Prenups for Couples Not Marrying?: Cohabitation Agreements

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, September 22, 2015.

More and more couples are choosing to live together and not get married. Not marrying may seem like it’s simpler. But legally, it is more complicated because you don’t have any legal protection. Fortunately, there is an agreement for that.

I’ve written about cohabitation many times. Living together and having children is becoming more common than ever before. Between 2006 and 2010, nearly half of heterosexual women said they were not married to their spouse or partner when they first lived with them, the report says. That’s up from 43 percent in 2002, and 34 percent in 1995.

There are a lot of reasons why couples choose to live together rather than get married. One factor that is likely considered is fear of a stressful and expensive divorce.

However, while cohabitating couples may think they are simplifying their lives, they miss out on many legal protections of that married couples have.

Some of the protections that cohabitating couples lose out on are the protections provided by divorce laws: the presumption that the father is the father, inheritance laws, survivor’s benefits and many others.

A cohabitating couple that decided to split up may encounter the same conflicts about dividing the house, splitting the joint bank accounts, paying off the joint loans timesharing and child support that married couples have. However, the laws are not the same.

One way cohabitating couples can remedy this oversight is to create the missing legal rights for themselves, by drafting a cohabitation agreement. Just like a prenuptial agreements, a cohabitation agreement is a written legal document reached between a couple who have chosen to live together but are not legally married.

An agreement can help a couple against expensive litigation should their relationship end. Agreements can provide for property divisions and inheritance rights and level the playing field with married couples.

Cohabitation agreements can address:

– Support payments

– Selling or keeping the jointly owned home

– What to do with jointly owned property if someone dies

– Medical decisions

– Who pays household bills and taxes

Agreements are useful in resolving a big oversight in the law. This is especially important as more and more couples choose to live together rather than marry.

How Detailed Does your Prenup Have to Be?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, September 11, 2015.

The Florida Supreme Court just decided a case which settles a conflict among Florida courts over interpreting prenuptial agreements. It also settles just how detailed your agreement has to be.

I’ve written about the issue of protecting your non-marital assets through a prenuptial agreement before. Few people know that there’s been a big conflict in Florida over how detailed a waiver of rights in a prenup has to be.

For example, if your prenup says that no one will ever claim any interest in the other spouse’s property, is your future spouse entitled to any share of your assets, or the appreciated value in your assets if they were acquired during, or increased in value, during the marriage? You’d think not.

A Prenup in Miami is Different than a Prenup in Ft. Lauderdale?

Believe it or not, that was a huge controversy in Florida. Courts in Miami said yes, your future spouse could claim a share of your non-marital assets even with a general waiver.

But other courts, such as ones in Ft. Lauderdale for instance, came to the opposite conclusion: No, your spouse couldn’t claim an interest in your share of assets if there was a general release to non-marital properties.

Before thinking about the prenup issue, consider the bigger problem of different Florida courts interpreting contracts differently.

Your prenup – which specifically says that neither spouse will ever claim any interest in the other’s property – may not be enforced depending on where you live.

A not-well known job of supreme courts is to settle conflicts between lower appellate courts in a state or the country. For example, in the recent gay marriage case, the U.S. Supreme Court settled the gay marriage conflict between different federal appellate courts.

Prenuptial Agreements Now Treated (more) Uniformly in Florida

Similarly, the Florida Supreme Court settled the conflict between Florida counties about prenuptial agreements.

Yesterday, the high court held that if a prenup includes a broad wavier provision – “but does not specifically waive a spouse’s claim to the other spouse’s earnings, assets acquired with those earnings, and the enhanced value of the other spouse’s property resulting from marital labor or funds” – the general waiver may be sufficient to waive a spouse’s right to seek equitable distribution of such assets.

The Florida Supreme Court opinion is available here.

Forced Drug Testing, Divorce . . . and an online exam!

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, September 8, 2015.

It’s been said that divorce is stressful. OK, I said it, but I’m not alone. Psychologists have been saying that too. Can you be ordered to take a psychological evaluation or a drug test because divorce is so stressful?

How much stress does it take to push you “over the edge”?

