Author: Ron Kauffman

Abducted Child Returned to Third Country

In an international custody case, can a court order an abducted child be returned to a third country that’s not the habitual residence if the habitual residence has become unsafe? This is a frequent problem under the Hague Convention, and one New York appeals court just answered the question.

International Custody

Два чоботи – пара

(“Two shoes make a pair”)

Tereshchenko and Karimi married in Odesa, Ukraine, in 2017. They are the parents of two children, one born in Ukraine and another born Florida. They divorced in 2018, and signed a custody agreement under which the children would reside with Karimi and Tereshchenko would “freely visit” with them and participate in their upbringing.

Then Russia invaded Ukraine in 2022. Karimi contacted Tereshchenko in Dubai by phone and asked for the passports so they could quickly leave Ukraine.

He agreed, but asked that they be brought to him in Dubai. Instead, she took the children to Poland, and ultimately to Manhattan. On January 8, the court found the children were “habitual residents” of Ukraine, and return to Ukraine did not pose a grave risk of harm.

The court ordered the return the children to Tereshchenko in France.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

If an applicant can prove his prima facie case, the abducted children must be promptly returned to their habitual residence. But what if no one is left in the habitual residence?

Розставити всі крапки над “і”

(“Dotting your “i”)

The appeals court noted that both parents agreed to remove the children from Ukraine because of the Russian invasion. And both parents continue to recognize the dangers posed by returning the children to Ukraine.

Notwithstanding the grave risk of harm facing the children if returned to Ukraine, the court agreed a court could return a child temporarily in a third country. The ongoing war in Ukraine simply precluded entry of the ordinary Hague Convention order.

However, even if a court does return a child to a third country instead of the habitual residence, the return order must be tailored to secure the continued authority of the Ukrainian courts over the children and over the parents’ respective custody rights. Absent such tailoring, the order has the effect of an impermissible custody determination.

The Convention did not accept a proposal to the effect that the return of the child should always be to the State of its habitual residence before removal․ The Convention’s silence must be understood as allowing the return of a child directly to the applicant, regardless of the place of residence.

The opinion is available at the invaluable MK Family Law site.

Joint Custody in Japan

Many parents and divorce lawyers in Japan are celebrating a change in international child custody laws after the Japanese parliament passed a bill to introduce the concept of joint child custody for divorcing couples in Japan.

Joint Custody Japan

A Glow in Tokyo

In the first law change regarding parenting in 77 years, Japan’s Civil Code will permit divorced parents to choose either sole custody or joint custody. The bill marks a significant shifting in attitudes about gender roles and family in Japan. In Japan, women remain the primary caregivers in most households.

The change in joint custody law comes as the relationships in families across Japan diversify. There has been a rise in married couples divorcing, and increasingly both parents now want to play a role in raising children. Under the current system in Japan, foreign citizens who want to maintain ties with their children found it challenging if one of the parents relocated to Japan.

Florida Joint Custody

I have written about joint custody issues before. Child custody in Florida is broken down into two distinct components: parental responsibility (which is decision-making) and timesharing (physical custody and visitation rights). Both components must be incorporated into a “parenting plan.”

Florida historically did not have a presumption in favor of any specific timesharing schedule. In establishing timesharing, the court always considered the best interests of the child and evaluated all factors affecting the welfare and interests of the child and the circumstances of the family.

Since 2023, the Florida Legislature added a rebuttable presumption to the law that equal time-sharing of a minor child is in the best interests of the minor child. To rebut this presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child.

Know Before You Go to Kyoto

Under Japan’s revised Civil Code, parents will determine between themselves whether to opt for sole or joint custody. When there is a dispute, a family court judge will have to decide on the appropriate custody arrangements. In cases where domestic violence and abuse by one of the parents is suspected, the other parent will have sole custody.

Supporters of joint custody argue the new law allows both parents to take part in child-rearing, after a divorce. However, victims of domestic violence have voiced concern that a joint custody system could hinder them from severing ties with their abusers as it would maintain connections to their former spouses.

