Category: Agreements

A Phaser-Proof Prenuptial Agreement?

Posted by Ron Kauffman on December 11, 2019 with 0 Comment

William Shatner, who is best known for starring as Enterprise captain James T. Kirk on the original Star Trek, has reached the final frontier of his marriage: he has filed for divorce from his wife of 18 years. News reports suggest the Captain and his First Mate previously entered into a prenuptial agreement. But will it be phaser-proof?

Beam Me Up Scotty

Transmission of the news was received this week about the divorce filing, but some sources believe the divorce process had already been in the works for a while. Importantly TMZ noted that there was a prenup in place, the couple never had children together, and neither party is asking for spousal support. Observers are predicting a smooth divorce will be transported down to court fairly soon.

I was attracted by her beauty first of all, which was an old syndrome for me … and I think I lucked out because she had so many other qualities as well. Elizabeth has a great sense of humor and a great sense of adventure and she’s very nurturing. That combination of beauty, style, intelligence, humor and loving horses and dogs and children and loving her home and making a home for us, is quite a combination.

This marriage is not the Captain’s first voyage. Shatner’s wife, Elizabeth, 61, is his fourth, er sequel, in movie parlance.

Florida Prenups

I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just exploring the strange new world of marriage. 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 for those who boldly go into fourth 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. Many couples divorcing would prefer not to to explore the strange new worlds of family court.

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 the best captain at the helm . . . if they’re done right.

There are a galaxy of problems with prenuptial agreements too. If a prenuptial agreement includes any provisions that violate the law or public policy, it may automatically be deemed invalid.

Additionally, a prenuptial agreement cannot waive child support, and can’t set an amount for child support. Courts have plenary power over support issues, so child support amounts are determined by courts based on our child support guidelines.

Also, a premarital agreement may not be enforceable in a family court case, for instance, if it was not signed voluntarily; or if it was the product of fraud, duress, coercion, or overreaching.

Warp Speed Ahead

The Shatners are still negotiating the financial terms, a source told the site TMZ.

‘Per the terms of the prenup, neither party will receive any support from the other.

The Captain has had a colorful love life previously that resulted in four marriages and three daughters. Shatner and Elizabeth Shatner married in February 2001. He was previously married to Gloria Rand, Marcy Lafferty and Nerine Kidd, and has three daughters, Melanie, Leslie and Lisabeth, with Rand. Elizabeth Shatner was previously wed to Michael Glenn Martin.

Sources said Shatner and Elizabeth are expected to soon submit their divorce documents for a final signature from a judge.

The TMZ article is here.

Prenups and Threats to Call Off the Wedding

Posted by Ron Kauffman on July 16, 2019 with 0 Comment

With the wedding season upon us, people are increasingly demanding prenuptial agreements. But many are also asking what is required to get out of the prenup they just signed. For instance, how valid would a Venezuelan prenup be if there were threats to call off the wedding unless it was signed? A Florida court just answered that question.

Prenup Threats

Venezuelan Prenups

In the recent case, the couple planned to marry in Venezuela. But six days before their wedding, the husband presented the wife a draft of a prenuptial agreement in Venezuela. At the time, the wife was four months pregnant with their second child.

The only financial disclosures contained within the document were perfunctory references to the husband’s ownership of certain nominal non-convertible bearer shares with corresponding assigned nominal values.

Interestingly, the agreement did not provide for equitable distribution or alimony. The husband allowed the wife to peruse the document and then assured her that he would furnish full financial disclosures prior to the wedding.

But the day before the wedding, having not yet provided any financial documentation, the husband threatened to cancel the ceremony if the wife did not sign it.

The wife reluctantly signed the prenup and they got married. However, their marriage did not endure. Less than six years later, the husband filed dissolution proceedings in Miami.

The wife tried to invalidate the prenuptial agreement, contending it was the product of “duress, coercion, or overreaching,” and was unconscionable, as it had been executed in the absence of full and fair financial disclosure.

Following an evidentiary hearing, convened to determine the circumstances surrounding the execution of the agreement, the court entered an order. The following week, the parties were due to appear at the United States Embassy in Venezuela with their marriage certificate, in order to establish expatriation eligibility.

