Jacksonville Divorce Lawyer Blog

Florida recognizes the use of premarital and post marital agreements when deciding the outcome or possible outcome of a divorce. In some cases, during the marriage the parties may find themselves thinking of divorcing and may enter into a marital settlement agreement, but ultimately not have the agreement entered with the court because they are able to reconcile the marriage, this too is valid in Florida. When parties decide to divorce any agreement between the parties, whether premarital agreement, post marital agreement or a prior marital settlement agreement that allows for enforcement later if the parties reconcile, can be construed as an enforceable contract in the divorce proceedings. As a Jacksonville divorce lawyer, issues can arise regarding the enforceability of the agreement and in order to fight the document, the parties may need to hire separate attorneys, potentially leaving one of the parties needing financial assistance during the contest of the divorce. Therefore, Florida case law allows for temporary support to be awarded for temporary alimony and attorney fees.

Enforcing or contesting a premarital agreement, post marital agreement, or a marital settlement agreement may require attorney time and costs. In order for an agreement to be contested, the issues that come to question are laid out in Florida Statute 61.079. Premarital agreements are enforceable unless it can be shown that one or more of the following occurred:

1. The agreement was not entered into voluntarily by both parties;
2. The agreement is the result of fraud, duress, coercion or overreaching (e.g. Hiding a bank account with thousands of dollars.)
3. The agreement was not done in good conscience and before the signing:
a. There was not a true disclosure of assets of debts;
b. There was no waiver of such a disclosure by either party; and
c. The other party could not have known of the hidden asset or debt.

The same provisions would be necessary in any agreement such post marital or marital settlement agreements. The court ultimately has to decide whether an agreement was reach in an unconscionable manner.

The real trick to most agreements is that the parties have to be in full disclosure of assets and liabilities so that they know what is being agreed upon. The reality is that full disclosure leads the parties to more open conversation about the future wants and needs and the ability to provide for such. Not doing so would lead the possibility of entering in an agreement that benefits only one party and ultimately leaves the other in a worse position than had the agreement not been signed. Communication and understanding of a contract and its related terms goes directly the enforceability of said contract and helps in future litigation. If the parties do not meet all criteria for such an agreement, then the agreement may be put aside and the court could make the parties proceed as if an agreement never existed. Again, agreement cannot waive a party’s right to spousal support and attorney fees that may be necessary temporarily while the validity of the agreement is contested in the Court. However, both parties can work at reducing the length of time necessary to contest such agreements.

Paul McCartney was married on Sunday to the independently wealthy American, Nancy Shevell. A marriage, that by all accounts seems happy, was hopefully preplanned with a prenuptial agreement, protecting both from future marriage mishaps, such as divorce.

Paul McCartney’s wealth far exceeds his iconic role as one of The Beatles. It was exploited in his publicized divorce from Heather Mills, in 2008, that his wealth is over $800 million dollars and consists of music royalties, rare paintings, real estate and the like. Nancy Shevell’s wealth includes business interests and other wealth endeavors that make sense to protect.

A prenuptial agreement is beneficial when one or both parties have wealth because it protects certain assets from becoming “marital” and divisible if the marriage were to end in divorce. Protecting those assets is not unromantic, simply a smart business decision by both parties.

Florida prenuptial agreements can be drafted to protect both parties, regardless of their independent wealth. If you are interested in a prenuptial agreement, then you should contact a Florida lawyer to assist you in the premarital planning.

Planning for Florida divorce before your marriage can be difficult emotionally. When deciding to use a prenuptial agreement it is important to understand that you are planning for your life together in a way that helps divide assets before and during the marriage.

Separating assets, especially if you marry later in life, can be important if you both feel that your stuff should be yours and not your spouse's upon marriage. However, it also means that you have to think differently when entering the marriage because you do not want to use marital funds in premarital (non-marital) accounts because it mucks the water if anything were to divide you later. Non-marital assets are those things that have been purchased prior to the date of marriage, including homes, stocks, etc. However, if you use marital funds (income to you or your spouse) to increase the value of those assets, then the increased value may be considered a marital asset. When creating a prenuptial agreement it is important to know "today's" value of the assets so you have a reference point of premarital value and marital value if the marriage were to dissolve.

If you are interested in a prenuptial agreement, you should speak with a family law attorney to understand your rights and options and how to set-up the agreement in the best possible way.