Some also fear such victims may not be able to negotiate single custody or joint custody on an equal footing. To address concerns, the bill was modified during parliamentary deliberations to add a clause that calls for considering measures to “confirm the true intention” of each parent, but critics argue the government measures to protect domestic violence victims are too vague.

Under joint custody, consensus between parents is not required in making decisions on day-to-day matters, such as what to feed children and whether to vaccinate them. Parents must reach consensus on important matters such as education and long-term medical treatment, but if they cannot do so in time in an urgent situation, one of the parents can decide on their own.

To avoid ambiguity in what would constitute an urgent situation, the government plans to provide clear examples. The revision also includes measures against unpaid child support that will oblige a parent to provide minimum payments even if no agreement is reached upon divorce.

Japan had been the only country among the Group of Seven industrialized nation with no joint custody system, causing it to receive criticism in parental abduction cases. In cases involving Japanese spouses who took children away from foreign partners after the failure of marriages, foreign parents had difficulty seeing their children in Japan.

In 2020, the European Parliament adopted a resolution urging Japan to improve its child custody rules, under which European parents in Japan have little recourse in the event of domestic child abduction by a Japanese spouse.

The Kyodo News article is here.

Right to Parenting and Gender Transition

Does the right to parenting to direct the moral or religious training of a child end when gender transition is at issue? In a recent family law case, that question was put to the test after a trial judge’s comments to the child led one father to try and disqualify the judge.

Gender Parent rights

Gender Transition and Parental Rights

The father is a Christian minister and youth pastor. He opposed, on moral and religious grounds, gender transitions for his minor child a biological male – before adulthood.

In 2016, the child was removed from the mother’s custody because of her substance abuse issues. The father was not an offending parent, and the child was not adjudicated dependent as to the father.

After a reunification with the mother, the child later ran away from the mother after the mother had relapsed. Importantly, the mother had given the child sex-reassignment hormones which she had bought on the internet without a lawful prescription.

The child then moved in with the father. However, the father refused to seek any sex-reassignment treatment, and opposed any form of gender transition before adulthood.

The Department of Children and Families (“DCF”) moved for an emergency modification of placement for the child, seeking to remove the child from the custody of both the mother and the nonoffending father.

The only grounds that DCF provided for why the child should be removed from the father’s custody was not allowing the child to live and dress as a female or pursue gender transition.

The trial judge removed the child from the custody of the father because the father: seemed to be unaware and unaccepting of the child’s current emotional situation and ensuing needs based on the father’s opposition to gender transition for the child before adulthood.

The father asked for the child to be returned to his custody on the grounds that it is unlawful to infringe on parental rights in the absence of any findings of actual or prospective abuse, abandonment, or neglect.

The day before the hearing, the trial judge interviewed the child in-camera. The trial judge referred to the child by female pseudonyms, as well as “sister” and “young lady.” The trial judge also told the child that she could order the child’s father to submit to “professional help,” as a way to change the father’s moral or religious beliefs. As a parting remark, the trial judge told the child, “Chin up, sister.”

The father moved to disqualify the trial judge. The trial judge promptly entered a written order denying the motion to disqualify as “legally insufficient.” The father then petitioned the appellate court to disqualify the trial judge.

Parental Rights v. Right to a New Judge

In Florida, a party in a lawsuit may move to disqualify a trial judge if “the party reasonably fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.

In Florida, children do not belong equally to parents and the state. Rather, their protection is first entrusted to the parents, extended family next, and then, if necessary, the state.

On appeal, the panel found the father had a right to rely on his moral or religious beliefs to direct his child’s upbringing. The father was also found to have a right to refuse to allow the child to further the child’s gender transition before adulthood under Florida law. Moreover, the father’s opposition to gender transition before adulthood is not prohibited by Florida law.

