Category: Agreements

Remarriage and Prenuptial Agreements

Posted by Ron Kauffman on

A recent Pew Research Center report about divorce in the United States is showing that most adults who have divorced have gone on to remarry. Remarriage to future spouses, adult children and blended families raise interesting issues about the need for prenuptial agreements.

Remarriage prenup Research

Pew Research Study

The Pew researchers report that in 2023, over 1.8 million Americans divorced. Additionally, a third of Americans who have ever been married have also experienced divorce. While divorce has been declining in the US since the early 1980s, divorce still shapes a large part of U.S. culture.

One reason the divorce rate declined has to do with who is most likely to get married these days. Over time, the married population has shifted toward adults with higher levels of education. Adults with more education are less likely to divorce, and these shifts have driven down the divorce rate. People with lower levels of education have become less likely to marry. However, there is not a strong link between education and remarriage among Americans who have divorced.

A big exception to this is the gray divorce. In 1990, the divorce rate was 3.9 divorces per 1,000 married women ages 50 and older. By 2008, the divorce rate for this group had risen to 11.0. This stayed relatively stable through 2023, when the divorce rate among older adults was 10.3. In contrast, the divorce rate for those ages 15 to 49 remained stable from 1990 to 2008 and fell between 2008 and 2023.

Roughly two-thirds of Americans who have divorced have gone on to remarry. Divorced men are slightly more likely than women to remarry (68% vs. 64%).

For those who do remarry, the economic benefits can greatly outweigh the single life. Pew found that the median household wealth, or net worth, of divorced working adults was $98,700 in 2023, while those in their first marriage had a median household wealth of $326,900. Remarried people had a slightly higher net worth of $329,100, Pew researchers found. That is where prenuptial agreements can be helpful.

Florida Prenuptial Agreements

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

Prospective second 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 for anyone contemplating remarriage after divorce.

More Research

Previous research has shown that men are more likely to remarry than women, but estimates of remarriage typically look at both widowed and divorced adults. Because widows are less likely than divorced adults to remarry and women are much more likely than men to be widowed, previously married women are less likely to remarry than men. The gender difference isn’t as large when looking only at divorced women and men.

Some divorced adults who have not remarried live with an unmarried (or cohabiting) partner. In 2023, 15% of divorced women and 19% of divorced men lived with an unmarried partner. The researchers at Pew also discovered that divorced adults have lower household incomes and less wealth than married adults. Perhaps this drives people to remarry.

Working-age adults who are currently divorced also have less median household wealth ($98,700) than those in their first marriage ($326,900) and those who are remarried ($329,100). However, divorced adults have more household wealth than never-married adults ($98,700 vs. $32,600).

The CBS News article is here.

The Risks of a Divorce Without a Prenuptial Agreement

Posted by Ron Kauffman on

Prominent Hollywood entertainment executive, David Geffen, may learn if there are risks in a divorce without a prenuptial agreement. Geffen is currently married to his husband of two years, David Armstrong, a 32-year old dancer. A California court will apply community property and other laws to determine what risks, if any, Geffen faces if he is not able to resolve his divorce amicably.

Divorce Prenup

Risky Business

Geffen rose from modest beginnings in Brooklyn to become one of the world’s best film producers and record executives. In rock and roll, Geffen is a founder of Asylum Records and Geffen Records. He has worked with Elton John, Cher, Weezer, Blink 182, Guns N’ Roses, and Nirvana.

As a film producer, Geffen’s credits include “Risky Business” and “Beetlejuice before forming DreamWorks SKG with Steven Spielberg and Jeffrey Katzenberg. DreamWorks won Best Picture for the films American Beauty, Gladiator, and A Beautiful Mind, and was later sold to Paramount for $1.6 billion.

Then in 2008, at ate 65, he mostly stayed away from the business. Citing “irreconcilable differences,” Geffen intends to pay alimony — generally for a duration of about half the length of the two-year marriage – which could be sizeable given Geffen has an estimate net worth of more than $8 billion. Most interesting though, the divorce petition indicates that the couple did not sign a prenuptial agreement.

