Articles Posted in Prenuptial agreements

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Mental incapacity plays an important role in many different family law matters. Cases alleging mental incapacity of one of the spouses can become complicated and adversarial. Because you cannot actually get into someone’s head and know what they were thinking at a particular point in time, gathering and presenting evidence of mental incapacitation can be complicated. The following are some examples of when mental capacity may be at issue in a Florida family law case.

Marriage

In order for a marriage to be valid, both individuals must be of sound mind, must understand the nature and effects of getting married, and must be mentally capable of agreeing to the marriage. Simply because one person has a mental condition does not automatically render them incapacitated for marriage purposes, but if a court decides one spouse did not have the capacity to agree to a marriage, that marriage will be deemed invalid.

Prenuptial Agreements

If you sign a premarital agreement, you must have the mental capacity to understand the provisions of the agreement and the effects of the agreement should you get divorced in the future. If you did not have the ability to understand what you were signing at the time you signed, the agreement may be declared invalid.

Divorce

Mental incapacity is important in Florida divorce in more than one way. First, a Florida statute permits a spouse to get a divorce if they have been djudged to be mentally incapacitated for at least three years prior to the divorce filing. In such cases, the individual’s guardian or representative family member will be notified and will be able to appear in court on his or her behalf.

Additionally, Florida family courts will not grant a divorce that was filed by a mentally incapacitated person who does not understand the effect of a divorce. For example, a Palm Beach County judge recently ruled that an 87-year-old man with dementia could not be granted a divorce. His wife argued that his children are manipulating him for financial purposes to pursue divorce and that he would not actually want a divorce if he understood what was happening. The court agreed and dismissed the divorce case.

Child Custody

If one parent is mentally incapacitated, they will likely be unable to properly care for a child. Therefore, in such cases, the court may determine that it is in the best interests of the child to award full custody to the other parent or only provide for limited supervised visits with the incapacitated parent.

A Qualified Boca Raton Family Law Attorney Can Help

Having the requisite mental capacity is only one of many potential issues in marriage, divorce, and other family law matters. Each case will have unique legal questions and you always want to make sure you have an attorney handling your case who understands how to identify and address any potential issues. If you have any type of family law matter, you should not delay in discussing your situation with Boca divorce lawyer Alan R. Burton today. Call 954-229-1660 for a free consultation.

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Celebrity divorces can be difficult, not only because of extensive media coverage but also because one or both of the spouses may have a significant amount of wealth. In one recent divorce, a wife is attempting to obtain a large portion of her husband’s $85 million fortune as well as a large amount of additional ongoing support.

The wife of songwriter, singer, and successful music producer Timbaland filed for divorce at the end of June. She previously filed in 2013 though that case was dismissed as they attempted to reconcile. Apparently that attempt at reconciliation was not successful, as now she has not only filed again but requested many different types of financial support, including the following:

  • Child support for both their biological daughter and her son from a prior relationship
  • Support for private schools, summer camps, and vacations
  • Life insurance
  • Lump sum financial award
  • Spousal support while the divorce is pending
  • Rehabilitative alimony
  • Permanent alimony
  • Attorney’s fees

Because of the amount of money that she is seeking, it is likely that the couple did not sign any type of premarital agreement limiting the support she would receive in the event of divorce.

The amount of support she may be granted will depend on many different factors. For example, reports indicate that she does not have assets of her own, so she has no way to immediately support herself and her family. It will also depend on the amount of money Timbaland actually earned during the marriage and how much will be considered separate property if it was amassed prior to their wedding in 2008. The division of property will also depend upon state laws because, unlike Florida’s equitable division law, California is a community property state and has different methods of property distribution in divorce.

In regard to child support, Timbaland will likely be required to provide a substantial amount for their biological daughter. His wife claims that, even though he is not the biological father of her older child, Timbaland claimed the child “as his own” both privately and publicly. It remains to be seen whether or not the family court will find enough evidence to require Timbaland to provide support for a child that is not legally his own.

