Category: Agreements

Florida Collaborative Family Law Process

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, May 16, 2016.

Divorce is not easy. Fortunately, Florida has joined several other states adopting the Collaborative Law Process, an alternative to traditional notions that divorce must be a war. Here’s what is involved.

I’ve written about various types of alternatives to traditional divorce cases. Under the new collaborative law, the following issues are subject to resolution through the collaborative law process:

-Marriage, divorce, dissolution, annulment, and marital property distribution;

-Child custody, visitation, parenting plans, and parenting time;

-Alimony, maintenance, child support;

-Parental relocation with a child;

-Premarital, marital, and post-marital agreements; and

-Paternity.

There was a recent article in the Tampa Bay Times about the collaborative process and the new law. The Collaborative Law Process Act creates a pathway toward a more civil and less contentious way for couples to change the status of their relationships.

Essentially, each spouse retains a specially trained collaborative attorney. Then, both parties would hire a mental health professional – to guide both of them toward an emotional outcome – and an independent financial adviser.

Then, everyone – the spouses, their attorneys, and the retained professionals – sit down and examine all the relevant issues. Everyone shares documents and information.

This process is private and confidential in stark contrast to a litigated divorce, where testimony and evidence may be considered to be in the public domain.

It is a voluntary process, and all issues are explored and settled via negotiation. Either party can put an end to the collaborative process at any time, but there are consequences to that; if litigation follows a failed collaborative process, neither lawyer can represent their client in the litigation, and the professionals cannot be deposed or testify in that action.

Therefore, unlike any other alternative dispute resolution process, the lawyers “have skin” in working toward resolution versus conflict.

Collaborative law is a new way of doing business for everyone involved. But, there are a few steps that remain before the statutes created by the Collaborative Law Process Act become effective.

The Florida Bar must submit the collaborative rules of procedure and rules of professional conduct that lawyers in the state must follow in order to practice collaborative law, to the Florida Supreme Court for approval and implementation, making the collaborative process more accessible for Florida families.

The Tampa Bay Times article is here.

Florida Prenuptial Agreements

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, May 11, 2016.

Here are some statistics: the average wedding costs $20,000; June has the most weddings; $8 billion is spent on honeymoons. Marriage is expensive, which is why you may need a prenuptial agreement.

Many think prenuptial agreements are for the wealthy. But, you don’t always enter a marriage with riches, or guarantees that the bliss will last. It might not be a bad idea to have a plan in place.

Prenuptial agreements, or “prenups,” are contracts entered into before marriage that outline the division of assets in case of divorce or death.

They resolve things like alimony, ownership of businesses, title of properties, and even each spouse’s financial responsibilities during the marriage.

There are many other concerns that can be addressed in the contract:

– 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.

I’ve written about the need for prenups before. There are times when a prenup is a “must-have”:

1. When one person enters the marriage with significantly more money or assets than the other

2. When one or both future spouses have family money or inheritances,

3. When you want to keep parts of your finances separate: such as separate bank accounts, and a joint account for paying household bills.

One of the points of a prenup, is that if money in the bank becomes mixed, accounting for any increase or loss becomes very difficult to trace and unwind if you end up in divorce court.

Avoiding Future Arguments

Arguments about money are a known predictor of divorce. In order to avoid that, it is better to discuss with each other the terms of a prenuptial agreement when times are good. Difficult talks about money can uncover things that could be disastrous if put off until several years into the marriage.

The wedding and honeymoon will be expensive, and the courtship phase can conceal potential problems. Discussing financial issues can bring couples closer together when it matters most, and reduce the chance of a bitter financial argument later.

The wedding statistics article is here.

Religious Prenups

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Thursday, April 21, 2016.

Not only are prenuptial agreements on the rise among all engaged couples, they are also becoming very popular for religious couples. What is the intersection of prenups and religion?

Prenuptial agreements, or “prenups,” are contracts entered into before marriage that outline the division of assets in case of divorce. They may touch on things like spousal support (alimony), title or ownership of businesses and properties, and even financial duties and responsibilities during the marriage.

