Yes, technically, you can write your own prenup in Florida, and it may be enforceable as long as you follow all of the other state requirements. However, drafting your own prenup in Florida can be a dangerous game (and that’s true for any state). This is because understanding what exactly is required of a Florida prenup to ensure it is valid is most likely a job for a legal professional. Let’s dive into why writing your own prenup could be “dangerous.”
Can I write my own Florida prenup?
Technically, yes, you can write your own prenup in Florida. There is no law that says you can’t. However, it is important to note that prenups are contracts that must comply with Florida law to be enforceable. If your prenup does not meet the legal requirements, it may not be enforceable in court. This is why it is highly (highly) advised that you seek out legal help, whether through an attorney or a state-compliant platform like HelloPrenup.
The good news is that HelloPrenup offers Florida attorneys that you can hire to review your prenup! You can do this directly through the HelloPrenup platform.
What makes a prenup valid and enforceable in Florida?
If you are writing your own prenup, you need to make sure that it complies with Florida prenup laws. Let’s dive right into what makes a prenup valid and enforceable in Florida:
- The prenup must be in writing
- Both partners must sign the agreement
- Both partners must enter into the agreement voluntarily and without fraud or duress
- Each party must have “sufficient time” to seek out an attorney if they want one
- The prenup itself must be reasonable when signed or when enforcing it
- Both partners must fully disclose their finances (assets, debts, future inheritances)
- The subject matter of the prenup must not be against public policy or other laws
- An alimony waiver would not be enforceable if waiving it would cause one person to be eligible for public assistance
- Florida attorneys typically recommend signing the agreement at least 10-30 days before the wedding, although this is not a strict requirement
- See Fla. Stat. § 61.079 for the FL statute on prenups
If any of the above criteria are not met, then the prenup is subject to being thrown out by a court, which is why it is crucial to seek legal help when creating a prenup because it can be difficult for a non-lawyer to make sure all of the above are properly done.
What can you put in a Florida prenup?
What about the contents of the prenup? What can you actually put into a Florida prenup? A prenup may include the following:
- Separate property versus marital property in the event of divorce
- How premarital and marital debt should be handled in divorce
- Alimony waivers or modifications
- Lump sum clauses (also known as equalization clauses)
- How property should be divided upon death
- Confidentiality
- Embryo disposition
- How to handle engagement rings upon divorce
- Sunset clauses (i.e., expiration dates on the prenup)
- Whether or not alternative dispute resolution is required
- Whether or not one spouse is required to maintain health and life insurance for the other person
- Pet “custody”
- Whether one person may remain in the primary residence upon divorce for a set amount of time
- See Fla. Stat. § 61.079(4) for the FL statute on what content may go into a prenup
As you can see, there are many things that you can include in a prenup, and without a lawyer, it may be difficult to understand what is “allowed” under each category. For example, what are the limits around alimony waivers? Well, they can easily be thrown out if not done properly in Florida.
What should you NOT put in a Florida prenup?
A prenup should not include provisions that are illegal or against public policy. A Florida prenup may also NOT include provisions about child support or child custody. Another thing to avoid would be adding overly unreasonable clauses. This one can be more difficult to discern as a non-lawyer because what is “reasonable” isn’t necessarily a straightforward black-and-white answer.
Can a Florida prenup be challenged in court?
Yes, a Florida prenup (or a prenup in any state) can be challenged in court and ultimately thrown out if the court finds it invalid and/or unenforceable. If one party believes that the prenup is unenforceable or invalid, they can challenge it during a divorce or separation proceeding. The court will then decide whether or not the prenup should “stand.”
Here are some ways that a person can challenge a Florida Prenup:
- Lack of proper formalities: The prenup was not in writing or not signed.
- Lack of reasonableness: The prenup includes provisions that were unreasonable at the time of signing it or have become unreasonable at the time of divorce.
- Lack of voluntary consent: If one party was coerced or forced into signing the prenup, it might be considered invalid.
- Lack of full disclosure: If one party did not fully disclose their assets, debts, or future inheritances, the prenup may be considered invalid.
- Against public policy or unlawful: If the prenup includes provisions that are against public policy or against the law. (This is where adding child support/child custody clauses may fall).
If any of these things are brought to a court, a court will then look at the prenup and the circumstances and make a decision–the prenup either stands or gets thrown out.
Pros and cons of writing your own Florida prenup
As you can see, there are both upsides and downsides to writing your own prenup in Florida.
Let’s start with the pros of writing your own prenup:
- Cost savings: Of course, number one is that it’s the cheapest option. Writing your own prenup can save you money on attorney fees.
- Control: Writing your own prenup gives you more control over the terms of the agreement. (Although HelloPrenup also offers this same level of control, with the reassurance of state compliance).
- Flexibility: A DIY prenup allows you to write your prenup on your own time, without the constraint of an attorney’s schedule or other outside factors.
Cons of writing your own prenup:
- Lack of legal compliance: Prenups must comply with Florida law to be enforceable, and it can be difficult to ensure that you are meeting all of the legal requirements without the help of an attorney or HelloPrenup.
- Not understanding all of your options: Without using legal resources such as HelloPrenup or an attorney, you may have no idea what your options are. You may not even know that a certain clause exists that would be super useful for you; however, by using an attorney or HelloPrenup, all of your options will be provided to you.
- Time spent researching: Prenups can be complex legal documents, and it can be difficult to ensure that you are covering all of the necessary issues without the help of an attorney. This can lead to frustration and a lot of time spent researching.
- Lack of peace of mind: Knowing how complex prenups are, when you create your homemade prenup, you may not have the same peace of mind that your assets are protected, knowing that there’s a higher chance your prenup can be challenged and thrown out in a divorce.
- Getting taken advantage of: Without legal advice, you may not know what your rights are and what you should/should not include in the prenup. This can lead to an unfair outcome that you may have to live within the event of a divorce.
Common mistakes to avoid when writing your Florida prenup
If you’re still set on writing your own prenup, there are several common mistakes you should learn about and avoid. Some of these include:
- Not fully disclosing finances (assets, debt, inheritances)
- Including provisions that are against public policy
- Including provisions that are against the law (this includes adding clauses related to child support/child custody)
- Creating a prenup that is unreasonable or likely to become unreasonable in the future
- Not putting the prenup in writing
- Not signing the prenup properly
- Forcing your partner to sign the prenup
- Signing the prenup too close to the wedding day and not giving your partner a reasonable opportunity to hire a lawyer if they want one (though they don’t have to hire one)
As you can see, there are a lot of “landmines” you could step on while making a prenup without legal help. This is why it is highly (HIGHLY) recommended that you use an attorney and/or HelloPrenup for your prenup needs. The good news? HelloPrenup has the best of both worlds: you can hire an attorney AND use HelloPrenup all within one platform!
The bottom line on writing your own Florida prenup
In Florida, while it is possible to write your own prenup, it is not recommended to do so because there are many pitfalls that can render your agreement unenforceable. It’s best to hire an attorney or use a state-compliant platform like HelloPrenup to ensure that your prenup complies with Florida law and covers all of the necessary requirements.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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