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, such as a movie studio, the stock price 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.

Little Shop of Horrors?

Marrying without a prenuptial agreement may not have to be a horror show, but will likely be more expensive than marrying without one for Geffen. He has many things in his favor going into settlement negotiations.

Geffen and Armstrong have a short-term marriage of two-years. Armstrong is 32 years old, and at age 82, Geffen is rumored to have slowed down in business. These facts may work out in Geffen’s favor financially.

It’s not clear why Geffen, a highly successful businessman, did not have a prenup. Early indications are that the divorce is amicable so far, which could suit everyone well.

The New York Times article is here.

Marital Settlement Agreements and Divorce Agreements

Posted by Ron Kauffman on

Marital settlement agreements are a matter of course in a divorce ending in settlement. However, a divorce agreement is not the same thing as a marital settlement agreement. A court in China has to decide whether an agreement to divorce is valid after a mistress paid a wife to divorce her husband, but the wife kept both the money and the husband.

Divorce Agreements

鱼与熊掌，不可兼得 (You can’t eat the fish and the bear’s claw too)

In December 2013, a man named Han married his wife, Yang, with whom he had two daughters whose ages remain undisclosed. Han started an affair with a colleague, a woman named Shi. They also entered into a business partnership and welcomed a son together in November 2022.

In an attempt to “replace” Han’s wife, Shi confronted Yan with a proposal. Shi offered to pay the Wife 2 million yuan ($280,000) if the Wife agreed to divorce her husband Han. As a down payment, and to initiate the agreement, Shi transferred 1.2 million yuan to the Wife at the end of 2022.

But incredibly, more than a year later, the Wife still had not consented to a divorce. Frustrated, the mistress demanded her money back and then filed a lawsuit to recover the 1.2 million yuan after the wife refused to return it.

Over a year after receiving the money, Yang still had not agreed to a divorce, prompting the mistress to take her to court. In the lawsuit, Shi claimed there was a “verbal agreement” that the payment was contingent upon Yang divorcing Han and requested the court to order Yang to return the money along with overdue payment interest for breach of contract.

Florida Marital Settlement Agreements

I have written about marital settlement agreements before. Most family law cases are resolved by agreement, not by trial. A Marital Settlement Agreement is the method to resolving all of the issues, and is the final product of the negotiations.

A marital settlement agreement puts in writing all the aspects of the divorcing parties’ settlement. Topics covered in the Marital Settlement Agreement include the parenting plan and timesharing schedule, the division of the parties’ assets and liabilities, alimony, child support, and any other items to which the parties have agreed.

A marital settlement agreement entered into by the parties and ratified by a final judgment is a contract, subject to the laws of contract. The enforceability of contracts in Florida is a matter of importance in Florida public policy.

A marital settlement agreement is recognized as conducive to marital tranquility and public policy. But contracts intended to promote a divorce will be declared illegal as contrary to public policy. The reason for the rule lies in the nature of the interest of the State. The state’s interest in the preservation of marriage is the basis for the rule that a divorce cannot be awarded by consent of the parties.

胸有成竹 (Be confident)

Back in China, the Shishi People’s Court in China ruled against Shi’s request, stating that the payment violated societal moral standards and public order as it was intended to disrupt a lawful marriage. Additionally, it was determined that Han and Yang had already signed a divorce agreement and were in a “cooling-off period”, which meant that the payment did not meet the legal conditions for a refund.

This “cooling-off” period, imposed by the Chinese government in 2021, requires couples to wait 30 days after submitting a divorce application before the separation is finalized. It has also been revealed that during his marriage, Han spent over 6 million yuan ($825,000) on Shi without his wife’s knowledge.

The court denied Shi’s refund petition, stating the payment violated societal morals and public order by aiming to disrupt a lawful marriage:

“Any significant assets acquired by a married man during the affair, without his wife’s consent, are considered jointly owned by the couple. The wife has the legal right to demand the return of her share from the third party.”