While most people think prenuptial agreements deal with assets and alimony, there are a lot of other concerns that can be handled:

– 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

Now there is something new to consider: your religion. I’ve written before about religious marriage contracts, especially Muslim Mehr agreements.

Currently in Florida, the issue of whether a Muslim prenuptial agreement is enforceable depends on whether it complies with Florida’s secular contract law. If so, secular terms may be enforceable as any contractual obligation.

What about Jewish Prenups? The halachic prenup, as it is called, is a document binding under Jewish law that helps to ensure that a woman, would be able to obtain a religious divorce from her husband.

The reason, as many young couples are discovering:

“Part of going into a relationship with someone is making sure that you trust each other,” said Mr. Morrison. “We care enough about each other now to be protected in the unlikely event something were to change.”

The halachic prenup – which dates back decades and has been championed by the Beth Din of America, the U.S.’s biggest rabbinical court – has gone mainstream in some circles as a mechanism to avoid the messy, sometimes abusive situations that advocates say can arise as divorce becomes more common in the Orthodox Jewish community.

The Catholic Church does not have a blanket prohibition of prenups. In certain cases, they can be quite valid and helpful. When a widow marries a widower, for example, and they both have children from their previous marriages, a prenup is a legitimate way of determining what is marital property and what is non-marital as a basis for determining the inheritance rights of each spouse’s children.

Postnuptial Agreements are on the Rise

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, April 4, 2016.

Like prenups, postnups are contracts that spell out how assets and debts should be split. Divorce lawyers are citing an increase in spouses asking for postnuptial agreements in the last three years.

The Wall Street Journal ran an article last month on some of the common reasons for a postnup:

Sometimes, it is to punish a spouse for bad behavior, such as infidelity. Other times it is for the opposite reason: to show commitment by guaranteeing a richer settlement if things don’t work out.

I’ve written about postnuptial agreements in the past. They are also used when, for other reasons, spouses want to change the financial agreements set in a prenup.

Postnups allow you to change the law. Right now in Florida, there has been a bill passed to modify the alimony law. The bill is waiting the Governor’s signature.

Through an agreement you can modify Florida’s legal standards for awarding alimony, in addition to modifying what the current law says about the amount of support and the duration of the alimony period.

The probability of divorce is around 50% for first marriages. For second marriages, it’s more like 70%. What some people 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.

Postnuptial agreements are similar to prenuptial agreements, but are entered into after a marriage. Postnups can cover everything from how to divide financial assets in divorce to limits on partners’ weight gain – just as prenups can.

Prenuptial agreements and Postnuptial agreements can be extremely important if you are thinking of marrying. They are not just for the ultra-rich, but are an important part of every healthy marriage decision.

The Wall Street Journal article is here. Thanks to Thomas Sasser for the pointer.

Divorce Tips: After the Case is Over

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, March 14, 2016.

Forbes magazine has an article about some important things to immediately implement your marital settlement agreement to make it work.

I’ve written about practical tips for divorce before. Consider that once the lawyers are gone, all you have to show is a piece of paper. Putting that final judgment aside could be a mistake.

There are some immediate steps to take to ensure your interests are protected – and your financial documents reflect your new marital status.

As Forbes magazine asked: What should you change? In two words, almost everything.

Once your divorce is final – meaning a final judgment is entered – you should review and revise, if necessary, the following legal and estate planning documents:

Trusts

Powers of Attorney (property, healthcare, HIPAA, etc)

Will

Life insurance policies

Retirement accounts

What can happen if you don’t?

One example is common. If your ex-spouse remains the beneficiary of your life insurance policy and you pass away, the proceeds will go to your ex-spouse instead your children. That may be what you intend, but probably not.

The opposite can also be true. In Florida, the plain language of the documents controls. To the extent your or your former spouse claimed a right to remain as the beneficiary under a life insurance policy – as a condition of the dissolution of marriage – your rights can be waived.

In one Florida Supreme Court case, a life insurer sued to determine whether a former wife or the former husband’s sister was entitled to proceeds of his life insurance policy. The Florida Supreme Court held that the former wife of the insured remained primary beneficiary on his life insurance policy.