Prenuptial agreements are enforceable in Florida if all provisions are met, especially the full disclosure of assets and liabilities to each party. In a divorce, full disclosure is necessary and required by Florida law. In developing a prenuptial agreement, the same is true because both parties have to have a full snapshot of the other party's assets and liabilities before agreeing to the financial breakdown in case divorce was eminent. A full premarital financial disclosure is actually a tool that can be helpful in a relationship because both parties have an opportunity to better understand what they are walking into at the end of the aisle. A marriage is based on the joining of two people, but also the joining of their, "stuff." So, having a full picture is helpful in knowing what challenges and expectations may be ahead for the couple.
Full disclosure of assets means that you are both providing bank statements, investment statements, trust holdings, properties, etc. Both parties need a clear understanding of what the other has so that the agreement can be drafted to protect them both and not just one party. A prenup is not intended to be a body of armor for the party with the most, but is designed to make certain that if the marriage were to fail, that there are contentions in place for how to divide marital assets and decide which assets are actually marital and nonmarital.
Though it may feel like planning for the marriage to fall apart, the truth is that is actually helps people to plan their life together effectively because it brings issues to the forefront where they may have never otherwise been addressed until an argument occurs.

Continue reading "Prenups in Florida Require Full Financial Disclosure" »

Is a Pre-Marital - Pre-Nuptial Agreement Always Enforceable in the State of Florida? The answer to this question like many - "It depends."

The sad reality in our society is that most marriages will end in divorce. The United States currently has the highest divorce rate at roughly 50 percent for first marriages and almost 70 percent for remarriages. Fortunately, a premarital agreement can bring predictability and security to the circumstances surrounding settlement of your personal affairs following a marriage or remarriage.

The Florida Statutes define a “premarital agreement” as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. Such agreements may also be referred to as Florida antenuptial or prenuptial agreements, and informally as Florida prenups. The couple planning to be married decides how important financial matters will be resolved in case of divorce, separation or death.

Florida's Uniform Premarital Agreement Act includes specific requirements needed for a premarital agreement to be valid and enforceable. First, the agreement must be in writing (a court will not enforce any verbal agreements between parties). Second, both parties must sign the agreement. Lastly, the agreement is valid without either party giving up any rights; the act of marriage is sufficient enough to create a valid agreement.

However, Florida law provides multiple ways in which a premarital agreement can be attacked or challenged. Examples include if either party can prove they did not sign the agreement voluntarily, due to fraud, duress, or coercion, or that the terms of the agreement were very unfair and one party was not provided fair access to the other party’s financial situation. For more information on this topic, see the Florida Statutes

Continue reading "Is a Premarital / Prenuptial Agreement Always Enforceable in the State of Florida?" »

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

What do shared and sole parental responsibility mean when going through a divorce or family law action in Florida? Parental responsibility gives parents the right to make decisions they feel are in the best interest of their children, such as the following: public or private schooling; participating in sports; seeing grandparents; etc. When a family is divided through divorce or circumstance (i.e. a paternity action), then there becomes a question of whether one parent should get to make those decisions or if the responsibility should be shared equally by the parents (e.g. sole parental responsibility or shared parental responsibility).

In most cases, the Court will award shared parental responsibility to the parents involved in the litigation. The idea is that while the parents may not see eye-to-eye on all things, they should be able to come together for determining the decisions that go to raising their children since they chose to have children together. A parenting plan can establish certain guidelines that will be enforceable by the Court if the parents are unable to agree on certain things and there can a provision in the final order for the parents to attend mediation if they cannot reach a decision together.

In some cases, one party may continuously make decisions that have been harmful to the children (i.e. excessive drinking). If there has been a pattern of behavior of the parent not caring for the children or a parent not making decisions in the best interest of the children, then the other parent may request or petition to the court that the other parent not get to exercise parental responsibility on the bigger decisions regarding the children (i.e. private or public schooling).

If you are seeking to get sole parental responsibility, then you should speak with a lawyer that works in family law matters of this magnitude. Understanding your rights and options is best when moving forward with your divorce or paternity action.

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

If you are divorcing in Florida with assets purchased before marriage, Florida law recognizes them as premarital assets and those items typically remain with the person that brought them into the marriage. In Florida family law cases, clients often wonder which party will get the engagement ring.