Several years later, the husband retained another attorney and sought to have the wife execute a postnuptial agreement, showing he believed the prenuptial agreement was unenforceable under Venezuelan law.

Even though the prenup was entered into by the parties in Venezuela, and Venezuelan law should govern its validity, both parties urged the application of Florida law.

The Florida trial court found the prenuptial agreement had been executed under duress and in the absence of both full financial disclosure and waiver of said disclosure. The husband appealed.

Florida Avoiding Prenups

I have written about prenuptial agreements in Florida before, especially avoiding them. Because of Florida’s policy of enforcing agreements, prenups and postnups can be difficult to void – but not impossible. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement, for example, is enforceable.

In Florida, to test the validity of a prenuptial agreement, courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Under Florida’s Uniform Premarital Agreement Act, a prenup may not be enforceable if a party can prove, in part, that it was not signed voluntarily; or was the product of fraud, duress, coercion, or overreaching; or it was unconscionable.

Some of these defenses may also require a party to show they were not given a fair and reasonable disclosure of property, and did not voluntarily and expressly waive that right, and did not have adequate knowledge of the property or financial obligations of the other party.

“No Agreement, No Wedding!”

In Florida, a premarital agreement is not enforceable if the party against whom enforcement is sought proves that the agreement was the product of fraud, duress, coercion, or overreaching.

But what is “duress”? Often, duress is defined as a condition of mind produced by an improper external pressure or influence that practically destroys your free agency and causes you to make a contract not of your own volition.

Proving duress is difficult, and requires showing the prenup was not free choice or will and this condition of mind was caused by some improper and coercive conduct of the opposite side.

In the Venezuelan case, the testimony established that the husband initially presented his pregnant wife with the disputed prenup six days before the wedding. At that time, the wife asked for evidence regarding his net worth. The husband assured the wife such evidence would be forthcoming.

But instead of honoring his pledge, the day before the wedding, the husband demanded she sign the prenup, with the added ultimatum of “no agreement, no wedding.”

However, it is not unusual for people to give an ultimatum that they will not marry their spouse without a prenuptial agreement. Ordinarily, the “no agreement no marriage” ultimatum does not constitute duress because there is nothing improper about taking such a position.

In the recent case though, the Husband also threatened life-altering consequences, by imperiling their shared, long-term plan to begin life anew with their children in the United States. The court found that these circumstances, which were unrebutted by the husband, were sufficient to support a finding of duress.

The opinion is available here.

Millennials: The New Prenup Crowd

Posted by Ron Kauffman on July 1, 2019 with 0 Comment

As the New York Times reports, these days, millennials are being credited with the recent spike in prenuptial agreements and postnuptial agreements. With the wedding season in full swing, the rise of a new prenup crowd could mean the downfall of the stigma typically associated with them.

New Prenup Crowd

AAML Statistics

According to a study by the American Academy of Matrimonial Lawyers, 62% of attorneys surveyed saw an uptick in requests for prenuptial agreements, with 51% citing an increase in millennials asking for the protection.

One likely reason: The Generation Y crowd is marrying later than previous generations, with years to build up assets and debt on their own. The term Millennials refers to the generation of people born between the early 1980s and 1990s. The Millennial Generation is also known as Generation Y, because it comes after Generation X — those people between the early 1960s and the 1980s.

That new approach of Millennials accounts for the changing role of women in the work force, too. In 1980, just 13 percent of women who lived with a male partner earned at least half the couple’s income — today, that number has nearly tripled.

So, while prenups traditionally protected the party with money — which often was the man, and which often led to resentment — millennials usually tackle the agreements as a team.

Florida Prenups

I’ve written about prenuptial agreements before. 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.

Millennial Prenups

Another factor in the rise of the new prenup crowd could be practicality, as more than one-third of millennials grew up with single or divorced parents. Though it’s easy to think of a prenuptial agreement as a “divorce contract,” many legal and financial experts view it as a smart business move.