Also, consider your retirement accounts. After a divorce, you may revise your Will to reflect your desire that your 401(k) goes to your children, but if your wife remains the beneficiary of the plan, she will receive those funds.

Retirement plan designations can trump estate plan stipulations. The same is true for life insurance; proceeds will go to the named beneficiaries of those policies and not to persons named in a Will or other estate plan document.

A divorce judgment is legally binding. If, as a part of your divorce, you agreed that your ex-spouse would remain the beneficiary of a life insurance policy, don’t change the beneficiary designation on the policy itself. But, if that was not your intention, and the agreement is clear, unless you implement your marital settlement agreement, you could be in for a surprise.

The Forbes magazine article is here.

Collaborative Divorce: Florida Law Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Thursday, March 10, 2016.

If you wish you could collaborate to reach agreement in parenting and financial issues, now you can. Florida just passed the Collaborative Law Bill. What’s the collaborative process all about?

I’ve written extensively on all types of alternatives to court to end your divorce and paternity disputes. The Collaborative Law Process is a voluntary way to resolve your case by agreement – and without the threat of litigation.

It starts when both sides and their lawyers sign a “collaborative participation agreement,” committing to a cooperative process.

The lawyers must withdraw if the process fails, so lawyers are motivated to resolve your case. It also costs less, takes less time, causes less stress, opens up new possibilities and should be considered by every couple separating.

Last week, the Florida Legislature passed the Collaborative Law Bill. The bill created Florida’s new Collaborative Law Process Act. The Act is based on the Uniform Collaborative Law Rules, which were created by the by the Uniform Law Commission in 2009.

The rules have already been adopted in 12 states, the District of Columbia and three sections of the American Bar Association. Passage of the Collaborative Law Bill puts Florida at the forefront of family law again.

The new law will provide much needed law for beginning, concluding, and terminating a collaborative law process. It also provides statutory privileges and confidentiality of communications to facilitate the process.

The collaborative law movement started in 1990. Today, collaborative law lawyers like myself are helping resolve disputes in every state of the United States, and in every English-speaking country.

Under the new law, the following issues are subject to resolution through the collaborative law process:

-Marriage, divorce, dissolution, annulment, and marital property distribution;

-Child custody, visitation, parenting plans, and parenting time;

-Alimony, maintenance, child support;

-Parental relocation with a child;

-Premarital, marital, and post-marital agreements; and

-Paternity.

In the collaborative process, the spouses and lawyers meet in a series of sessions at one location which is attended, if necessary, by a forensic accountant and mental health professional who are mutually chosen by the lawyers.

Everyone is tasked with discussing a wide range of possible resolutions for both parties; much more than are ever available in litigation.

Because you are designing your own solution, parties to the collaborative process are more pleased with the results and future compliance than those who have to litigate.

Collaborative Law has been available in Florida for years, and now it will be protected by statute. The Effective Date of the new law will be July 1, 2016, but you can start your Collaborative case right now.

Prenups & the standard Zombie Apocalypse Clause

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, February 17, 2016.

Signing a prenuptial agreement the day of your wedding is frightening. Is it enforceable? More frightening, do you need the new Zombie Apocalypse Clause?

Amazon Web Services just launched a new feature for its cloud based hosting service called “Lumberyard.” Lumberyard’s Service Terms agreement has an interesting clause:

The Lumberyard Materials are not intended for use with life-critical or safety-critical systems . . .

However, this restriction will not apply in the event of the occurrence (certified by the United States Centers for Disease Control or successor body) of a widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.

What about prenups? Are there loopholes? Florida has a policy of enforcing prenuptial agreements. While they can be difficult to void, it is not impossible . . . even if human corpses reanimate to consume the living.

I have written about agreements many times before. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Florida courts consider things such as fraud, duress, coercion, and whether there was financial disclosure. Under Florida’s Uniform Premarital Agreement Act, courts consider:

1. Fraud.

A prenuptial agreement requires each spouse to make full disclosure of assets and liabilities. In divorce, it is quite common to undervalue assets or fail to disclose them at all. If you can prove income or assets were not fully disclosed, you may have grounds to have the agreement voided.