The ring is considered a premarital gift and it remains with the wife upon the dissolution of the marriage as in Greenberg v. Greenberg, 698 S.2d 938 (Fla. App. 1997)). The value of the ring, given that it is premarital, does not go into the pot of the value of the couple's assets. The ring is not considered part of the assets that are equitably divided per Florida law regarding marital assets.

For those with an engagement ring that was a family heirloom, the same ruling applies because the ring is considered a premarital gift regardless of its origin. However, if you intend otherwise, then that premarital agreement should be put in writing to assure the return of the ring if that is the desire of both parties at the time the ring is given.

Florida Statute 61.079 governs premarital agreements in Florida.The definition of a premarital agreement per the statute is "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage". The agreement must be in writing and signed by both parties and is enforceable with no other consideration than the marriage itself.

The parties to a premarital agreement can contract with respect to property and its disposition, spousal support, the making of a will or trust to carry out the agreement, benefits from life insurance policies, the choice of law governing the agreement, and any other rights not in violation of law or public policy. Premarital agreements can be amended after the marriage with the consent of both parties.

Whether you need a premarital agreement in Florida is a personal decision. There is no right or wrong answer to the question posed in this article. However, you should take a careful look at your particular situation to decide if you need one. Some factors to consider are:
1) Disparity in income between the parties,
2) Whether one spouse has a number of family heirlooms that are valuable or a prior inheritance,
3) Prior marriages and debts,
4) Whether you are getting married for love or necessity (ie. unplanned pregnancy or immigration issue),
5) Extensive premarital assets including retirement benefits, or
6) One spouse owns a business and doesn't want to risk the other spouse getting an interest in a divorce.

Failing to plan in any of the above scenarios could cost you a bundle should you go your separate ways.

Continue reading "Do I Need A Prenuptial Agreement In A Florida Divorce?" »

It's true. Prenups aren't just for rich people or celebrities anymore. Divorce is more common now than it was twenty years ago. With divorce being more common, more married couples are experiencing the mental and financial pain of divorce. It's expensive to get divorced even when you may not have much to argue over. In fact, most of the couples that come through my office in Northern Florida are quarreling over debt as opposed to assets. Because of the big downturn in the economy in the last few years and the rise in unemployment, the only thing married couples have to divide up is the marital debt.

This is a disturbing trend but it may be something that can be avoided with a premarital agreement. It may also be prevented by some planning by the individuals prior to saying "I do".

Continue reading "Prenups Are A New Reality In Florida Marriages" »

According to the latest media reports, Tiger Woods paid his ex-wife Elin $110 million in their recent scandal-plagued divorce. Allegedly, their prenup was for much less than this, but prenups are broken every day and for a number of different reasons.

The primary reason that prenuptial agreements are breached include:

• Coercion, duress, undue influence or bad intent
• Agreement was verbal, not written
• False or incomplete information
• Ineffective or absence of legal counsel
• Documents were not signed or witnessed properly
• Unconscionable provisions such as denial of child support
• Acute financial imbalance prior to or after the marriage

If a prenup is written unfairly so that it favors one party much more than the other, a judge may find it to be unenforceable simply on the grounds of unfairness.

The most common way that prenups are breached is because one of the parties failed to disclose a significant asset. Couples who are preparing a prenuptial agreement should include the following items:

• All sources of income
• Real estate, including timeshares
• Inheritances and gifts
• Bank accounts, including offshore
• Investment accounts
• Trusts
• Partnerships
• Businesses
• Life insurance policy benefits
• Retirement accounts

A recent poll conducted by the American Academy of Matrimonial Lawyers (AAML) reveals that prenuptial agreements have increased in popularity over the past five years, especially among women.

Approximately 73 percent of matrimonial lawyers polled said they have seen an increase in requests for prenuptial agreements; 52 percent said they have experienced an increase in women making the request.

The poll also found that 36 percent of attorneys surveyed said they had seen an increase in the inclusion of pensions and retirement benefits in prenuptial agreements, signaling a shifting change in the importance of how these assets are viewed in light of the current economy.

As noted by AAML president Marlene Eskind Moses, prenups are becoming more recognized as a good way to protect assets, especially for those marrying for the second, third or fourth time and for those marrying later in life who have accrued significant assets.