“It’s such a good idea to go into the marriage understanding that — while it’s first

Several reasons you may want a prenup include:

Own property or a business
Have children from a previous relationship, or have been married before
Plan to take time off to raise children
Hold significant debt
Have robust retirement accounts
Will receive stock options during your marriage
Feel that a prenup might be a good fit for you? Here’s how to get started.
Talk to your partner, sooner rather than later. By starting early, you’ll allow time for multiple discussions — and prevent your fiancé from feeling forced or rushed into something he or she doesn’t understand or agree with.

When you hire a lawyer to complete your prenup, he or she will request all your financials — bank and investment accounts, tax returns, insurance policies, debts — so it’s wise to start compiling that information now.

And, though it might seem like a headache, getting a clear picture of your finances is always a good idea — especially before you merge your life with someone else’s. One thing you must omit: issues of custody or support for future children, as those decisions are made in the best interest of the child at the time.

Ready to make it official? You and your betrothed will each need to hire a lawyer. Depending on the level of complexity and negotiation, legal representation for a prenuptial agreement can cost $2,500 and up.

As long as you work with your fiancé in a team, a prenup can bring you closer together — rather than further apart.

The New York Times article is here.

Can a Prenup Protect De Niro’s Dinero

Posted by Ron Kauffman on June 7, 2019 with 0 Comment

Robert De Niro’s estranged wife, Grace Hightower, is demanding half of the actor’s half-billion dollar fortune, despite signing a prenuptial agreement in 2004. Feeling the ‘Heat’, De Niro is wondering whether his prenup is valid and will survive court scrutiny.

Void Prenup

Analyze This

According to the New York Daily News, details about the Hollywood star’s finances emerged during a hearing in Manhattan Supreme Court that revealed the two are battling over how to interpret a 2004 pre-nuptial agreement signed after a previous divorce.

De Niro attorney Krauss-Browne said that under the terms of the pre-nup Hightower was entitled to a $6 million apartment, $500,000 cash, $1 million each year and half the value of their marital residence.

“Nope, I’m entitled to 50%.”

Hightower, 64, is arguing she is entitled to much more — and that De Niro, 75, has kept her in the dark about their money since 2008. She believes she is entitled to a cut of 38 movies and 35 new business ventures since 2004 that involved the Oscar-winning actor.

Florida Prenuptial Agreements

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

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.

Great Expectations

Hightower attorney Allan Mantel put the couple’s revenue since their prenup at $300 million — $250 million of which came from movies. He estimated that De Niro’s net worth was $500 million.

In addition to De Niro’s work in Hollywood, much of their earnings came from his ownership of the Nobu chain of restaurants and Greenwich Hotel.

Hightower’s frustration that she was not considered an equal led to their previous divorce in 1999, Mantel said.

“That’s what caused the first divorce — we want a partnership. She enhances his goodwill. She enhances his career. I agree you’re going to be my 50% partner’ — it’s in the agreement.”

Hightower says that part of the deal is void due to De Niro’s alleged shady accounting practices. The judge then joked:

“His income will fall now that Special Counsel Robert Mueller is out of the picture — less ‘Saturday Night Live,’” the judge remarked, referencing De Niro’s appearances on the sketch show.”

De Niro sat stone-faced.

The judge made a more serious observation as the hearing concluded.

After the hearing, De Niro, as is his custom, held a newspaper over, his face and became aggravated while struggling to find his driver waiting for him outside the courthouse.

Meet the Parents

De Niro filed for divorce from Hightower in December. They are also battling over custody of their 7-year-old daughter, who they had through a surrogate. They also have a 21-year-old son.

The New York Daily News article is here.

*Photo courtesy Georges Baird

This is your Religious Prenup

Posted by Ron Kauffman on May 20, 2019 with 0 Comment

A Detroit-area man must pay his former wife $50,000 under the terms of their Islamic prenup. Not only are prenuptial agreements on the rise among all engaged couples, they are also becoming very popular for religious couples. But is a religious prenup enforceable in the U.S.?

Mehr Agreements

A Michigan man argued that a family court judge exceeded her authority by trying to resolve a religious issue in a divorce. In 2012, the husband approached Mohammed Ali and asked permission to marry Mr. Ali’s daughter.

