Prenuptial agreements are one of the most powerful legal tools available to couples entering marriage. They provide a blueprint for how financial matters will be handled during the marriage and in the event of divorce or death. But like all legal documents, prenups have boundaries—certain things can be negotiated and enforced, while others are strictly off-limits under Florida law.
Understanding what belongs in a Florida prenuptial agreement—and what doesn’t—is crucial for enforceability. Couples who try to include provisions that violate public policy or state statutes risk having portions or even the entire agreement thrown out by a judge.
If you’re considering a prenup, this guide will walk you through the terms that are commonly included, the clauses that should be avoided, and the role of a Tampa prenup lawyer in ensuring your agreement holds up in court.
What Is a Prenuptial Agreement Under Florida Law?
A prenuptial agreement, or premarital agreement, is a contract made between two individuals in anticipation of marriage. Under Florida Statutes, specifically the Uniform Premarital Agreement Act (UPAA), a prenup must be:
- In writing
- Signed voluntarily by both parties
- Signed before marriage
- Based on full and fair disclosure of assets and liabilities
Unlike informal verbal promises, a prenuptial agreement is enforceable in court if properly executed. However, the enforceability depends not just on how the agreement is formed, but also on what it contains.
Working with a Tampa prenup lawyer ensures that the terms of the agreement meet Florida’s legal standards and reflect the unique circumstances of your relationship.
What Can Be Included in a Florida Prenup
Couples have broad latitude in defining their financial relationship in a prenup. While every agreement is different, here are the categories most commonly and permissibly addressed.
1. Asset Ownership and Division
One of the most fundamental components of any prenup is the clear delineation of what constitutes separate property versus marital property. Couples may agree:
- That each party will retain sole ownership of premarital property
- That income or gains derived from separate property will remain separate
- That marital property will be divided in a specific manner
- That certain assets will always remain jointly owned, regardless of contribution
By clearly defining how property is treated, a prenuptial agreement can reduce disputes during divorce.
A Tampa prenup lawyer will work with each party to inventory their assets and assign classifications in the agreement.
2. Treatment of Debts
Debts can be just as important as assets. A well-drafted prenup may include terms addressing:
- Responsibility for premarital student loans or credit cards
- How new debt acquired during the marriage will be assigned
- Protection for one spouse from the other’s business liabilities
- How joint debt will be resolved if the marriage ends
Specifying debt obligations in advance helps prevent financial surprises and shields each party from unfair burdens.
3. Spousal Support (Alimony)
Florida law permits couples to waive or limit spousal support in a prenup. The agreement can:
- Eliminate alimony altogether
- Set a fixed amount or duration of support
- Establish conditions under which support may or may not be owed
However, courts retain discretion to override alimony waivers if enforcing them would leave one spouse destitute or if the provision is deemed unconscionable at the time of enforcement.
A Tampa prenup lawyer will ensure that any alimony clauses are balanced, clearly stated, and enforceable under Florida standards.
4. Rights Upon Death
A prenup can override many default inheritance rights. Couples can agree to:
- Waive elective share rights
- Modify or eliminate rights to intestate succession
- Provide for each other in a manner consistent with estate plans
- Coordinate asset distribution upon death with wills or trusts
These clauses are particularly important in second marriages or when one or both parties have children from prior relationships.
5. Division of Retirement Accounts
Although federal law governs certain retirement accounts, couples can still specify how to handle them in a prenup. This may include:
- Waiving rights to a portion of retirement or pension benefits
- Allocating account balances based on contributions
- Setting valuation methods in the event of divorce
These terms should be crafted carefully, and coordination with a financial advisor is often advised.
6. Management of Joint or Separate Businesses
If one or both parties own a business, the prenup should address:
- Ownership percentages
- Management responsibilities
- Division of profits
- Business valuation methods
- Protections against forced sale or buyout
Without such clauses, the business could become subject to equitable distribution during divorce.
A Tampa prenup lawyer will ensure your business interests are protected with language that is specific, enforceable, and future-proof.
7. Income and Expense Allocation During the Marriage
While not required, some couples use their prenup to establish financial roles during the marriage. This might include:
- Who pays for certain living expenses
- How income is divided or saved
- How bank accounts are structured (joint vs. separate)
While courts won’t enforce “in-marriage” financial behavior, these clauses can reduce misunderstandings and promote financial harmony.
What Cannot Be Included in a Florida Prenup
Despite the broad discretion given to parties, certain subjects are strictly prohibited from prenuptial agreements under Florida law.
1. Child Custody and Child Support
Any provisions that attempt to:
- Predetermine custody or time-sharing
- Waive child support
- Limit parenting rights
- Assign financial responsibility without court review
…are unenforceable and against public policy.
Child-related matters are decided based on the child’s best interest at the time of divorce, not on a contract signed before the child was born. A court will always retain final say over custody and support decisions.
No Tampa prenup lawyer will ever include child support or custody clauses in a Florida agreement.
2. Personal Behavior Clauses
While popular in media portrayals, lifestyle clauses—such as those requiring a spouse to maintain a certain weight, adhere to specific moral behavior, or regulate intimacy—are almost always unenforceable in Florida.