In addition, she noted, some of the new prenup activity can be attributed to the bad economy, which has made people more acutely aware of their financial condition and what could happen to it in the event of a divorce. Women, especially, want the additional security that prenups provide to ensure they do not become impoverished as the result of a divorce.

Profiled in a recent New York Times story, Allison Brooke Eastman learned another way that debt can devastate. Once her fiancé discovered that she had more than $170,000 in student loan debt, he broke off the engagement.

These days, it is not uncommon for people to bring significant debt to a relationship. And, as illustrated by Ms. Eastman’s story, it is also common for couples to fail to address debt issues prior to entering marriage. An advantage of prenuptial agreements is that they force the discussion so that “unpleasant” issues are brought to the forefront and dealt with prior to marriage.

People who bring debt to a marriage – whether it is one or both of them in the relationship – should decide how that debt will be treated during the marriage as well as in the case of a divorce. From a legal standpoint, it is likely that any debt one spouse brings to a marriage would remain his or hers alone after a divorce. But would the other spouse be entitled to a “refund” of monies he or she spent to pay down the other’s debt? What if the debt-ridden spouse becomes incapacitated and can no longer work – or wants to quit their job to stay home and take care of the children? How is the debt paid then? These are all valid questions that can and should be addressed as part of a prenuptial agreement discussion.

Whenever a celebrity divorce is in the news, people always want to know two things: was there a prenup? And will it hold up in court?

Prenuptial agreements are challenged in court all the time and there are numerous cases where the courts have ruled against a prenup. There are even cases where egregious marital misdeeds have enabled aggrieved spouses to successfully negotiate larger payouts (hello, Tiger Woods) than their prenups specify.

There are a number of other reasons why a court may disregard a prenup, including:

• If the prenup was signed under duress. Prenups should be negotiated well in advance of the wedding, not sprung on the bride or groom the day before the ceremony.
• If one spouse did not have legal representation. Both spouses should have their own attorneys participate in drawing up a prenuptial agreement.
• If one spouse misrepresents assets or liabilities.
• If one spouse was incompetent or incapacitated at the time the prenup was signed, either by being under the influence of alcohol or drugs, or mentally incompetent.
• If the prenup limits future child support or custody rights.
• If the prenup does not provide for any spousal support.

Most challenges to prenups involve spousal support, generally because the couple accumulated many more assets during the marriage and the prenup no longer takes that into account.

A visit to your family law attorney to update your prenup via a postnuptial agreement may help your agreement survive a challenge in case of a divorce down the road.

According to a number of Internet news reports, TV star and producer Kelsey Grammer has broken the golden rule in Hollywood Marriage 101 by not having a prenuptial agreement in place when he married wife Camille 13 years ago.

The Grammers are divorcing and the former “Frasier” and “Cheers” actor could be looking a huge financial loss. The actor allegedly tried to declare his earnings from “Frasier” as separate property; however, this can only apply to his earnings prior to his 1997 marriage to the former Playboy model. Which means that the earnings from seven seasons of the show – at a reported $1.6 million per episode during the last season – as well as syndication earnings could be up for grabs.

The couple split due to “irreconcilable differences” in July. In her filing, Camille asked the court to award her with primary physical custody of their two children -- an 8-year-old daughter and a 5-year-old son – and grant visitation rights to Kelsey. She has also petitioned the court for spousal support.

Kelsey has requested joint physical custody of the children and is also asking the court not to award any spousal support to his estranged wife.

Continue reading "No Prenup in Kelsey Grammer Divorce?" »

Premarital agreements fall under Fl. Stat. sec. 61.079. Pursuant to this statute, a premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself. The agreement becomes effective upon the marriage of the parties. The parties to a premarital agreement may contract with respect to:

1. The rights and obligations of each party regarding any property.
2. The right to buy, sell, transfer, abandon, exchange, mortgage, encumber, dispose of, or otherwise manage and control property.
3. The disposition of property upon separation, divorce or death.
4. Establish, modify, waive or eliminate spousal support.
5. Make a will or trust.
6. The choice of law concerning the construction of the agreement; and
7. Any other matter including the parties' personal rights and obligations, not in violation with Florida Law or public policy of the state.

Contact a Florida Family Law Attorney for legal representation in drafting your premarital agreement.