They negotiated the terms of the arranged marriage. Mr. Ali proposed that defendant could marry his daughter if defendant paid her $51,000, a payment the parties referred to as Mehr, a traditional component of Islamic marriages.

He agreed to the payment proposed by Mr. Ali. The Wife considered the offer of marriage, on the financial terms negotiated by her father, for approximately one year and ultimately decided to accept the marriage proposal and the parties married in 2013.

Florida Prenups

I’ve written about prenuptial agreements and even about a religious prenup. Prenuptial agreements are about more than just resolving uncertainty in a marriage.

Any couple who brings any personal or business assets to the union can benefit from one. They are also important to have in place before a couple starts investing in businesses, properties and other investments.

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.

Without a prenup, if your spouse dies, you will have statutory rights under state law to a share of your deceased spouse’s estate and may also have a right to lump sum death benefits, or a survivor annuity under a retirement plan.

That’s where prenups come in. Prospective spouses may limit or expand these rights 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 very worthwhile provided they’re done right.”

The most basic of prenups should list an inventory of premarital assets that would stay with the original owner in case of a divorce. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Religious Prenup

Back in the Michigan case, it was uncontested that the Husband and Wife had only a verbal agreement for payment of $51,000, in consideration of marriage, until the day of their marriage ceremony.

During that ceremony, the parties signed a document that placed the contract to marry in writing. The one-page document signed by the parties was titled “Marriage Certificate” which is the basis for the religious prenup dispute.

The document stated that the Groom solemnly proposes to marry the bride and take her as my wife and agree to pay Mehr of $51,000 Later. Furthermore, the document stated that the Bride solemnly accepted the proposal.

During the course of the marriage, the Husband made several payments, totaling $3,900, toward the $51,000 mehr. In 2016, the Wife filed an action for separate maintenance and the Husband filed a counterclaim for divorce.

During the divorce trial, plaintiff asked the trial court to enforce the contract to marry and award her $47,100, the unpaid amount of the mehr.

The trial court concluded that the parties executed a valid, simple contract and entered a judgment in plaintiff’s favor in the amount of $47,100. In addition, the trial court granted the parties a judgment of divorce, denied the request for spousal support, and divided the parties’ marital assets.

Does Shariah Law Apply?

The Husband actually argued that the contract states on its face that it was made under Shariah law and that it was not made under any state law. But did the Mehr merely provide for a religious obligation or was it an enforceable contractual obligation under Michigan law?

The trial court clearly stated that it was not applying Shariah law, but was applying Michigan law to the parties’ contract:

“We are not interpreting or applying the contract between the parties under Shariah law, but are applying Michigan law to the review of the parties’ contract and the judgment of divorce entered by the trial court.”

In this case, neither the trial court nor this Court is required to resolve ecclesiastical questions. The trial court did not claim any power to grant the parties a divorce under Islamic law, but only the power to grant the parties a civil divorce under Michigan law.

The trial court did not decide the parties’ respective religious obligations under the tenets of their faith tradition, but only decided the parties’ respective obligations under long-established principles of Michigan contract law. Because this case does not require the resolution of any ecclesiastical questions, we conclude that defendant’s argument is without merit.

U.S. courts don’t enforce religious laws, be they Christian, Jewish or Muslim. U.S. courts enforce American law. As long as a religious agreement can be enforced without resolving theological questions it may be enforceable.

The U.S. News article is here.

Five Simple Reasons for a Prenup

Posted by Ron Kauffman on March 29, 2019 with 0 Comment

If you’re planning on getting married this year, you may be thinking about getting a prenuptial agreement. If so, you would not be alone. More and more people have requested prenups in the past few years. Here are five simple reasons why you should consider a prenuptial agreement before you get married.

Prenuptial Agreement

Prepare for the Worst

While I have written on the topic of prenuptial agreements before, U.S. News and World Report offers an article with some pros and cons about prenups you may want to consider. For example, entering a prenup can help you prepare for the worst.

If you watched your parents’ divorce – or have close friends who have divorced – you understand that divorce can happen to anyone.

What you may want to consider is that divorce can be planned for, so that its consequences are less severe on you. For example, a prenup can eliminate stressful issues relating to alimony, property division and your inheritance.