It remains unclear whether Han might face legal repercussions for potentially committing bigamy by living with and having children with someone else while still legally married. The case has sparked lively discussion on Chinese social media, with many describing the outcome as “justice served”.

The South China Morning Post article is here.

Mistakes In Your Agreement

Posted by Ron Kauffman on

What happens when you discover mistakes in your marital settlement agreement? Family and divorce lawyers are always interested in protecting their clients, and themselves, against mistakes. When agreements are entered into fast and furiously, mistakes can happen. One married couple in Florida found out just how courts look at mistakes in a marital settlement agreement.

Mistake Divorce Agreements

Fast and Furious Divorce

In 2019, the wife filed for divorce. In their in pretrial stipulation, the parties agreed they would each keep their own cars and pay their respective car loans. However, their agreement was not specific as to what type of car each party owned and which care they would keep.

At their final hearing, the trial court entered a final judgment and incorporated their agreement. The husband kept the 2010 Mercedes and the wife kept the 2005 Mercedes.

About a month after their divorce the wife asked the family judge to correct their final judgment, arguing, in part, that the 2010 Mercedes actually belonged to her, that they no longer owned the 2005 Mercedes, and that they actually owned a 2015 Mercedes. The Husband argued in response that the 2010 Mercedes was really his car, and that there was no error in the final judgment.

During the hearing on her motion, the wife told the judge the 2010 Mercedes is titled in her name, it was her Mother’s Day gift for herself, and they intended for her to keep the care when they signed the agreement.

The husband argued that they purchased the 2010 Mercedes after being in a car accident with their previous vehicle. The couple alternated which vehicle they drove based on their needs. Before their divorce, the husband testified that it was always his understanding that he would keep the 2010 Mercedes when entering into the agreement.

Following this hearing, the court found a mutual mistake in the agreement and final judgment should be set aside. The trial court entered a Consent Order Equitably Distributing Vehicles giving the wife a one-half interest in the 2010 Mercedes and sole possession of the 2015 Mercedes. The husband appealed.

Florida Setting Aside Final Judgments

After a final judgment is entered in a divorce, courts are limited in granting relief, but not entirely. For example, a court can relieve a person from a final judgment because of things like, mistake, inadvertence, surprise, or excusable neglect, newly discovered evidence, fraud and the like.

Motions seeking relief from a judgment usually must be filed within a reasonable time, and usually not more than 1 year after the judgment. However, there is no time limit in Florida if the motion for relief is based on a fraudulent financial affidavit in marital or paternity case.

Fate of the Furious

On appeal, the husband argued that, at most, there was a unilateral mistake on behalf of the wife, which is insufficient grounds to set aside the final judgment.

The appellate court agreed. A marital settlement agreement may be set aside when it is entered into as a result of mutual mistake. However, a mutual mistake occurs when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.

But if the mistake is due to your own negligence and lack of foresight and there is absence of fraud or imposition, equity will not relieve you.

In this case, the parties’ agreement provided that “each party shall keep their own vehicle. However, there was no evidence regarding the vehicles at the final hearing, and the motion for relief filed afterwards only showed that the parties’ testimonies contradicted each other. The order was reversed and the original agreement and its disposition of the cars was reinstated.

The appellate decision is here.

Can a Prenuptial Agreement Make You Smile More

Posted by Ron Kauffman on

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.

When a Prenuptial Agreement Fails

Posted by Ron Kauffman on

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.

Yellowstone S5 E1 Dances with Prenups

Posted by Ron Kauffman on

Like an episode of Yellowstone, Kevin Costner and his estranged wife Christine Baumgartner are in court fighting over the validity and enforceability of the kind of agreements many celebrities sign before their marriage: prenups.

Yellowstone Prenup

“We’re enemies now”

Costner and Baumgartner have already battled it out over custody and living arrangements with Baumgartner being forced to move out of the family home by July 31. Now the issue is the validity of the prenup. Although not reported in the Costner divorce, some people insist on putting unique clauses in their agreements.