The trial judge’s pre-hearing remarks — referring to the child by female pseudonyms, telling the child “you are one smart, strong[,] [t]ogether, young lady,” and to “[c]hin up, sister”— implied a foregone conclusion, before hearing the father’s motion, that the trial judge was supportive of the child’s gender transition before adulthood and opposed to the father’s reliance upon his moral or religious beliefs to otherwise direct the child’s upbringing.

The trial judge’s in-camera interaction with the child went beyond mere attempts to establish a rapport with the child. The trial judge verbally expressed an inclination to order the father to submit to “professional help,” in an effort to change his moral or religious beliefs.

However, one judge on the panel dissented. While the dissenter had no quarrel with the father’s parental right to direct his child’s upbringing, or with Florida’s statutory protection of that right, the dissenting judge felt the trial judge was simply attempting to relate to the child on the child’s terms. To the dissent, the trial judge’s comments were completely appropriate.

The opinion is here.

New Article Hague Abduction Convention Not Your Typical Custody Case

My new article “The Hague Abduction Convention: Not Your Typical Custody Case”, discusses a problem frequently encountered by lawyers representing parents in international child custody disputes. The problem is parents treating their Hague Abduction Convention case as if it were any other custody case. The article is now available on the KidSide website.

Hague Court

Hague Abduction Convention

The Hague Abduction Convention is the primary mechanism to ensure the return of children who have been wrongfully removed or retained from their country of habitual residence. The two main purposes behind the Convention are to protect children from the harm of an international abduction and secure the left behind parent’s rights of access to their child.

However, many parents confuse the purposes of the Convention, mistakenly thinking their best defense rests on proving what a better parent they are. It comes as a surprise to many people to learn that the judge in a Convention case does not even have jurisdiction to hear their child custody dispute.

But before any defenses are even asserted, a parent seeking a child’s return must first prove their case. To prove a case under the Convention, a Petitioner must demonstrate where the habitual residence of the child was before the wrongful removal; that the removal breached custody rights; and at the time of the child’s removal those rights were actually exercised.

There are a limited number of available defenses under the Hague Abduction Convention, and those defenses are different from a typical child custody case. They are different because the purposes of the Convention are different. Given that courts in a Convention case cannot decide the merits of the custody dispute, typical arguments about the best interest of the child don’t have much traction, leaving a limited number of defenses.

KidSide

Child abduction cases under the Hague Convention have a negative impact on children. Add to that, the growing number of high-conflict court cases, like divorce and domestic violence. Because of the growing number of high-conflict cases, there is always a lack of support for kids caught in the legal system.

That’s where KidSide comes in.

KidSide is a 501(c)3 which supports the Family Court Services Unit of the Miami-Dade County, Florida courthouse – the largest judicial circuit in Florida. KidSide can use your support as it supports Family Court Services.

Together, they have been providing crucial services to children and families for more than 20 years. The Unit assists all judges and general magistrates with some of the Court’s most difficult family cases by providing solution-focused and brief therapeutic interventions.

KidSide helps the Family Court Services Unit provide services for families at no cost in the areas of alienation, child/family assistance, co-parenting, crisis assistance, marital reconciliation, parenting coordination, reunification, time-sharing, supervised visitation, and monitored exchanges.

They are staffed with dedicated professionals who are committed to helping families reduce their level of conflict and provide supportive services for the entire family system with particular sensitivity to children.

You can support KidSide by clicking here.

The Kidside article is here.

The Myth of Cross-Border Asset Protection

International Prenup

Is cross-border asset protection a myth? As the world becomes more mobile, issues relating to foreign prenuptial agreements, and the type of marital regime people enter, have taken on greater importance.

Prenuptial agreements are not only becoming more common, but are crossing international borders. The situation in which a couple marries in one country, owns assets in other countries, and live in yet another country, has now become commonplace.