2. Duress, Coercion or Overreaching.

If your prenuptial agreement was the product of fraud, duress, coercion, or overreaching, you may be able to block its enforcement. However, it can be extremely difficult to prove duress, coercion and overreaching.

3. Unconscionable.

You may be able to prevent enforcement if the agreement was unconscionable when it was executed and, before execution of the agreement, you were not provided a fair and reasonable disclosure of the assets and debts of the other party; you did not voluntarily and expressly waive, in writing, any right to this disclosure; and you did not have, or reasonably could not have had, an adequate knowledge of the other party’s assets and debts.

Keep the UPAA in mind if you are trying to get out of your prenup. And if the Centers for Disease Control is warning about “human corpses” seeking “to consume living human flesh”, keep that in mind too.

Amazon’s AWS web service agreement can be read here.

Reason to Settle #128,543,28… The judge may punch you

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

If you can settle your divorce, you may save thousands in fees and emotional aggravation. There are other reasons to settle. For instance, the judge might get mad and punch you in the head.

The Wall Street Journal’s Law Blog reported about a fight that broke out in a Florida courtroom between the Judge and criminal defense attorney. Today, the Florida Supreme Court rendered its own decision.

I’ve written about disorder in the court before. The moments leading up to the altercation were caught on video in which the judge could be heard threatening to beat up the lawyer.

“If you want to fight, let’s go out back, and I’ll just beat your ass,” Judge Murphy, a retired U.S. Army Reserve colonel, warned Mr. Weinstock before the two headed into a hallway off-camera behind the courtroom, at which point a violent scuffle could be heard.

For divorcing parties, the mediation process is a way to avoid having your own courtroom brawl. Mediation involves a neutral third-party mediator that meets with the lawyers and divorcing couple to reach an agreement on the issues in their divorce.

In addition to having angry judges decide your case, mediation offers a lot of flexibility, in terms of making your own decisions about what works best for your family.

Mediation, however, is not appropriate for all couples. For example, if one spouse is hiding assets or income, you may have to head to court where a judge can ‘take him or her to the woodshed’ so to speak.

Unfortunately for Judge Murphy, his courtroom antics landed him in front of Florida’s Judicial Qualifications Commission, which investigates and hears allegations of misconduct by Florida judges.

The JQC recommended the judge get a public reprimand, be suspended without pay, pay $50,000, get mental health therapy and complete a Judicial Education Courses.

That recommendation did not fly with the Florida Supreme Court. The Florida Supreme Court can accept, reject, or modify the JQC’s recommendations.

One witness, Suzanne Carter, saw Judge Murphy grab Mr. Weinstock’s collar with his left hand and raise his right arm as if he were going to punch Mr. Weinstock. Ms. Carter heard “a bunch of punch, punch,” and Judge Murphy using expletives.

The Supreme Court removed the judge from office:

Because of Judge Murphy’s appalling behavior, we conclude that there is clear and convincing evidence that Judge Murphy engaged in “conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office.”

Today’s Florida Supreme Court Opinion is here.

More Couples Getting Prenups

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, October 30, 2015.

A recent survey of divorce lawyers shows that more than 60% cite an increase in prenuptial agreements. What’s behind the uptick?

I’ve posted about the importance of prenuptial agreements before. Yet only 5 to 10% of marrying Americans get prenuptial agreements. Recently, the Wall Street Journal ran an article worth talking about.

People forget that prenups are not just about how assets are divided in a divorce. Prenuptial agreements also can determine who gets what when one spouse dies.

Although 50% of marriages end in divorce, but of those that don’t, 100% end in death. In either case, assets have to be distributed. Prenuptial agreements can prevent heartache and wasting money to distribute those assets.

Two big reasons prevent people from asking for prenuptial agreements:

(1) Many couples feel a prenup predicts doom. It almost feels like you’re planning to fail. Most people are optimistic about their marriages, and think that requesting a prenuptial agreement would signal uncertainty.

(2) Many couples also believe that, in spite of the statistics showing that more than half of all marriages end in divorce, it won’t happen to them. