Prenuptial agreements are designed to offer clarity. They divide property. They limit or eliminate alimony. They define who walks away with what if a marriage ends. But what happens when the document itself goes missing? What if one party claims they threw it away after the honeymoon, or a fire destroyed the only copy, or worse, one spouse intentionally shredded it during an argument? In Florida, the absence of a signed copy can turn a clean plan into a messy dispute.
The problem doesn’t always begin with the loss. It begins when memory fills the gap. One person says the prenup waived alimony. The other says it didn’t. Someone insists the waterfront condo was separate. The other calls it marital. Without the original agreement, the court becomes the interpreter of conflicting stories. A Tampa prenup lawyer can help avoid this scenario, but once it begins, the outcome hinges on evidence, timing, and credibility.
In this article, we’ll look closely at what Florida law says about missing or destroyed prenups. We’ll examine how a judge might handle a divorce when one party swears a prenup existed but can’t produce it. And we’ll explore what you can do—now or after the fact—to protect yourself, your rights, and the terms you thought were secure.
Can a Prenup Still Be Enforced If It’s Lost?
Yes, but it’s a challenge. Florida law recognizes prenuptial agreements only when they are in writing and signed by both parties. That’s the foundation. If you cannot produce a signed copy, your ability to enforce the agreement is significantly limited. A court may consider other forms of evidence, but the standard becomes much higher. You are no longer asking a judge to apply a clear, signed document. You are asking them to believe your version of what was in it.
Here’s what Florida courts might accept as alternative evidence:
- A scanned PDF or digital copy that shows both signatures
- A duplicate or draft that can be authenticated
- Testimony from the attorney who drafted the agreement
- Email correspondence referencing specific provisions
- A notary’s record showing the date and signatures
- Witness testimony from someone who saw the signing
Without some credible secondary evidence, the court may not enforce the prenup at all. At that point, the divorce proceeds under Florida’s default equitable distribution and support laws. That could be a radical departure from what either party expected.
A Tampa prenup lawyer would urge clients to avoid this situation by preserving multiple copies in secure places.
What Happens If Only One Person Has a Copy?
That depends. If one party has a signed copy and the other claims the prenup never existed or was revoked, the court will look at the document and surrounding evidence. The judge will ask several questions:
- Does the copy show valid signatures?
- Was the document properly executed under Florida law?
- Was there full financial disclosure?
- Did both parties voluntarily sign?
If the answers favor the agreement, the court will likely enforce it. The other party may still claim they were coerced or that the agreement is unconscionable, but they will face an uphill battle.
On the other hand, if only one spouse claims the prenup existed and cannot produce it, while the other denies its existence, the burden of proof becomes much heavier. It becomes a credibility contest.
A Tampa prenup lawyer will emphasize the importance of each party retaining their own fully executed copy. A single folder in a desk drawer does not protect either person.
What If You Accidentally Destroy the Original?
Life happens. Documents burn, flood, get lost in moves, or disappear in custody battles. An accidental loss does not invalidate a prenup. What matters is whether you can prove its existence and content.
If the document was scanned, stored digitally, or emailed to the parties, the court may accept a printed copy of that file. Ideally, the copy will include the full agreement and both signatures. Even if the original ink-on-paper version is gone, the agreement may still be enforceable if the duplicate is credible.
That said, a printout of an unsigned draft is not enough. A Tampa prenup lawyer will recommend having at least three secure copies: one for each spouse, and one kept in a safe or with an attorney.
What If One Spouse Claims They Never Signed It?
This situation can turn fast. One spouse says the prenup was signed, the other says it wasn’t. Maybe a copy exists but it lacks one signature. Or maybe a copy exists with two signatures, but one spouse now says they were forged or signed under duress.
The court will examine:
- Whether both signatures appear valid
- Whether the agreement was notarized
- Whether there are emails or texts discussing the signing
- Whether any third-party witnesses saw the execution
- Whether the alleged non-signer behaved as though the prenup was in effect
If the evidence supports voluntary execution, the judge may uphold the agreement. But if the court believes the prenup was never actually signed, it will not be enforced. The presence of a signature matters. So does the context. A Tampa prenup lawyer will create a strong paper trail to support the validity of the agreement.
What If the Prenup Was Intentionally Destroyed?
This introduces a different problem. If one party intentionally destroys a signed prenup, they may later claim it never existed. The goal is often to erase limitations on support or property rights.
The destroying party may be banking on the fact that the other spouse didn’t keep a copy. They might hope the judge will apply Florida’s default divorce laws instead of the prenup terms. It becomes a dispute of memory, motive, and credibility.
If the other spouse has no proof that the prenup existed or what it said, the court will proceed without it. This often results in full exposure to alimony, equitable distribution, and elective share rights.
This is why a Tampa prenup lawyer always recommends that both parties retain their own physical and digital copies. One spouse should never be in a position to erase the agreement unilaterally.
Can You Use Testimony Alone to Prove the Prenup’s Existence?