Protection from Debt

A prenup can also protect you from your spouse’s debt. Debt is probably one of the most common reason for a prenup with people going through first-time marriages. Sadly, part of divorce means taking care of debt that was incurred during the divorce.

In a perfect world, both people walk away responsible for the debts they created. Unfortunately, that is not the law.

The problem with debt is especially important today considering how much student debt people are carrying. No one wants to get divorced and add their ex’s graduate school debt to their own. A prenup can help you in dividing debts before they become a problem.

Transparency

A prenup forces you to commit to full transparency when it comes to talking about your finances.

If you openly talk about a prenup, chances are you’ll become better as a couple at discussing details about your finances and other concerns about marriage.

During your conversations with your future spouse, you may also learn some important things about your partner. You may, for example, find out before the wedding that the person you’re going to marry has numerous lawsuits and years of unpaid taxes, what your role as a parent will be, and other issues.

Protect Valuables

A prenuptial agreement can protect valuable assets you want to stay in your family. For example, your grandmother’s diamond ring, that has been in a family for generations, and has acquired a personal significance and sentiment far beyond its market value, could be an heirloom you want to add to an agreement.

A prenup is meant to govern how assets such as investments, grandmother’s diamond ring, and property will be handled if after the marriage you decide to divorce.

Because of the importance of a prenup, if your future spouse comes to you with a prenup, and you haven’t been involved in writing it, you’ll want to bring in your own attorney.

Focus on Your Future

A prenup forces you to focus on the future. This may be a prenup’s biggest advantage and disadvantage. You are able to decide now how to handle and prepare for a future event.

The problem of course, is that no one knows what the future will bring. One person can leave a marriage much wealthier than the other. Or it could go the other way, and you could be contracted to pay your partner far more than you’re able.

That uncertainty about the future doesn’t mean you shouldn’t get a prenup. Generally, if you or your partner has a lot to lose in a possible divorce, you should consider getting a prenup. If you own a business, have a large retirement account or assets you want to pass onto your children, a prenup is essential.

The US News and World Report article is here.

Goin’ Down for a South Park Prenup

Posted by Ron Kauffman on March 11, 2019 with 0 Comment

When your marriage is no longer ‘awesome-o’, and your house cannot be described as a ‘Casa Bonita’, what do you do? If you’re Trey Parker, co-creator of South Park, you file for divorce, ask for joint custody, and enforce your South Park prenup.

South Park Prenup

Fishsticks

According to documents obtained by TMZ, Trey Parker recently filed for divorce from his wife, Bookie Parker, a former exotic dancer. The parties were married in 2014, and Trey lists their date of separation as February 28, 2019.

Trey filed the divorce petition in Los Angeles, and they had one daughter together before getting married. Their daughter may have worked on the show, voicing the character Ike, Kyle’s adopted Canadian brother.

Parker, who also co-created Broadway Smash “The Book of Mormon” with long-time creative partner Matt Stone, was previously married to Emma Sugiyama. The couple divorced after two years of marriage.

Parker, 49, asks for his daughter’s legal and physical joint custody. He is also seeking to terminate spousal support on the basis of the couple’s prenuptial agreement.

Lucky for Trey, he reportedly has a prenuptial agreement. These days, the prenup has become more important than ever. People are marrying when they are older, and more people are better informed about the implications of marriage.

And for people like Trey Parker, they are marrying a second time. Like Trey, more people marrying a second time look to have a prenuptial agreements prepared.

Florida Prenuptial Agreements

Prenuptial agreements aren’t just for wealthy Hollywood people like Trey Parker, entering second marriages, they are important for any couple planning to marry. I have written extensively on prenuptial agreements.

A prenup can help keep your non-marital property yours. The property you brought into the marriage is yours – mostly. But over time it is common for people to start mixing things up. Inheritance funds get deposited into joint accounts; properties get transferred into joint names…and all for good reason.

Unfortunately, tracing commingled property is expensive, and hard to prove. But, if you put it in writing at the beginning, you might be able to avoid this task, and save some money down the road.