Even if both parties agree, courts do not enforce contracts that regulate non-financial conduct within a marriage. Including such clauses not only wastes space but may raise concerns about fairness or coercion.
3. Penalties for Infidelity
While some couples wish to include “cheating clauses” that impose financial penalties for infidelity, Florida courts rarely enforce them. These clauses are considered punitive and not in line with Florida’s no-fault divorce laws.
A Tampa prenup lawyer will steer couples away from including provisions that impose consequences for personal failings or subjective judgments.
4. Provisions That Encourage Divorce
Any term that appears to incentivize divorce—such as large lump-sum payments triggered solely by divorce—can be deemed void. Courts will not enforce provisions that seem designed to create a financial reward for ending the marriage.
Prenuptial agreements should be structured to protect both parties fairly, not to punish or incentivize future behavior.
5. Unconscionable or Grossly One-Sided Terms
Even if all formalities are met, a Florida court may refuse to enforce a prenup that is shockingly unfair. For example:
- Leaving one spouse with nothing
- Shifting all debts to one party
- Waiving alimony without sufficient financial security
Florida judges evaluate fairness at the time of enforcement. If circumstances have changed drastically or the terms are unjust, the court may intervene.
A Tampa prenup lawyer ensures that the document is equitable and accounts for future changes in health, wealth, and earning capacity.
How Florida Courts Evaluate Prenups
A prenup is not immune from challenge. During divorce proceedings, a judge will look at several factors to determine enforceability:
- Whether both parties had independent legal counsel
- Whether there was full financial disclosure
- Whether the agreement was signed voluntarily
- Whether the agreement is conscionable at the time of enforcement
A Tampa prenup lawyer not only drafts the agreement but documents the process to help withstand future scrutiny.
Best Practices When Drafting a Florida Prenup
To maximize the enforceability and effectiveness of your agreement:
- Start Early – Begin the process several months before the wedding.
- Exchange Full Financial Disclosures – Transparency is non-negotiable.
- Use Separate Attorneys – Independent counsel reduces the risk of later challenges.
- Avoid Extreme Terms – Fairness is key.
- Focus on Financial Matters – Don’t include clauses that courts won’t enforce.
- Revisit the Agreement Over Time – Update as your financial lives evolve.
Working with an experienced Tampa prenup lawyer ensures your agreement checks all the boxes and protects both parties in a legally sound manner.
FAQs
Can we include a clause waiving alimony in our Florida prenup?
Yes, alimony can be waived in a prenuptial agreement, but courts may override the waiver if it results in significant financial hardship at the time of divorce.
Are cheating clauses enforceable in Florida prenups?
No. Clauses that impose penalties for infidelity or moral conduct are not enforceable under Florida law.
Can we decide child custody in our prenup?
No. Custody and time-sharing must be determined by the court based on the child’s best interest at the time of divorce or separation.
Can we decide how to divide retirement accounts?
Yes, but certain types of retirement accounts are governed by federal law and may require additional legal documents like QDROs for division.
Do both parties need a lawyer to make the prenup valid?
It is not legally required, but it is highly recommended. Independent legal counsel strengthens the enforceability of the agreement.
Can we include agreements about how we’ll spend money during the marriage?
Yes, but those clauses may not be enforceable in court. They can serve as guidelines rather than binding terms.
Can we use a prenup to waive inheritance rights?
Yes. A prenup can include waivers of spousal rights to inheritance, elective shares, and intestate succession.
Is it better to draft a postnup instead of a prenup?
Prenups are generally stronger because they are signed before marriage. Postnups are enforceable but face greater scrutiny.
Can we use an online prenup template?
Generic templates often fail to meet Florida’s legal standards. A Tampa prenup lawyer customizes agreements to your exact needs.
What happens if the court finds one clause unenforceable?
Florida courts can sever the unenforceable portion and enforce the rest of the agreement if the remainder is valid.
Conclusion: Know the Limits, Protect Your Future
Prenuptial agreements offer clarity, protection, and peace of mind. But their strength lies in their content. Knowing what can and cannot be included is critical to drafting a document that holds up when it matters most.
If you’re considering a prenup in Florida, working with a knowledgeable Tampa prenup lawyer is essential. An experienced attorney will help you structure your agreement legally, ethically, and in a way that reflects your relationship and your future.
Don’t just sign a contract—craft a blueprint for financial partnership that lasts.
The McKinney Law Group: Tampa Divorce Attorneys Providing Calm in Crisis
Divorce can feel overwhelming—but the legal process doesn’t have to. At The McKinney Law Group, we bring clarity, strategy, and calm to every Tampa divorce case we handle, helping clients move forward with strength and focus.
We support clients with:
✔ Divorce filings and legal preparation from day one
✔ Custody and parenting plans centered on your child’s needs
✔ Equitable division of property, businesses, and debt
✔ Alimony and child support calculations grounded in fact
✔ Long-term planning through legal modifications and enforcement
Reach out at 813-428-3400 or email [email protected] to begin.