Overall, it seems that the divorce will involve complex issues and may require extensive negotiation and court intervention to settle them.

Discuss Your Case With an Experienced Boca Raton Divorce Attorney Today

Any divorce can have legal issues arise. However, divorces involving parties with significant assets, children, and no premarital agreement can become particularly complicated and costly. If you have a substantial financial fortune, it is imperative that you seek help from a divorce lawyer who knows how to handle this type of case. Boca Raton family law attorney Alan R. Burton has extensive experience handling all types of divorce cases, including those with a lot of money at stake. Mr. Burton will protect your best interests, so call today at 954-229-1660 for help.

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87-year-old Martin Zelman of Palm Beach has filed for divorce from his wife of 15 years, though now Florida family courts will have to decide whether or not he truly wants one. Last year, another Florida judge declared Zelman mentally incompetent and appointed his son and daughter as his guardians. With this declaration, Zelman lost the right to make most decisions for himself, however, he retained the right to file legal claims, which allowed him to file a divorce petition. His wife, 80-year-old Lois Zelman, is challenging the validity of the divorce filing as she claims Martin does not, in fact, want to get divorced. She asserts that his three children are behind the divorce and that they have purposefully isolated Martin and fabricated stories that she abused him.

If Lois remains married to Martin until his death, she would retain access to their homes in Palm Beach and New York City, their cars, their club memberships and art, and will receive an estimated $10 million. If the judge grants the divorce, Lois will receive none of Martin’s $50 million dollar estate based on a prenuptial agreement they signed prior to marriage and his children will instead inherit all of his wealth. The judge stated that he will have to determine whether or not each side is simply fighting over money or whether they truly have Martin’s best interests in mind. Each side, of course, claims the case is not about the money.

Divorce Involving an Incapacitated Person in Florida

Florida has a law in place intended to protect mentally incapacitated individuals whose spouses try to divorce them while they cannot defend their rights. The statute requires the filing spouse to wait until the incapacitation has lasted for at least three years before a court can grant a divorce. However, the incapacitated person is generally not the one who is seeking the divorce in the first place.

Even though the probate judge last year found that Martin Zelman had the capacity to file legal claims, the family court could decide that Martin is an incompetent witness, which would halt the divorce proceedings. If the court finds that he does not have the adequate capacity to get divorced, the judge could also potentially make them wait at least three years under the law. It is not clear what this waiting period would accomplish in this particular case, however, as Lois does not want to get divorced. We will have to wait and see what the court decides at an upcoming hearing.

An Experienced Boca Raton Divorce Attorney Can Help You With Your Case

Divorce cases can have many unique issues and you always want to have a lawyer handling your case who thoroughly understands Florida divorce laws and how they apply to your unique situation. Family law attorney Alan R. Burton knows how to handle even the most complicated divorce cases and will always zealously defend your rights. If you are facing divorce or any other type of family law matter, please call our Boca Raton office today at 954-229-1660 to discuss how we can assist you.

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Paige Laurie, the granddaughter of Walmart founder James “Bud” Walton, married Patrick Bode Dubbert in a reportedly over-the-top ceremony in 2008. Prior to the marriage, the couple signed a premarital agreement that stated, should the marriage end, Laurie agreed to pay $30,000 per month in spousal support for half of the time the marriage lasted. Last spring, after nearly six years of marriage, Laurie filed for divorce.

Though Laurie has reportedly agreed to abide by the spousal support guidelines agreed upon in the premarital agreement, Dubbert has been trying to invalidate the prenup. While it may seem illogical to fight against an agreement that awards you nearly $1.1 million, Dubbert apparently believes that he requires substantially more support than previously agreed upon. Specifically, Dubbert has filed a lawsuit that requests support for the following “necessities” every month:

  • $40,000 – $60,000 for a rental home
  • $80,000 for entertainment
  • $30,000 for vacations
  • $10,000 for furniture
  • $6,700 for a personal chef
  • $5,000 for clothes purchases
  • $4,000 for a personal driver
  • $2,500 for a personal trainer
  • $1,000 for a personal stylist
  • $2,500 for charitable donations

These are only some of the necessities Dubbert cites, as the total amount amount adds to about $240,000 per month after taxes ($400,000 before taxes). Dubbert argues that because he no longer works for Laurie’s company, he requires such support to find a new way to support the lifestyle to which he has become accustomed.

Can a premarital agreement be invalidated?

Like any other type of contract, a premarital agreement has certain requirements in order to be enforceable. If such requirements are not met or other certain circumstances exist, it may be possible for one spouse to invalidate the agreement. The following are examples of reasons a prenup may be invalid:

  • One party signed under duress or coercion
  • One party did not have independent representation by an attorney
  • There was not full disclosure of a party’s financial situation
  • Terms are ambiguous or unconscionable
  • Promises made in the agreement were not kept
  • The agreement was not in writing

Specifically, Dubbert claims that he had originally retained legal counsel to review and negotiate the prenup but that Laurie had convinced him not to use the attorney due to a lack of experience with high-asset marriages. Dubbert also claims that he signed the premarital agreement under duress since Laurie’s parents allegedly presented him with an ultimatum that they would not pay for the wedding expenses if he did not sign. Whether or not these reasons will be enough to invalidate part or all the prenuptial agreement remains to seen, and even if the spousal support portion is invalidated, it seems unlikely that a court would approve Dubbert’s extravagant requests.

Contact a Boca Raton family law attorney today to schedule a free consultation

One does not need a Walton-esque family fortune to be able to benefit from a well-crafted premarital agreement. As a result, anyone considering getting married should discuss their circumstances with an attorney, as circumstances can and often do change. Alan Burton has been practicing family law in Florida for over 30 years and maintains offices in Boca Raton and Fort Lauderdale. To schedule a free consultation with Mr. Burton, call our offices at (954) 229-1660 or (954) 295-9222.

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Many couples wonder, for one reason or another, whether or not they should sign a premarital agreement (also known as a prenuptial agreement or “prenup”) prior to tying the knot. The following are some reasons you may want to consider having such an agreement in Florida.

  1. To know what you are getting into. Though engaged couples are ideally in love and know each other very well, some people may keep some important information secret. For example, one spouse may be embarrassed of significant debt or poor financial habits. A premarital agreement allows you to sit down and put financial issues out in the open so there are no surprises after marriage. If your partner does, in fact, have a high amount of debt, a premarital agreement can state that only your partner will be responsible for the repayment of that debt if you get divorced.
  2. To protect your property. If you have property that you owned pre-marriage and you plan to make it the family home, your spouse will likely be entitled to a share of it in the event of a divorce. Premarital agreements can state that you will retain full ownership of your property should a divorce occur.
  3. To protect a business. In the same way that you likely want to protect your property, you also want to protect any businesses that you own with a premarital agreement.
  4. You and your partner have significantly different wealth. If you are substantially wealthier than your partner, a premarital agreement can limit their access to your fortune if you get divorced. Not only will this preserve your wealth for you, but it can also assure you that your partner is marrying you for the right reasons, and not for your money. On the other hand, if your spouse has more wealth than you, you can use a premarital agreement to protect yourself in the event of a divorce.
  5. To protect your estate plan. If you have a specific estate plan that you would like to protect that may involve leaving certain heirlooms or property to individuals other than your spouse, you can address this in a premarital agreement.
  6. To plan to be a stay-at-home parent. If you and your partner have discussed this and you plan to quit working and stay home to care for your children and the household, you will inherently give up future income, job experience, and other professional opportunities that may make more challenging for you to support yourself if you get divorced. A premarital agreement can protect you by setting alimony that will ensure you are able to support yourself until you begin working again.
  7. To make a divorce easier. Many different issues are involved in a divorce and arguments over these issues can drag on. If you decide many issues ahead of time in a premarital agreement, it will help the divorce process go faster and more smoothly.

If you have any questions regarding premarital agreement, do not hesitate to call Boca Raton family law attorney Alan R. Burton for assistance today.

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More and more people, especially in Florida, are opting for the single life.

In Florida, there were 7.3 marriages per 1,000 people in the year 2010. Compare this rate to the 17.1 marriages per 1,000 people in the year 1940..

At the same time marriages are declining, the rate of divorce is increasing. In Florida, the divorce rate was 4.2 per 1,000 people in the year 2009. Just last year the divorce rate was an astonishing 76% of all marriages. You can read more about these statistics in a recent article reported in the Ledger.com.
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If you are contemplating marriage you need to be aware of these statistics. You need to prepare yourself for the worst and hope for the best. Prenuptial agreements may be a good idea in light of these kind of statistics. Plan ahead for the worst scenario, and protect yourself and your assets prior to making the important commitment that a marriage commands.

A prenuptial agreement is like an insurance policy, so to speak. You are insuring yourself against the potential for financial disaster should things not go your way. An experienced Boca Raton, Florida or Fort Lauderdale , Florida attorney, who has years of experience, can protect your interests. Make the call today to insure your future.

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Why is a prenuptial agreement important and what purpose does it serve? A prenuptial agreement is a contract between two adults, and it can cover a myriad of issues, limited only by the imagination of the contracting parties.
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A prenuptial agreement most definitely, and frequently will, alter the rights of the parties should a divorce subsequently occur. Many agreements provide for the complete waiver and relinquishment of alimony and other support obligations from one party to the other. However, under Florida law, a waiver of temporary alimony under an agreement is unenforceable. You may wish to confer and consult with an experienced divorce attorney regarding this, as well as any other aspects of a prenuptial agreement.

Valuable property rights can also be given up under the provisions of a prenuptial agreement. In Florida, marital assets are most frequently divided 50-50 upon a divorce, so if one party feels that they will be contributing to the marriage in a greater proportion, they might want to provide for that contingency.

The actress Courteney Cox, who is involved in a divorce proceeding with David Arquette, apparently overlooked the importance of a prenuptial agreement. You can read her story now by following the link to her story in Forbes.

Although a marriage is considered a “partnership”, that partnership does not necessarily have to be an equal partnership. This, in essence, is what a prenuptial agreement is all about. Courteney Cox may learn an expensive lesson in failing to participate in the execution of a prenuptial agreement.

Prenuptial agreements must, at a minimum, include complete financial disclosure by both parties; be executed without duress; and each party should have independent legal advice. Many times the validity of agreements are challenged, so a financial sanction should be assessed against the challenger who does not succeed in their endeavor to void an agreement.

Further information may be obtained on this area of the law by contacting Alan R. Burton, Esq. directly. Appointments are available in Boca Raton and Fort Lauderdale.

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There is a presumption that a prenuptial agreement was entered into freely and voluntarily. Usually each party to the agreement has had the opportunity to be advised by their own attorney, and each party has made a complete and total financial disclosure of their assets and liabilities tio the other party.

Prenuptial agreements usually contain a provision for prevailing party attorney’s fees. This means that if you decide to challenge the validity of a prenuptial agreement that contains a prevailing party attorney’s fee clause, you will be held responsible for those attorney’s fees if your challenge is not successful and the agreement is upheld.

The Supreme Court of Florida resolved this issue in June of 2005 when they decided the case of Lashkajani v. Lashkajani, 911 So.2d 1154 (2005).. The court’s ruling was clear and precise. The court held that prenuptial agreement provisions awarding attorney’s fees and costs to the prevailing party in litigation regarding the validity and enforceability of a prenuptial agreement are enforceable.

The point to be made is is a simple one. Proceed with extreme caution if you are considering a challenge to a prenuptial agreement. The potential cost may well outweigh any benefits you are seeking to achieve by virtue of your challenge.