Prenuptial agreements also help you to change the law. For example, right now in Florida, there were two bills recently introduced at the Legislature, and an ongoing debate, about alimony. When you go to court, a judge has to follow state law regarding alimony.

However, through prenuptial agreements you can modify Florida’s legal standards for awarding alimony, you can terminate it outright in many instances, in addition to modifying what the current law says about the amount of support and the duration of the alimony period.

Second Marriages

This is a second marriage for Trey. For second marriages, a prenup is an especially good idea. What some clients don’t realize is that going through a second, third, or fourth divorce can be more complicated than first-time divorces.

In multiple divorces, couples are older, and have less time to make up for losses. Also, couples are competing for dwindling resources. Child-support, alimony, and dividing up of the retirement accounts may still be pending, and there can be little left to divide in a second divorce.

Some can simply state what assets each party has brought into the marriage, and what assets each party will take away if the marriage ends. Or, if there is a disparity in incomes, you can add to the contract how much the lower-income spouse will receive.

Imaginationland

As noted in the article, Trey is asking the court to enforce the prenuptial agreement he signed with Boogie Parker enforced. Trey has a net worth estimated to be $500,000,000 from his ventures as the co-creator of South Park and play The Book of Mormon among others.

Trey’s first marriage to This is also Parker’s second marriage after previously being married from 2006 to 2008.

The New York Daily News article is here.

Image attribution Gage Skidmore

Prenups and Immigrants

Posted by Ron Kauffman on February 28, 2019 with 0 Comment

You met on a warm sunny beach in an exotic country and now want your soulmate to join you in the United States . . . but obviously you want a prenup to protect yourself. Will your prenup protect you from having to support your immigrant spouse if something goes wrong?

prenups and immigrants

Immigration Basics

Many are not aware that since 1996, the U.S. requires all immigration petitioners to promise they will pay financial support to certain classes of foreign nationals. The way the government required support is guaranteed is the famous, Form I-864, Affidavit of Support.

Most family-based immigrants and some employment-based immigrants use Form I-864 to show they have adequate means of financial support and are not likely to rely on the U.S. government for financial support.

The form requires you to promise to maintain the intending immigrant – your new wife or husband – at 125% of the Federal Poverty Guidelines (“Poverty Guidelines”) and to reimburse government agencies for any means-tested benefits paid to the noncitizen beneficiary.

But what if you and your future spouse waive this support in a prenuptial agreement and want to waive the support requirements?

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements, or prenups, are agreements you sign with your fiancé before marriage that outline how you two would end up in case of divorce or death.

A prenup can resolve things like alimony, ownership of businesses, title of properties, and for purposes of this post, spousal support and alimony. There are many other concerns that can be addressed in the prenup:

Caring for a parent
Going back to school
Shopping habits
Credit card debt;
Tax liabilities;
Alimony and child support from previous relationships; and
Death or disability

A few of the points of a prenup, is that you get to decide on the amount of alimony, the terms of support, or whether you will pay any alimony at all. Or can it? Because prenuptial agreements can limit how much alimony you pay, you might think that you are safe if you sign Form I-864. You might be wrong.

Building a Prenuptial Wall

The I-864 form is required in all cases where a U.S. citizen or permanent resident has filed an immigration petition for a foreign family member including for a spouse. The form is a serious concern for anyone signing a prenup.

Why? Because whether you can even may enter into a prenuptial agreement that waives a sponsor’s duties to a non-citizen-beneficiary under the I-864 is an open question in courts.

Some courts have held that prenuptial agreements which waive I-864 rights are unenforceable, while other courts have enforced the waiver in prenuptial agreements over the I-864 form. There is a split among courts.

The split decisions between different courts about the right to waive I-864 support rights creates a lot of uncertainty into whether a sponsor and beneficiary spouse can waive enforcement of the I-864.

Are a beneficiary’s I-864 rights in the nature of private rights under a contract, or would allowing waiver of I-864 enforcement allow an end-run around an important public policy?

The law is not as well settled as we lawyers like. If you are thinking about marrying a foreign national and residing in the United States, you are not alone. About 7% of U.S. marriages involve one or more foreign-born spouse.

Information about form I-864 is available here.

