Articles Posted in Prenuptial agreements

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It is understandable that some spouses who are divorcing are not necessarily in the mindset to cooperate with one another. After all, fighting and disagreements have likely played a role in the decision to end their marriage. However, refusal to come to an agreement regarding one or more issues in a divorce can cause serious delays and can increase the cost of a divorce.

Before a court will grant your divorce, you and your spouse must settle numerous issues including:

  • Property and debt division;
  • Child support;
  • Time-sharing and visitation;
  • Parenting plans;
  • Alimony.

If any one of those issues cannot be settled out of court, the divorce can be delayed as the court will have to decide for you. You and your spouse will have to present evidence to support your arguments for how you want to resolve the issue at trial and the judge will rule on the matter.

A recent divorce case demonstrates just how much a divorce case can be affected by adversarial disputes instead of cooperation. After 25 years of marriage, the wife of the founder of Cancer Treatment Centers for America filed for divorce. The filing occurred in 2009 and the case is still dragging on due to several disagreements regarding a prenuptial agreement, custody, and division of their millions of dollars in assets. The case has involved numerous hearings, appellate hearings, changes of lawyers, contempt orders, and other complications, and is now finally going to trial over asset and property division. In the meantime, both spouses have likely spent an enormous amount of money, stress, and time dealing with the divorce proceedings and have been unable to remarry since their marriage is not yet dissolved after more than six years. Continue reading →

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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.

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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
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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

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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
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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.
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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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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.

94722_contract_signing.jpgA 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.

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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.