent will not honor the other parent’s time-sharing rights, “the parent whose time-sharing rights were violated shall continue to pay any ordered child support or alimony.” Fla. Stat. § 61.13(4)(b).
I sometimes see behavior-based terms also create problems. A postnuptial agreement may address financial consequences for wasting marital money, incurring certain debts, or otherwise harming the marital estate. Yet, a clause that functions as a punishment may be challenged in the future. The more a clause looks like a penalty instead of a financial allocation, the more likely it is to turn into a separate fight in the divorce.
A postnuptial agreement is strongest when it focuses on the rights that belong to the spouses. It is weakest when it attempts to control rights that involve the children or issues over which the court has continuing authority.
How To Make A Florida Postnuptial Agreement Enforceable
Because a postnuptial agreement is only useful if it can survive later review by a Florida divorce court, it must be drafted with enforcement in mind.
First, the agreement must be in writing and signed by both spouses. It should expressly identify the property, debts, income, business interests, alimony rights, estate rights, and other rights being created, limited, or waived.
Second, a Florida postnuptial agreement should provide a financial disclosure. Casto explains that if a challenging spouse establishes that the agreement is unreasonable, there is a presumption that there was either concealment by the defending spouse or a lack of knowledge by the challenging spouse of the defending spouse’s finances. 508 So. 2d at 333. The defending spouse can rebut that presumption by showing either “a full, frank disclosure” before the agreement was signed or that the challenging spouse had “a general and approximate knowledge” of the character and extent of the marital property and the parties’ income. Id.
Florida courts continue to closely evaluate postnuptial agreements, as spouses do not deal with each other at arm’s length. For example, in Kearney v. Kearney, the First District affirmed the invalidation of a postnuptial agreement because the wife lacked full and fair disclosure of the assets at issue; it explained that “postnuptial agreements governing disposition of the parties’ assets are not enforceable if entered into in the absence of full and fair disclosure of the assets at issue.” 129 So. 3d 381, 384 (Fla. 1st DCA 2013).
Third, a well-drafted postnuptial agreement will attach or exchange schedules of assets, debts, income, business interests, retirement accounts, real estate, and other valuable property. For example, if a spouse owns a business, the agreement should identify the business, the ownership interest, and how the business was valued. Another example is if a spouse is waiving alimony or estate rights, the agreement should make that waiver clear.
Fourth, the agreement should be voluntary; a spouse can challenge a postnuptial agreement by proving it was reached through “fraud, deceit, duress, coercion, misrepresentation, or overreaching.” Casto, 508 So. 2d at 333. So, a spouse cannot be pressured into signing a postnuptial agreement at the last minute, threatened into signing, told not to review the agreement carefully, or misled about any financial consequences.
Fifth, separate lawyers can often be helpful. However, Florida law does not make competent legal advice an independent requirement for all postnuptial agreements. Regardless, separate counsel can help demonstrate that both spouses had the opportunity to understand the agreement before signing it.
Sixth, a postnuptial agreement should avoid any vague language. Thus, where an agreement says an asset will remain separate, the agreement must identify what the asset is. Where an agreement waives alimony, the agreement should identify whether the waiver applies to temporary alimony, final alimony, or both.
Finally, but importantly, a Florida postnuptial agreement should not assume that one spouse’s bad bargain automatically makes the agreement invalid.
In all, a Florida postnuptial agreement is more likely to be enforced if both spouses voluntarily sign, both spouses understand the financial circumstances, the agreement identifies the rights being changed clearly, and the agreement does not attempt to bargain away rights that Florida law protects.
Are Florida Postnuptial Agreements Worth It?
A Florida postnuptial agreement is worth it when spouses are not in a place to divorce but need clear financial rules. A postnuptial agreement can protect property, clarify business interests, address alimony, allocate debts, and coordinate estate rights.
A poorly drafted postnuptial agreement often has the opposite effect. When an agreement lacks meaningful financial disclosure, provides vague terms, or tries to control rights that belong to children, the agreement usually leads to more litigation.
Florida courts recognize postnuptial agreements, but they also examine the circumstances surrounding the agreement with care. A postnuptial agreement is strongest when both spouses understand the financial circumstances, sign voluntarily, and identify the rights being created, limited, or waived. Casto, 508 So. 2d at 333-34.
If you are someone considering a postnuptial agreement, enforcing a postnuptial agreement, or challenging a postnuptial agreement, contact my Florida family law firm to speak with an experienced Florida divorce attorney.
Russell Knight has practiced family law for more than 19 years and has handled thousands of divorces and family law cases involving alimony, property division, child support, parenting issues, business interests, income disputes, and complex financial issues. As a divorce lawyer licensed in both Florida and Illinois, Russell regularly helps clients evaluate how marital agreements can affect divorce, support, property, and family-law litigation.
CASES AND STATUTES REFERENCED IN THE POSTNUPTIAL AGREEMENTS IN FLORIDA ARTICLE
Fla. Stat. § 61.075 — Equitable Distribution of Marital Assets and Liabilities
Fla. Stat. § 61.079 — Premarital Agreements
Fla. Stat. § 61.13 — Support of Children; Parenting and Time-Sharing; Powers of Court
Fla. Stat. § 61.30 — Child Support Guidelines
Fla. Stat. § 732.702 — Waiver of Spousal Rights
Casto v. Casto, 508 So. 2d 330 (Fla. 1987)
Posner v. Posner, 233 So. 2d 381 (Fla. 1970)
Armour v. Allen, 377 So. 2d 798 (Fla. 1st DCA 1979)
Thurlow v. LaFata, 915 So. 2d 737 (Fla. 5th DCA 2005)
Kearney v. Kearney, 129 So. 3d 381 (Fla. 1st DCA 2013)
FREQUENTLY ASKED QUESTIONS ABOUT POSTNUPTIAL AGREEMENTS IN FLORIDA
What can a Florida postnuptial agreement include? A Florida postnuptial agreement can address property, debts, business interests, alimony, estate rights, and other financial concerns or problems that spouses may have.
Can a Florida postnuptial agreement decide what happens to a business in divorce? Yes, it can address whether a business interest will be treated as marital, nonmarital, partially marital, or subject to a buyout if the couple divorces later on.
Can spouses waive alimony in a Florida postnuptial agreement? Yes, it can address alimony, like whether or not alimony will be paid, how much will be paid, or how long it will last.
Can a postnuptial agreement change a prenuptial agreement in Florida? Yes, under Florida law, “[a]fter marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties.” Fla. Stat. § 61.079(6).
How can spouses make a Florida postnuptial agreement more enforceable? A Florida postnuptial agreement is likely to be enforced when both parties sign it voluntarily, understand the financial circumstances, and identify the rights being created, limited, or waived carefully.