Some couples have ‘anti-cheating’ clauses for instance. An anti-cheating clause tries to penalize a spouse for having an affair. There are also requests for clauses such as the one requiring that a spouse have sex on demand, or one in which a spouse must maintain a certain weight to remain in compliance with the prenup.

These sort of morality and other provisions are not really enforceable and may even violate public policy. Some of the things you can do to make sure your prenup is enforceable is to make sure that the agreement is fully negotiated, both parties have an opportunity to hire a lawyer, and that full financial disclosure is exchanged.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for cowboys on the Yellowstone. Anyone who brings personal or business assets 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 prenups can be challenged in court too. 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.

“You are the trailer park. I’m the tornado”

A prenup also has the unintended consequence of forcing people to talk about money before they start their marriage. It is difficult to have conversations about ‘what if’ we break up or one of us dies during marriage”, so couples tend to avoid discussing important questions. Only after people are married do spouses learn each other’s financial expectations. A prenup negotiation gets all that into the open up front.

Divorce attorneys add that some people might not marry after understanding their partner’s financial expectations – like sharing property owned before the marriage equally, and more. Jessica Simpson, who did not sign a premarital agreement when marrying Nick Lachey, later regretted her decision:

“I wish I would have signed a prenup and that’s the funny thing is that Nick wanted me to sign a prenup, but I was, like, so offended. I was like, ‘We’re going to be together for the rest of our lives. We’re saying our vows to God and in front of all of our family and friends. Like, this never gonna end.’ And, we didn’t sign a prenup.”

The reasons for signing a premarital agreement can vary, from a strong distrust that marriage can truly last a lifetime, to the need to control a partner, or simply good planning for the protection of both spouses. Prenups can be complex too. However, prenups can also be a major advantage when it comes to keeping lives in order in the event of divorce.

The Fox article is here.

Celebrities and Prenuptial Agreements

Posted by Ron Kauffman on

The news from Nashville is that academy award winning actress, Reese Witherspoon, has initiated divorce proceedings against her husband Jim Toth. The divorce announcement is a reminder that prenuptial agreements are not only for protecting celebrities.

Prenuptial agreements

Not So Clueless

Reese Witherspoon is a very successful actress, and winner of an Academy Award, a British Academy Film Award, a Primetime Emmy Award, and two Golden Globe Awards. She ranks among the world’s highest-paid actresses. Witherspoon also owns Hello Sunshine, a media company she started during the marriage with Strand Equity Founder and Managing Partner Seth Rodsky.

Witherspoon has confirmed the couple’s 11-year marriage is ending in divorce. According to court documents, she has cited irreconcilable differences as the reason behind the divorce. The divorce was filed in a circuit court in Nashville, where the couple live with their 10-year-old son.

Reports indicate that court documents she filed reveal that the couple signed a prenuptial agreement in March 2011. In the court documents, Witherspoon alleges that the prenuptial agreement is valid, and that their prenup will provide “adequate and sufficient provisions” for the distribution of their assets and debts.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for celebrity, academy award winning actresses. They are also about more than just resolving what to do with a successful media company created during a marriage.

Any couple who brings any personal or business assets to their marriage can benefit from a prenuptial agreement. They are important to have in place before a couple starts investing in businesses, properties, and other investments.

But prenups are frequently 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 Act 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 prenuptial agreement can enter into a premarital 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.

While prenuptial agreements may be challenged in court, we will have to wait and see if Witherspoon’s husband will try to avoid their prenuptial agreement. 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.

Divorce in Pleasantville

In court documents, in addition to alleging the couple has a prenuptial agreement in place, Witherspoon also asks the court to designate her and Toth as joint custodians of their 10-year-old son. Witherspoon and her CAA talent agent husband announced their divorce in a joint statement, just days before their 12th anniversary.

They announced personal news to share. They also stated it was with a great deal of care and consideration that they have made the difficult decision to divorce. They mentioned they have enjoyed so many wonderful years together and are moving forward with deep love, kindness and mutual respect for everything they have created together.