Not everything is equally hard to deal with. I’ve written on the subject of stress before. The stress of divorce is more stressful than a change in responsibilities at work. The Social Readjustment Rating Scale (SRRS), more commonly known as the Holmes and Rahe Stress Scale, helps you measure your total stress score.

You can take the Holmes and Rahe Stress Scale test now by clicking here.

It happens more frequently than you think. A witness meets you outside of court. Then, you are surprised to see that person in court ready to testify that you’re a drug addict, or crazy, or worse. Suddenly you’re ordered to be examined by a psychologist, take a drug test, or some other exam.

That’s scary in a custody battle because the mere fact that the court thinks there is suspicion for you to be examined can be unsettling in a high stakes case.

I recently won an appeal defending against exactly this situation. Generally, compulsory evaluations are only authorized when the requesting party has good cause for the examination, and the issue is actually in controversy.

This had been the law for psychological and physical examinations, but no appellate court had really addressed the issue of drug testing. In my recent appeal, the court tackled that issue specifically creating a precedent for other courts in the state.

As often happens in court, witnesses and attorneys make a lot of arguments and conclusory allegations about the other side’s health conditions, or drug use, or mental state, and otherwise attack their character.

What the appellate court seems to be saying in this recent appeal is that conclusory allegations alone do not put a person’s condition “in controversy”. Additionally, those mere allegations are not necessarily “good cause” for a forced exam.

This recent victory is a big win for Floridians, as the case becomes binding precedent on all Florida trial courts until there is a conflicting district court opinion, or until the Florida Supreme Court steps in.

Alimony and the Stay-at-home Parent

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Thursday, September 3, 2015.

Always wanted to be a stay-at-home mom or dad? Your personal finances play a big part in that decision. This is especially true if you are separated or divorced from the other parent.

Forbes magazine recently published some Pew Research Center findings about parents who stay at home:

In 2012, 29% of mothers stayed at home with their children, up from 23% in 1999.

In 2012, 16% of all stay-at-home parents were fathers. That’s up from 10% in 1989.

With more parents choosing to stay at home with their children, what are some of the costs?

Cost of baby: According to the Dept. of Agriculture, the cost of raising a child born to a middle-income family will be $245,340 for food, housing, child care, education and other expenses, up to age 18. That doesn’t even include college!

Cost of working: Working also costs. Childcare cost is the biggest expense, with the average yearly cost for full-time care for an infant ranging from $4,863 to $16,430. Add to that bill: work outfits, dry cleaning, restaurant lunches, Frappuccinos, and your daily commute.

Wages: In addition to out-of-pocket costs, a child costs an average of $49,000 in lost lifetime wages for women due to taking time off to raise children, or choosing less demanding, lower-paying work to accommodate children.

Divorce: Researchers have found that women’s income drops by an average of 40% – and men’s by 25% – after a divorce. This makes it harder for parents to be the stay-at-home parent they dream of.

Alimony: Divorce is bad, but it gets even worse. I’ve written before about several bills in Florida to reform alimony. Over the past years, there has been a steady effort to reduce both the length of the term of alimony, in addition to lowering the amount of alimony a court can award in a divorce.

The financial impact of taking time off from work to raise your children can be very sobering. If you are contemplating that decision, information can help you make that decision.

The Forbes article can be found here.

Divorce and Private School

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Monday, August 31, 2015.

You want public school for the children. She wants them in a private school. Can you be forced to pay for your child’s private school tuition in a divorce?

This is a topic which comes up around this time of the year as we get ready for the start of the new school semester. I’ve written about being forced to pay for college tuition before.

Last year a New Jersey judge ordered the divorced couple to pay $16,000 every year the 21-year-old is enrolled in classes. The judge relied on a landmark New Jersey Supreme Court case that ruled divorced parents may be responsible for providing for their child’s “necessary education.”

Florida law does not follow New Jersey’s “necessary education” concept. In Florida, a parent’s duty to pay an adult child’s college expenses is moral rather than legal.

But what about regular elementary and high school tuition? Often times the tuition is greater than college. In Florida, a private school obligation increases a parent’s total child support obligation.