A Prenup Guide Down the Amazon

Posted by Ron Kauffman on January 11, 2019 with 0 Comment

Twenty-five years after marrying, Jeff Bezos announced he is filing for divorce from MacKenzie. Unless there is a prenuptial agreement to guide them, investors holding high-priced shares of Amazon will be wondering if they should proceed to checkout.

Prenup

Prime Divorce

According to CNN, the Bezos are the world’s richest couple, and they recently announced they are getting a divorce “after a long period of loving exploration and trial separation.”

The divorce could drastically reduce Bezos’ stake in Amazon and open the door for his wife to become one of its largest shareholders, with new leverage at the company.

Given that Amazon launched after the pair were married, virtually all of Jeff Bezos’ current $137 billion net worth could be considered community property and have to be equally divided.

But is there a prenup or post-nup agreement to guide them?

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 also the CEO of Amazon, they can be a guide past dangerous price swings. For example, when the CEO 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 the parties’ prenuptial agreement, that there would be no spin-offs, and a divorce would have “zero impact” on the company

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.

Proceed to Checkout?

It is not known whether the Bezos have a prenuptial agreement. It’s also unclear where they might file for divorce. Assuming there is no agreement, the Amazon CEO may need to either sell off or transfer half of his stake in the company to fulfill an equal split for the divorce.

Unlike other tech CEOs, Jeff Bezos’ control over Amazon doesn’t come from having a majority of voting power at the company, but rather from a strong leadership track record over two decades.

Divorce without a prenup can hit publicly traded companies hard. CEOs might be forced to sell or transfer shares as part of a property division. Selling shares can reduce a CEO’s influence and impact decisions regarding corporate strategy, asset ownership, and board composition. Divorce also impacts productivity, concentration, and energy levels because divorce is stress, and divorce can change appetite for risk.

The CNN article is here.

Heartbreak Postnuptial Agreement

Posted by Ron Kauffman on August 24, 2018 with 0 Comment

Lisa Marie Presley, daughter of rock legend Elvis Presley, is as happy as a ‘hound dog’. A judge in her divorce from Michael Lockwood recently ruled that her postnuptial agreement waiving alimony is valid.

Are You Lonesome Tonight?

Although she is single, the daughter of music legend Elvis Presley is not without her riches. The family court ruling means she won’t have to pay her estranged husband spousal support, according to court papers obtained by TheWrap.

In an order handed down Aug. 17, a judge found that a 2007 post-nuptial agreement signed by Presley and Lockwood in which they waived spousal support in the event of a split, is valid.

The Wonder of Postnuptial Agreements

I’ve written about various marital agreements before. Postnups are written agreements signed after a couple gets married, or have entered a civil union, to settle the couple’s affairs and assets in the event of a separation or divorce.

Postnuptial agreements are enforceable in divorce cases. But, there are two separate grounds by which either spouse may challenge such an agreement and have it vacated or even modified.

First, a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

The second ground to vacate a settlement agreement contains multiple elements. Initially, the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties.

To establish that an agreement is unreasonable, the challenging spouse must present evidence of the parties’ relative situations, including their respective ages, health, education, and financial status.

With this basic information, a family court judge may determine that the agreement, on its face, does not adequately provide for the challenging spouse and, consequently, is unreasonable.

In making this determination, the trial judge has to find that the agreement is “disproportionate to the means” of the defending spouse. This usually requires some evidence to establish a defending spouse’s financial means. Additional evidence may also be necessary.

Keep in mind that this standard for avoiding or modifying the agreement happens when a couple is not in the midst of litigation against each other. This does not govern marital settlement agreements entered into during the course of divorce litigation.

Return to Sender

According to the papers, the agreement was arrived at the year after Presley and Lockwood married, and before the couple’s twins were born.

The order purportedly said that the post-nuptial agreement stated that:

“in the event of a judgment of nullity, legal separation or dissolution of marriage, neither party shall be obligated to pay spousal support to the other.”

The court added that Lockwood didn’t read this because it didn’t interest him, but he signed documents containing that language, twice, initialing every page on the July 2007 copy, and his attorney “signed the November 2007 version.”

Viva las agreements. The Wrap article is here.