“Our biggest priority is our son and our entire family as we navigate this next chapter. These matters are never easy and are extremely personal. We truly appreciate everyone’s respect for our family’s privacy at this time.”

The People article is here.

Marital Settlement Agreements and Vital Organs

Posted by Ron Kauffman on

Negotiating for your vital organs is not a part of any martial settlement agreement. However, for one Israeli woman, donating her kidney to save the life of her children’s father, her ex-husband, was a choice she made above and beyond her contractual responsibilities.

Marital Settlement Agreement Kidney

Eilat of Love

Although the ex-wife, Adel, has been divorced for nearly ten years, her divorce and the terms of her marital settlement agreement, did not stop her from donating a kidney to her former husband when she found out his health condition had worsened.

The 41-year-old Rosh Pina resident said in an interview with fashion magazine, Laisha, that she and her spouse have been divorced for nine years, but she did not hesitate to answer the call for help – not least because of the children, of whom the two share custody.

“When I woke up after the surgery, there was some manageable pain. A week later I still feel it, yet anxious to go back to being the Mitzpe Shalom resort manager in the Golan Heights.”

She was aware of her ex-husband’s kidney problems when they met. She states she was 24 at the time and he was 29. He was an accountant and had already been donated one kidney from his mother. He told me right away, but I didn’t care. When I was pregnant with our second child, his father donated another kidney. Seven years later we got divorced. The second kidney held up for 11 years, up until six months ago.

After their divorce their relationship was complicated. But in the last few years things improved:

 We’re both involved with other people now. His girlfriend is wonderful and so is my boyfriend. His name is Eitan, and I told him when we met that if there was a time my ex would need my kidney, he’ll have it. Eitan accepted it right away.

Her ex-husband tested positive for COVID eight months ago and required dialysis and a new kidney. The woman told her ex-mother-in-law, that it was her turn to step up for him. It was very emotional.

Without informing him, she began moving things along. When it was clear she was a match, they informed the kids and then her ex-husband. “He thanked me, but was also concerned about who will attend to the kids while we’re both in surgery.”

Florida Marital Settlement Agreement

I have written about people donating vital organs to their ex spouses before. Erica Arsenault, of Massachusetts, volunteered to donate a kidney to her former mother-in-law years after her divorce. But donations of vital organs are not terms you see in a marital settlement agreement. Donations go beyond the requirements of an agreement.

Most family law cases are resolved by agreement, not by trial. A Marital Settlement Agreement is the method to resolving all of the issues, and is the final product of the negotiations.

A marital settlement agreement puts in writing all the aspects of the divorcing parties’ settlement. Topics covered in the Marital Settlement Agreement include the parenting plan and timesharing schedule, the division of the parties’ assets and liabilities (called “equitable distribution”), alimony, child support, payment of attorney’s fees and costs, and any other items to which the parties have agreed.

A marital settlement agreement entered into by the parties and ratified by a final judgment is a contract, subject to the laws of contract. The enforceability of contracts in Florida is a matter of importance in Florida public policy.

Accordingly, because a marital settlement agreement is treated like any other contract, and is subject to interpretation like any other contract, they can be enforced by the court.

New Heights

According to Adel, there was no hesitation:

It was clear to me I would do this. He’s the great father to my children, and they need an involved parental figure in their lives to be happy. In my opinion, when you get divorced, the children should always be top priority.

Interestingly she did not consult with anyone. Some family members and friends raised an eyebrow, but they realized how determined she was. Her ex-husband and she had some heart-to-heart conversations about this, and there were people who helped move the process along from an operational perspective.

Doctors explained after the operation she would feel no difference in her day-to-day life. It’s like we were born with two kidneys so we would give one away when needed. What Adel did not anticipate is that she would be a match for someone else while waiting for the surgery.

The donation coordinator at Rabin Medical Center called and said there’s a young man who has been waiting for a kidney match for four years and she was ideal for it. She cried, because now there were two people who needed her help to live.

She spoke with both her ex-husband and the other, who said that as far as he’s concerned, the young man’s new kidney would come from her, while her the other person would receive his from another altruistic donor, who is a doctor himself from Soroka Medical Center.

