What Can’t Be Included in a Florida Prenuptial Agreement?

A prenuptial agreement can be a smart and responsible way to clarify financial rights and obligations before marriage. In Florida, prenuptial agreements are governed by the Florida Uniform Premarital Agreement Act. While these agreements can cover a wide range of financial issues, not everything is fair game. Florida law imposes clear limits on what you can—and cannot—include in a prenup.

Whether you’re entering into a marriage or considering your rights during a divorce, it’s important to understand what provisions are not enforceable under Florida law. Including unlawful or unenforceable terms could invalidate part—or all—of your agreement. Here’s what Florida law says cannot be included in a prenuptial agreement.

Child Custody and Time-Sharing Terms

Florida law prohibits couples from predetermining child custody or time-sharing arrangements in a prenuptial agreement. According to Florida Statutes § 61.13, all decisions involving minor children must be made in accordance with their best interests at the time of the divorce or custody dispute, not in advance.

This means that no matter how thoroughly you and your spouse try to outline future parenting responsibilities, those provisions will not be enforceable in court. Judges retain full discretion to determine time-sharing and parental responsibility based on the child’s current needs and circumstances—not the preferences you expressed years earlier in a prenup.

Child Support Obligations

In a similar vein, Florida Statutes § 61.30 provides the state’s mandatory child support guidelines. These guidelines are used to calculate support based on the income of both parents, the number of overnights each parent has, and the specific needs of the child.

You cannot waive or reduce future child support obligations in a prenuptial agreement. Any such provision will be disregarded by a Florida court. Child support belongs to the child—not the parents—and cannot be negotiated away. Only a judge can determine the appropriate level of support, and only at the time of need.

Provisions That Promote or Encourage Divorce

A prenuptial agreement in Florida cannot contain any provision that appears to promote, encourage, or reward divorce. For instance, if the agreement gives one spouse a substantial financial benefit only in the event of divorce, a court might find that the provision violates public policy.

While prenups can and often do address what happens in the event of divorce, those provisions must not incentivize divorce. The goal of the agreement must be to protect both parties’ interests, not to create a financial motive for ending the marriage.

Personal Lifestyle Terms

Florida courts will not enforce provisions in prenuptial agreements that deal with non-financial or personal aspects of the marriage. These may include:

• Agreements about household chores
• Weight or appearance requirements
• Frequency of sexual relations
• Parenting or religious practices
• Restrictions on where a couple lives

These lifestyle provisions are considered unenforceable because they attempt to regulate personal conduct within the marriage—something courts will not police. Including them in your agreement may not void the entire prenup, but it could undermine the seriousness of the document and create potential challenges during enforcement.

Temporary Alimony Waivers

Although you can waive permanent alimony in a Florida prenup under Florida Statutes § 61.079(4)(a), waiving temporary alimony (pendente lite) is far more complicated. Florida courts have ruled that spouses cannot contract away their right to temporary support needed during the divorce process.

If one spouse lacks sufficient income during the litigation period, the court may award temporary alimony to ensure basic living needs are met, even if the prenup attempts to waive it. Courts are especially reluctant to enforce waivers that would leave one spouse destitute during the proceedings.

Unconscionable Agreements and Lack of Disclosure

Under Florida Statutes § 61.079(7), a prenuptial agreement may not be enforced if it was unconscionable at the time it was signed, and the disadvantaged spouse:

• Was not provided a fair and reasonable disclosure of the other party’s property or financial obligations,
• Did not voluntarily and expressly waive the right to disclosure in writing, and
• Did not have—or could not reasonably have had—adequate knowledge of the other spouse’s finances.

Even if full disclosure is made, Florida courts may still invalidate provisions that are grossly unfair or that would result in one party being financially devastated. Courts can refuse to enforce any agreement that shocks the conscience due to severe disparity in bargaining power or outcome.

Illegal or Against Public Policy Terms

Any provision in a prenup that violates Florida law or public policy will be struck down. For example, you cannot:

• Waive criminal prosecution rights
• Contract for illegal behavior
• Impose religious restrictions
• Restrict a spouse’s ability to remarry
• Compensate a spouse for sexual services

These types of clauses are invalid on their face. Florida courts have broad discretion to invalidate provisions that violate public policy or attempt to regulate matters better left to personal conscience or the criminal code.

Fraud, Duress, and Coercion

A prenuptial agreement must be entered into voluntarily, without fraud, duress, or coercion. If a spouse was pressured into signing the agreement or misled about the terms or the other spouse’s finances, a court may declare the agreement unenforceable.

For example, signing a prenup just days before the wedding, especially without legal counsel or time to review, could be used as evidence of undue pressure. The same applies if one party concealed debts or significant assets. Transparency and fairness at the time of signing are essential.

Retirement Benefits Under Federal Law

While Florida law generally allows prenups to waive rights to retirement accounts and pensions, some types of retirement benefits are governed by federal law, such as the Employee Retirement Income Security Act (ERISA). ERISA often requires a post-marriage waiver to effectively waive survivor benefits for pensions and certain 401(k) plans.

This means that even if your Florida prenup waives rights to a retirement account, that waiver may be unenforceable unless it’s followed by a spousal waiver after the marriage.

Inheritance and Elective Share Waivers

Under Florida Statutes § 732.702, a prenuptial agreement can waive a surviving spouse’s rights to:

• An elective share of the estate
• Pretermitted spouse inheritance
• Homestead rights
• Family allowance
• Exempt property

However, the waiver must be in writing and must meet strict statutory requirements. In some cases, courts have held that such waivers must also be “knowing and intelligent,” particularly if the result deprives the surviving spouse of significant rights or property. Always ensure these waivers comply not only with Florida law but also with proper financial disclosure and procedural fairness.

Sarasota, Bradenton, Lakewood Ranch, and Venice, Florida Prenuptial Agreement Lawyer

Identifying what can and cannot be included in a Sarasota, Bradenton, Lakewood Ranch, or Venice, Florida prenuptial agreement requires careful legal drafting and a clear understanding of the law. Getting it wrong can result in critical provisions being unenforceable—or worse, the entire agreement being invalidated. To get experienced guidance and ensure that your legal rights are protected, contact the Law Offices of Matthew Z. Martell, P.A. prenuptial agreement lawyers by calling (941) 556-7020 or contacting us online for a free consultation.