I am honored to be speaking at a webinar on the Myth of Cross-Border Asset Protection on April 5th with Juan Francisco Zarricueta from Santiago Chile, and our two moderators, Vanessa L Hammer of Chicago, and Melissa A. Kucinski, from Washington, D.C.

The Webinar is sponsored by the American Academy of Matrimonial Lawyers and is open to everyone. One hour of CLE is available.

Registration information is available here.

Divorce while Pregnant

Many couples and family lawyers find it odd that in some states you cannot get a divorce while pregnant. Missouri has one such law. Sure, you can still file for a dissolution of marriage while pregnant, but at least in Missouri, the court must wait until after birth to finalize child custody and child support. That law may change.

Divorce Pregnant

Show Me the Change

“It just doesn’t make sense in 2024,” said Rep. Ashley Aune, a Democrat representing District 14 in Platte County, Missouri. Aune introduced a bill this legislative session that essentially says pregnancy cannot prevent a judge from finalizing a divorce or separation. “I just want moms in difficult situations to get out if they need to,” she said.

Why do some states make expecting mothers wait? Some of the reasons include: resolving issues about paternity and establishing the father. Other states insist that adopting a visitation schedule over a newborn – before there’s a baby to even visit and the parents have established new residences – increases costs and judicial labor.

The same may be true in fixing the amount of child support. A court may want to avoid entering a child support order before there’s a child to support because, if parents lose or gain jobs, the support amount will have to be recalculated. Along the same lines, some children may be born with special needs. A court would want to know if the baby is born with an illness, disability, or other condition that requires extra parental attention or generates high doctor bills.

There are other reasons to hold off or prohibit finalizing a divorce. What if the mother has twins? Moreover, courts don’t have authority to make orders affecting unborn babies. Once a baby is born, it’s legally a person and a state resident.

Florida Divorce and Pregnancy

Being pregnant during a divorce adds a great deal of complexity to the process. The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce.

I’ve written about divorce issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

There is no explicit prohibition against dissolving a marriage while a spouse is pregnant. If a spouse is pregnant, this fact must be included in the petition for dissolution of marriage when filed.  While it is unlikely a court would dissolve a marriage before the child is born, there may be situations where a divorce can be granted. For example, a court could dissolve a marriage while a woman is pregnant if the husband is not the father to the child and the biological father is involved through establishing paternity and financial responsibility for the child.

A Legislative Touchdown?

So what changed in Missouri? During a committee hearing earlier this month, Aune said one woman shared a powerful testimony regarding an abusive situation she was in while pregnant:

“Not only was she being physically and emotionally abused but there was reproduction coercion used. When she found out she was pregnant and asked a lawyer if she could get a divorce, she was essentially told no. It was so demoralizing for her to hear that. She felt she had no options.”

A report from Missouri’s Department of Health and Senior Services states that out of 10,098 women surveyed between 2007 and 2014, nearly 5% were abused either before or during pregnancy. That equates to about 500 women.

Many feel a change in Missouri’s law could literally save lives. For example, abusive partners, they might be using reproductive coercion and control to keep their partner pregnant so that they can’t ever actually be granted a divorce.

The new bill in Missouri currently states:

“Pregnancy status shall not prevent the court from entering a judgment of dissolution of marriage or legal separation.”

However, the bill is still gestating in the Missouri legislature.

The Fox59 article is here.

Equitable Distribution of Human Organs

If you promise to love someone with all your heart, can you ask a court for an equitable distribution of your donated human organs back? One very upset New York organ donor spouse is asking the court to be made whole again.

equitable distribution organs

Kidney Pains

Richard Batista, a 49-year-old doctor from Ronkonkoma who graduated from Cornell University Medical School in 1995, married Dawnell Batista on August 31 1990. The couple had three children, then ages 14, 11 and 8.

After Dawnell had two failed kidney transplants, her husband donated one of his kidneys to his wife in an operation that took place at the University of Minnesota Medical Centre on June 18 2001. Richard Batista said his marriage at the time was on the rocks because of the strain of his wife’s medical issues.

“My first priority was to save her life. The second bonus was to turn the marriage around.”

Four years later, Dawnell sued her husband for divorce, alleging domestic violence and infidelity.  One week before the divorce trial was scheduled to begin, Richard announced he was seeking a stay of the case until his retained “expert” could give an opinion to the court estimating how much his kidney was worth.

After Dawnell filed for a divorce, Richard wanted the court to either award him his kidney back as part of his settlement demand, or credit him in the equitable distribution the fair market value of his donated kidney – an estimated cool $1.5m.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

However, when distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

In Florida, nonmarital assets include things such as assets acquired before the marriage; assets acquired separately by either party by will or by devise, income from nonmarital assets, and assets acquired separately by either party by non-interspousal gift. Importantly for this doctor’s divorce, will the donation of his pre-marital body part be construed as an interspousal gift?

Kidney Failure

In a 10-page decision, the Nassau County Supreme Court rejected the ex-husband’s request that it should consider his donated kidney as an item of property to be valued in the divorce suit, according to Dawnell Batista’s lawyer.

The court said “marital property” covers a lot of things, but human tissues or organs aren’t any of them. It also said that not only was Richard Batista’s attempt to extort money from his wife for the kidney he donated legally unsound:

“The defendant’s effort to pursue and extract monetary compensation therefore not only runs afoul of the statutory prescription, but conceivably may expose the defendant to criminal prosecution.”

Medical ethicists agreed that the case is a non-starter. Asked how likely it would be for the doctor to either get his kidney back or get money for it, Arthur Caplan at the University of Pennsylvania’s Centre for Bioethics, put it as:

“somewhere between impossible and completely impossible”.

What’s more, no reputable surgeon would perform such a transplant and no court could compel a person to undergo an operation, he said.

The NBC New York article is here.

Can a Prenuptial Agreement Make You Smile More

Something to make you smile more or less, Amazon founder, Jeff Bezos, did not have a prenuptial agreement when he divorced his first wife, MacKenzie Scott. While his divorce cost him $38 billion, some argue his net worth would hover around $288 billion today. If celebrity net worth lists don’t interest you, the importance of having a prenuptial agreement should.

Amazon prenup

Prenup Prime

At the time of his separation with Scott, Bezos was the wealthiest individual globally, with a net worth of $150 billion, primarily due to his 16 percent ownership in Amazon. Bezos’s divorce is considered a significant shift in the distribution of wealth at the pinnacle of global affluence. That’s because the distribution of the Bezos fortune at the time of the divorce was practically unprecedented in size.

As of February, Jeff Bezos’ wealth is estimated at $191 billion, positioning him near the top of the list of the world’s richest people. Embarrassingly, Bezos is rumored to rank behind Tesla Inc. CEO Elon Musk, whose net worth is $199 billion.

The Musk ranking comes with a caveat. A recent legal decision invalidated $56 billion in options Tesla awarded Musk in 2018, potentially affecting his net worth and standing.

Despite this, Musk’s financial status remains unchanged because of the possibility of an appeal. Both men trail behind Bernard Arnault and his family, who oversee LVMH, with a net worth of $217.6 billion.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just resolving uncertainty in a marriage.

When a spouse is a major shareholder of company, their wealth can be subject to wide price swings. For example, when the head of Continental Resources was getting divorced, shares of his company dropped 2.9%. Conversely, when Rupert Murdoch announced his divorce, shares of News Corp gained 1.4%. Why? Because in Rupert Murdoch’s case, the divorce announcement stressed his prenuptial agreement, and a divorce would have “zero impact” on the company

A prenuptial agreement (or “prenup” for short) is a contract between people intending to marry. A prenup determines spousal rights when the marriage ends by death or divorce. This can be especially important in second marriages.

If you divorce without a prenup, your property rights are determined under state law, and a spouse may have a claim to alimony while the suit for divorce is pending and after entry of a judgment.

That’s where prenups come in. Prospective spouses may limit or expand state laws by an agreement. Prenups are also used to protect the interests of children from a prior marriage, and to avoid a contested divorce. Prenups can be a reliable guide down rough rivers if they’re done right.

Prime Deals

According to Yahoo! Finance, an intriguing “what if” regarding Bezos’s billionaire ranking develops had he not divorced without a prenup. Before their divorce, Bezos’s 16 percent stake in Amazon was valued at $150 billion.

Following the divorce and subsequent financial decisions, including significant sales of Amazon stock to fund his Blue Origin space venture, Bezos’s share in the company decreased to approximately 10%. These transactions, coupled with the divorce settlement that transferred a 4% stake in Amazon to Scott, have substantially altered Bezos’s potential net worth.

Despite all of that, had Bezos maintained his full share in Amazon, without the divorce, and without liquidating portions of his stock, and without funding Blue Origin, his wealth might have been higher. Given that Amazon’s market cap is now around $1.8 trillion, a 16 percent stake would equate to $288 billion.

Now imagine how much different – and better – his life would have been if he’d only had a prenup?

The Yahoo! Finance imaginary calculation of the Bezos fortune surpasses the wealth of other billionaires, including Musk, Zuckerberg, Gates, and Arnault. Although purely hypothetical, the Yahoo! Finance analysis highlights the importance of having a prenuptial agreement.

The Yahoo! Finance article is here.

Reducing Divorce Waiting Periods

With many countries and U.S. states, having divorce waiting periods, the District of Columbia’s recent legislation, which is reducing its waiting period, is big news. The D.C. Council gave unanimous approval to legislation that eliminated long waiting periods to file for divorce. The waiting period was considered especially harmful to survivors of domestic violence filing for divorce.

divorce waiting period

Waiting in Vain

D.C. law previously allowed a couple to divorce after six months of living separately, only if both parties mutually and voluntarily agreed to it. If a spouse contested the divorce, D.C. law required the couple to remain legally married for a year. Now if one spouse wants a divorce, they can file for one at any time — without any waiting period.

“It made no sense at all that someone might be chained to their abuser or their partner when they didn’t want to be. This was a common sense reform that allows people to move on with their lives and also provide some extra supports for survivors of domestic violence.”

The D.C. Council unanimously approved the bill in November 2023, and the new law took effect last week. The new D.C. law also requires judges to consider domestic violence history, including physical, emotional and financial abuse, when determining alimony or property distribution and it explicitly allows judges to award exclusive use of a family home to either spouse while awaiting litigation.

Florida Divorce Waiting Period

I’ve written about divorce waiting periods, and your rights in divorce before. Like the District of Columbia and other U.S. states, Florida also has a divorce waiting period of sorts. In Florida, no final judgment of dissolution of marriage may be entered until at least 20 days have elapsed from the date of filing the original petition for dissolution of marriage.

 The thinking behind waiting periods in Florida reflects the protective regard Florida holds toward the preservation of marriage and a public policy that marriage is the foundation of home and family.

In some cases the waiting period is longer. For instance, no dissolutions in Florida are allowed in cases of an incapacitated spouse unless the party alleged to be incapacitated has been adjudged incapacitated for a preceding period of at least 3 years. However, the court, on a showing that injustice would result from this delay, may enter a final judgment of dissolution of marriage at an earlier date.

Tired of Waiting

This change to the D.C. law will eliminate one of the many barriers people face when leaving abusive partners. The up-to-one year waiting period, which was established in the 1970s, was considered by many to be outdated and paternalistic.

Half of all states have a waiting period between the filing of divorce papers and when the marriage is legally dissolved, which can range from six months to even longer in some states. But why?

It has long been a recognized public policy by many states that encouraging and preserving the institution of marriage was a societal benefit. These days that notion may seem like an anachronistic legal concept. But the public policy underlying the presumption that marriage is a good institution still exists in many state statutes. Delaying a divorce then, comes from the theory that a couple, if they had more time, could preserve their marriage.

The Washington Post article is here.

When a Prenuptial Agreement Fails

If marriage is a business relationship, a prenuptial agreement is like the incorporation documents. But what happens if during your marriage you find out the prenuptial agreement you paid for fails? For one woman, the results of a prenup fail could mean the loss of her entire inheritance.

Prenup Fails

Protecting Your Assets

After you and your spouse get married, ‘what’s theirs is yours, and what’s yours is now theirs.’ Unless you get a prenup. A prenuptial agreement is a written document between prospective spouses thinking about marriage. A prenup becomes effective upon marriage.

What can you put in a prenup? There are few limitations, but you can agree on your rights to any property either you or your spouse have or will have, who can manage and control the property, and what happens to property in the event of death or divorce. You can also agree to alimony, or to waive alimony,  and many other issues that do not violate some public policy or criminal law.

There are two things she advises before getting married: (1) buy separate comforters for your bed, and (2) get a prenuptial agreement that fully protects you – even if you don’t think your assets are worth much. Without a prenup, you might learn you’re not be protected the hard way.

In the article, the reporter got married right out of graduate school and had no job. Her assets consisted of a used car, a cat, and an inheritance she kept in a trust fund. Her future husband had no assets, but was planning to go to dental school which had a hefty price tag. The Wife’s prenup ensured that her trust fund could not be used to pay for his graduate school tuition.

Notwithstanding her prenup though, during the marriage, the wife used her trust fund monies on their living expenses. Then she decided to ignore the prenup entirely. She used all of her premarital inheritance as a down payment on a marital home. Then she titled the house in both names. Then she also agreed her husband’s salary would pay the mortgage and most other bills related to “their” home.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for the rich and famous. Anyone who brings assets, or a large inheritance, into their marriage can benefit from a prenuptial agreement.

Prenups are important to have in place before a married couple starts investing in businesses, properties, and other investments.

But there can be ‘prenup fails’ too. In addition to being completely ignored, prenups can also be challenged in court. Florida has both case law and a statute to help lawyers, judges, and the parties determine if a prenuptial agreement is enforceable. For example, Florida adopted the Uniform Premarital Agreement Act.

The UPAA is a statute that requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Couples wanting to sign a prenup can enter into an agreement with respect to their rights and obligations in any of their property. Whenever and wherever property was acquired or where it is located; couples can control their right to buy, sell, use, transfer, or otherwise manage and control their property if they separate, divorce, or die.

When ruling on the validity of a prenup, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure. While prenuptial agreements may be challenged in court, we will have to wait and see if the court will invalidate Costner’s prenuptial agreement.

A Messed-up Prenup?

After seven years, the husband informed his wife that he wanted a divorce. He also wanted to sell their jointly owned house and split the profits equally. Without a house though, the wife couldn’t qualify for a mortgage on a new home, and all of her premarital inheritance money was now tied up in a marital home she had to split with her soon to be ex.

When the wife contacted her lawyer to enforce her prenuptial agreement, and get back the deposit she alone paid for in their joint home, she learned the hard way her prenup would not help her. Why? Because she’d spent her inheritance on a marital home titled in both of their names. Her prenup only protected her trust fund money from being spent on paying off her husband’s student loans.

The couple came to an agreement, which was fleshed out over the next few weeks by their lawyers. They sold the house, and the wife got enough money from the sale of her marital home to pay for rent – with the help of alimony.

She was officially divorced by the end of the year, but she found out the hard way her prenup failed to protect her because she ignored it. The wife could have protected her inheritance in several ways: not putting the home in joint names, or amending her prenuptial agreement to decide how her down payment would be treated in a divorce.

Instead, she learned a few lessons. Her advice now is: “Get a prenup.”

The Business Insider article is here.