Yes. A Florida premarital agreement can be set aside. It does not happen often, and almost never because one spouse decided years later that the deal was a poor one. It happens when the agreement fails a specific statutory test, and that test is narrower than most people expect.
Florida enforces premarital agreements under the Uniform Premarital Agreement Act, section 61.079 of the Florida Statutes, which applies to agreements signed on or after October 1, 2007. The spouse asking the court to disregard the agreement carries the burden of proof, and the available grounds are limited. Knowing what those grounds are is the difference between a challenge worth bringing and a challenge that only adds cost and delay to a divorce.
The grounds a Florida court will actually consider
Under section 61.079(7), a premarital agreement is not enforceable if the party against whom enforcement is sought proves one of the following.
- The agreement was not executed voluntarily. This is about the act of signing, not the generosity of the terms. Courts look at the circumstances: how the document arrived, how much time there was, and what the person understood they were signing.
- The agreement was the product of fraud, duress, coercion, or overreaching. These are contract concepts with settled legal meanings. A judge applies those meanings, not a layperson's sense of having been pushed.
- The agreement was unconscionable when it was executed, and the disclosure was inadequate. This third ground has parts, and all of them have to be present. The challenging spouse must show the agreement was unconscionable at the time of signing, and that before signing he or she was not provided a fair and reasonable disclosure of the other party's property and financial obligations, did not voluntarily and expressly waive that disclosure in writing, and did not have and could not reasonably have had adequate knowledge of those finances.
The statute also directs that unconscionability is decided by the court as a matter of law. It is a high threshold. An agreement that leaves one spouse with considerably less than a court would have awarded is not, for that reason alone, unconscionable.
Why disclosure is the issue that decides most cases
The third ground is where genuine challenges usually live, and its structure is worth reading twice. Unconscionability alone is not enough. A disclosure failure alone is not enough. The two have to travel together.
That structure explains why careful agreements are built the way they are. Schedules of assets and debts are attached and referenced. Where a party decides not to press for more detail, the waiver of further disclosure is written into the document rather than assumed. If the agreement redefines what would otherwise be marital property and how it is divided, the financial picture behind that trade is documented at the time, when it is still easy to document. Years later, when memories differ, the paper is what remains. You can read more about how these agreements are structured on our page covering prenuptial and postnuptial agreements, and about the default rules an agreement is written to change on our property division page.
What generally does not invalidate an agreement
- A bad bargain by itself. Florida public policy favors enforcing contracts people signed. Parties are free to agree to terms a court would not have imposed on them.
- Not having your own attorney. Florida does not require each party to be separately represented for the agreement to be valid. Whether a party had counsel is a fact a court may weigh when looking at voluntariness or overreaching, but it is not a ground on its own.
- Signing close to the wedding. Timing is evidence, and real pressure applied on the eve of a wedding can support a claim of duress or overreaching. Standing alone, though, the fear of calling off a wedding has not generally been treated as coercion in the legal sense.
- A change of circumstances later. The statute measures unconscionability at the time the agreement was executed. What the marriage became afterward is a different question.
Postnuptial agreements are measured by a different standard
Section 61.079 covers agreements made in contemplation of marriage and effective upon marriage. An agreement signed after the wedding, often called a postnuptial or marital agreement, is not governed by that statute. Florida courts review it under general contract principles and the framework set out in Casto v. Casto, 508 So. 2d 330 (Fla. 1987), a case that itself involved an agreement signed during the marriage.
Casto describes two ways a spouse may challenge such an agreement. The first is the familiar list: fraud, deceit, duress, coercion, misrepresentation, or overreaching. The second has no counterpart in the premarital statute. A spouse may show that the agreement makes an unfair or unreasonable provision given the parties' relative circumstances, including their respective ages, health, education, and financial positions. If the court finds that showing has been made, the burden shifts to the spouse defending the agreement, who may respond with evidence of a full and frank disclosure before the signing, or evidence that the challenging spouse had a general and approximate knowledge of the other's property and income. The question then becomes whether the challenging spouse was prejudiced by what was not disclosed.
A postnuptial agreement can be easier to unwind than a premarital one, because the unfair or unreasonable route and the shifting burden remain available in a way the premarital statute does not allow. Courts also examine agreements negotiated inside an existing marriage with particular care.
What a premarital agreement cannot decide
Florida limits the subject matter. Section 61.079(4) allows the parties to contract about property rights, the disposition of property on separation, dissolution, or death, the ownership and beneficiary of a life insurance death benefit, choice of law, and the modification or elimination of spousal support. The same section provides that the right of a child to support may not be adversely affected by a premarital agreement.
Time-sharing and parenting decisions also sit outside what two people can settle in advance. Florida courts decide those under the best interests standard in section 61.13, on the facts as they exist when the case is heard, rather than by a document signed before the children existed.
A support waiver carries one statutory exception as well. If the provision modifying or eliminating spousal support causes one party to become eligible for public assistance at the time of separation or dissolution, the court may require the other party to provide support to the extent necessary to avoid that eligibility. The rest of Florida's support framework is covered on our alimony page.
Two dates that change the analysis
The first is October 1, 2007. Agreements signed before that date predate Florida's adoption of the premarital statute and are reviewed under the case law that governed beforehand, including Casto. If your agreement is old, the standard applied to it may not be the one described above.
The second is July 1, 2023, when Florida's alimony statute was rewritten and permanent alimony was eliminated for final judgments entered on or after that date. A waiver of support written before then still reads as a waiver. But an agreement drafted around the idea of permanent alimony is describing an award a Florida court can no longer enter. That by itself does not unsettle the agreement, and it is a sound reason to have an older document read again by someone who works in this area.
If you are looking at your own agreement
Whether you hope to enforce an agreement or to set one aside, the analysis begins with documents rather than with how the signing felt. Gather the agreement and every schedule or exhibit attached to it, whatever financial disclosure was exchanged and when, any written waiver of disclosure, drafts and correspondence showing the timeline from first draft to signature, and a record of what each person owned and owed at the time. That file is what a court will work from, and it usually shows early whether a challenge has substance.
Rechel & Associates is focused exclusively on divorce and family law and has been serving Tampa Bay families since 1992. Cases in this county are heard in the Hillsborough County Circuit Court, Family Law Division, at the George Edgecomb Courthouse in Tampa. If you would like a specific agreement reviewed, you can reach the firm at (813) 931-8111 or through our contact page.