Testimony can be part of the puzzle, but it is rarely enough on its own. Courts require strong evidence before enforcing a prenup that cannot be physically produced.
If one spouse testifies that they signed a prenup, and their lawyer backs them up with notes or drafts, the court might take that seriously. But without a signed copy, the judge may be reluctant to enforce any specific terms.
If the testimony is consistent, detailed, and supported by circumstantial evidence—such as payment to an attorney, emails referencing the agreement, or behavior consistent with the prenup’s terms—the court may find it credible.
But if the testimony is vague, self-serving, or contradicted by the other spouse, the agreement will likely be disregarded.
A Tampa prenup lawyer can help preserve key communications and records that support the agreement’s validity even years later.
What Happens in a Divorce Without the Prenup?
If the prenup cannot be found, proven, or enforced, the court will apply Florida’s default rules:
- All marital assets will be equitably divided.
- Nonmarital assets may still be protected, but disputes often arise over appreciation, commingling, or contributions.
- Alimony will be determined based on need and ability to pay.
- Debts will be allocated equitably, not necessarily evenly.
- In the event of death, the surviving spouse may claim elective share rights.
This result may be wildly different from what the spouses intended. For example, one party may have expected a waiver of alimony and preservation of business interests. Without the prenup, they may be required to pay permanent spousal support and split business equity. A Tampa prenup lawyer can quantify these risks in advance and help clients take steps to prevent them.
What Should You Do If You Can’t Find the Prenup?
First, don’t panic. Take the following steps:
- Search your email accounts and digital files for a copy.
- Ask your lawyer or your spouse’s lawyer for a copy.
- Check with the notary public who witnessed the signing.
- Look through cloud storage, external hard drives, or safes.
- Review your old devices for downloads or scans.
- Contact the attorney who drafted the agreement, even if the firm no longer exists.
If you locate a valid signed copy—even in PDF form—you can usually enforce it. But if the document is gone and no duplicates exist, prepare for the possibility that it may not be enforceable.
A Tampa prenup lawyer can help assess the situation, gather evidence, and prepare for court if needed.
Best Practices to Avoid Losing Your Prenup
- Keep multiple copies
Each spouse should have their own signed original. A third copy should be stored in a secure location. - Digitize everything
Scan the fully signed agreement and store it in at least two secure places. Cloud storage, encrypted USB drives, and password-protected computers are all good options. - Involve your lawyer
Many Tampa prenup lawyers retain copies for years, if not indefinitely. Ask your attorney how long they will store it and how to request it later. - Avoid handwritten changes
Any amendments or side agreements should be formalized. Scribbled notes can introduce ambiguity. - Don’t rely on memory
If the agreement is important, treat it like any other critical financial document.
Can You Create a New Prenup or Postnup If the Original Is Gone?
Yes, if both spouses are willing. A postnuptial agreement can replace or reaffirm a lost prenup. It requires:
- A new written agreement
- Voluntary signatures
- Full financial disclosure
If both spouses agree to mirror the original terms, they can effectively restore the prior arrangement. But if one spouse refuses, the other cannot unilaterally recreate the agreement.
A Tampa prenup lawyer can draft a postnup that protects both parties while restoring clarity to the financial relationship.
FAQ
What if I only have a scan of the prenup, not the original?
A scanned, signed copy is often enforceable in Florida, especially if it includes all pages and signatures.
Can a Florida prenup be enforced if it’s lost but both parties agree on the terms?
Possibly. If both parties admit the prenup existed and agree on what it said, the court may honor it. But that scenario is rare in contested divorces.
Do courts ever enforce unsigned drafts of prenups?
No. Florida requires a written and signed prenuptial agreement. Drafts without signatures are not enforceable.
What if one party says they never signed the prenup?
The court will look for other evidence, including signatures, witnesses, emails, and behavior. Without proof, the prenup may be invalidated.
Does notarization help prove the prenup existed?
Yes. A notary’s stamp and record can validate the date and signatures, strengthening the case for enforcement.
Can I sue my ex for destroying the prenup?
Possibly, but only if you can prove intentional destruction and resulting harm. It’s difficult without a backup copy.
Can we make a new agreement if we lose the old one?
Yes. A postnuptial agreement can replace a lost prenup if both spouses agree to sign it.
What happens if the prenup was never signed at all?
It is not enforceable. Florida law requires both parties to sign a written agreement before the marriage.
Does a judge have to enforce a prenup if a signed copy is produced?
Not always. The judge may still review it for fairness, voluntariness, and proper disclosure.
What’s the safest way to store a prenup?
Keep a signed paper copy in a safe, a digital version in cloud storage, and another with your lawyer.
The McKinney Law Group: Tampa Prenup Lawyers for Couples Who Value Planning Ahead
Getting married is a personal commitment—your prenup is a legal one. We help Tampa couples put clear, enforceable agreements in place before the wedding so they can move forward with confidence.
Call 813-428-3400 or email [email protected] to begin your consultation.