Pursuant to Florida Statutes, a trial court cannot order a parent to contribute to private school expenses unless it first finds that:

(1) the parties have the ability to pay such expenses

(2) the expenses are in accordance with the customary standard of living of the parties, and

(3) attendance at private school is in the child’s best interest.

If parents are unable to reach an agreement with respect to the payment of tuition, a judge will review the evidence you present and make a decision. If this becomes necessary, the judge will review all of the financial aspects of the case, including each parent’s income, the history of paying certain expenses and the schools themselves.

Getting Around A Prenup

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, August 28, 2015.

Everyone contemplating marriage should consider a prenuptial agreement. But being forced to sign one days before your wedding can be frightening. It can also be a reason to set aside the agreement in divorce.

There are other reasons to set aside a prenuptial agreement besides being forced to sign at the last minute. In one case, the wife tried to establish that her prenup was reached under duress, meaning too much pressure or influence that destroyed her “free agency”.

To prove duress, she complained she was seven months pregnant at the time the agreement, her pregnancy forced her to leave her job as a flight attendant, and the agreement was not signed until an hour before the wedding ceremony.

The court didn’t buy it. It turned out that the prenuptial negotiations stretched over months, her husband disclosed his assets, and they went back and forth over the terms.

She also had an attorney who drafted the agreement. After the agreement was drafted, the wife negotiated a favorable cost of living increase reflected in the handwritten changes.

What if a husband threatens that he would not marry without a prenuptial agreement? Will that constitute duress? No. It is not a threat or duress for the person who wants an agreement to make it clear that there will be no marriage without the agreement.

It is very important in trying to set aside a prenuptial agreement to know if a spouse fully and frankly disclosed his assets and income prior to the marriage.

Another method of attack is to establish that the agreement makes an unfair or unreasonable provision for a spouse, given the circumstances of the parties.

When claiming that an agreement is unreasonable, you have to show the parties’ relative situations: ages, health, education, and financial status. However, fairness is measured at the time of the agreement, not at the time you try to have it set aside.

Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable. 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.

The AshleyMadison Hack & Divorce

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, August 21, 2015.

If you’re one of the few claiming not to know about the computer hacking of 37 million user accounts on the cheating site AshleyMadison.com, you’re probably lying. What does the hacking mean for divorce?

Many commenters are predicting that the exposure of millions of Ashley Madison’s members (no pun intended) to the public will lead to a crush of divorces. However, there are reasons to doubt that wisdom.

Having actual proof of an affair can be helpful in divorce. In fact, Florida law specifically provides that evidence of an extra-marital affair can be a factor in determining the amount of alimony, if any, to be awarded.

However, proof that your spouse had an affair does not always mean a better settlement or judgment in your favor. As I’ve written before, no-fault divorce is the law in Florida, and judges don’t spend a lot of time pondering why you are divorcing.

That doesn’t mean evidence of an affair is not relevant. Some prenuptial agreements have infidelity clauses and other morals clauses which may be enforceable to an extent in Florida courts.

Additionally, spouses who introduce their secret boyfriend or girlfriend to the kids, or spend time with potential hookups while with the children, are not going to win a prize as ‘parent of the year’.

The recent hacking and posting of AshleyMadison customer information will be big news. Here, tens of millions of people doing business on the web, who expected the highest level of privacy that the commercial web offers, found out the internet is not so secure to do business on.

But it may not be the marriage killer people predict.

Prenuptial Agreements and Timing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, August 17, 2015.

Few people use prenuptial agreements. Many get married without one. They think that prenup agreements are only for the rich and famous. That’s not always the case though.

These days, the prenup has become more important than ever. People are marrying when they are older, and better informed about the implications of marriage. Many people have married before. So, more people look for prenuptial agreements.

But many people are afraid of prenups. They are afraid prenups take the romance out of getting married. That’s too bad. As I’ve written about before, there are a lot of concerns prenups can handle:

– Will you have to care for an older parent

– Who pays or supports the house when going back to school

– Agreeing to spending habits

– Who pays for what credit card debt

– Who handles the costs of a business

– Who pays the taxes

– What happens if someone dies or becomes disabled

The truth is that prenuptial agreements can put a damper on things because people wait too long to address them. Clients make appointments for a prenup a few days before the wedding. As a result, there may not be sufficient time to prepare and review the agreement, and it could be challenged as unfair.

If you want a prenuptial agreement, then talk to your future spouse about one at the beginning. Being upfront about your needs, and not springing it on them at the last minute is proper planning. Proper planning and allowing a lot of time will protect the agreement accusations of duress.

If the prenuptial agreement is drafted, signed, and put away long before the wedding celebration, you will better protect yourself and have the peace of mind that no one can challenge it.

Divorce, Separation & Domestic Violence

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Thursday, August 13, 2015.

Injunctions for protection against domestic violence are critical to the safety of many. But they also represent a court system which can be easily abused as a tactical advantage in a custody case.

I’ve written about domestic violence before. Anyone scanning the headlines in the Miami Herald knows that the horrors of domestic violence are all too real:

“Dania Beach man arrested in fatal shooting of girlfriend”

Miami Herald, Aug. 12, 2015

“Miami Gardens man held in fatal shooting of ex-girlfriend”

Miami Herald, June 25, 2015

“Man Charged With Murder After Killing Girlfriend . . .”

Miami Herald, May 17, 2015

However, because they are easy to obtain, restraining orders are misused, usually against men, but sometimes against women too.

When someone has an injunction against violence issued against him, many automatically think that they are an abuser, and injunctions also force you to leave the home, stay away from a partner, and your children.

In order to obtain an injunction against domestic violence, you must prove you are in imminent danger of becoming the victim of domestic violence. In addition to an injunction prohibiting domestic violence, Florida law allows for other types of injunctions as well, including:

Repeat violence injunctions, when two incidents of violence or stalking

Sexual violence injunctions, for certain criminal sexual acts are committed.

Dating violence injunctions, available to protect those who have a “continuing and significant relationship of a romantic or intimate nature” from violence.

Injunctions are issued ex parte, which means the accused has no notice of the proceedings and does not have the opportunity to defend themselves prior to its issuance.

Far too many people use injunctions to gain a strategic. One study found that 59% of allegations of domestic violence between couples involved in custody disputes could not be substantiated by the courts as true.

However, the filing of a false domestic violence injunction can also backfire. In the event your injunction is dissolved, and it is demonstrated that it was filed falsely, that could be evidence in a custody battle.

Every day it seems the Miami Herald has a story about domestic violence. The results are tragic. Conversely, many people abuse the system. Domestic violence injunctions are a part of family law and divorce cases to consider carefully.

Can Your Pre-Marital Property Be Divided?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Monday, August 10, 2015.

Florida law is clear your pre-marital property is non-marital, and is property which cannot be divided by the court in a divorce. Or is it? People are often surprised to find out their premarital property is really at risk.

In a recent case from Fort Myers, the Husband owned a premarital building worth $900,000. Before he separated, the Husband sold the building for $680,000, a big loss.

The property was subject to a mortgage though, and during the marriage, the mortgage was paid down by the amount of $23,651.16 using marital funds. During the divorce, the Wife contended that she was entitled to an equitable distribution in the amount of the reduction in the mortgage.

The trial judge denied the Wife’s claim because the Husband’s property went down in value. Had it gone up in value during the marriage, the trial court may have considered it. The Wife appealed, and argued that using marital funds to pay down the mortgage on the Husband’s non-marital building enhanced the value of the property.

She won! Paying down on the mortgage enhanced the equity value of the Husband’s nonmarital asset. Even through the building did not appreciate in value during the marriage, the use of marital funds to pay down the mortgage enhanced the value of the Husband’s equity in the property.

I’ve written about property divisions before. Without the pay down of the mortgage, the proceeds the Husband would’ve realized from the sale of the building would have been reduced by an amount equal to the pay down of the debt.

The court held that the resulting increase in the equity value of the building was a marital asset subject to equitable distribution. The general rule is that “[w]hen marital assets are used during the marriage to reduce the mortgage on nonmarital property, the increase in equity is a marital asset subject to equitable distribution.”

The opinion from the appellate court can be found here.