The organ donation department director at Rabin Medical Center, said:

“This a complex multi-donation event. Whenever that happens, we feel very excited to be able to grant someone a new lease on life.”

The Ynet article is here.

Enforceability of Islamic Prenuptial Agreement

Posted by Ron Kauffman on

The Texas Supreme Court recently had to decide whether an Islamic prenuptial agreement is enforceable. Especially interesting is whether the agreement’s, Arbitration by Fiqh Panel Clause, can be enforced in a family law case involving children.

Texas Islamic Agreement

‘All My Exes Live In Texas’

The Wife, Ayad, and her Husband, Latif married in 2008. In connection with their marriage, they signed an “Islamic Pre-Nuptial Agreement”.

In the Islamic Pre-Nuptial Agreement, they said: “Belief that Islam . . . is binding on them in all spheres of life, and that any conflict which may arise between the husband and the wife will be resolved according to the Qur’an, Sunnah, and Islamic Law in a Muslim court, or in its absence by a Fiqh Panel.”

The three-person Figh Panel will be selected and provides that the panel “will not represent the parties in conflict, but rather, serve as impartial arbitrators and judges, guided by Islamic Law and its principles.” The majority decision of the Fiqh Panel will be binding and final.

Although the Wife’s signature appears on the Islamic Pre-Nuptial Agreement, she alleges that she did not become aware of its contents—or even see it—until she and her husband began experiencing marital difficulties in 2020.

The Wife argues she was “defrauded” into signing a prenup that violated her fundamental rights. In January 2021, she filed for divorce and sought to be appointed joint managing conservator of the couple’s six-year-old son.

Wife argued the term “Islamic Law” was too indefinite; the Agreement was void because it violated public policy; Husband’s previous breaches of the Agreement had excused Ayad from performing; and the Agreement was unconscionable.

The trial court held a hearing on Husband’s motion to enforce, and concluded it would order the parties to arbitrate under the Agreement. The court held a second hearing in which it gave each party twenty minutes to address solely whether the Agreement was entered into voluntarily.

The trial court ruled it had no discretion under the Texas General Arbitration Act but to enforce the Agreement and refer the parties to arbitration per the terms of their Agreement, but would review the award to determine if it violated constitutional rights or public policy, and would hold a hearing to determine whether the award was in the best interest of the child.

The Wife sought review in the Supreme Court of Texas.

Florida and Islamic Prenuptial Agreements

I’ve written about religious prenuptial agreements, such as the Mahr (Islamic Prenuptial Agreement) before. Prenuptial agreements are not just for celebrities. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement.

Prenups are also important to have in place before a couple starts investing in businesses, buying properties, and accumulating mountains of debt. Many religions, especially Islam, have terms couples want to be governed by in the event of divorce.

But just having a prenup is not enough. Prenups are frequently 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.

Florida also adopted the Uniform Premarital Agreement Act. The UPAA requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Because prenuptial agreements may be challenged in court, Florida courts must consider things such as fraud, duress, coercion, in addition to the constitutionality of prenups, whether they violate Florida law or Florida public policy.

‘Deep in the Heart of Texas’

The Supreme Court of Texas agreed with the Wife that the family court was required to hear and determine her challenges to the Agreement’s validity and enforceability before referring the parties to arbitration.

The Family Code, which provides that a trial court “may” refer suits for dissolution of marriage to either binding or nonbinding arbitration based on the parties’ written agreement is subject to certain limits.

Before arbitration, if a party to a divorce asserts that the agreement to arbitrate is not valid or enforceable,” then the court may order arbitration only if it determines that the agreement is valid and enforceable.

Here, the court incorrectly concluded it “must refer parties to arbitration when it is contracted by the parties,” and that it had “no discretion but to enforce the Agreement.” Since the trial court did not resolve the Wife’s challenges in its order compelling arbitration, and incorrectly concluded it could not, the trial court erred.

The Texas Supreme Court opinion is here.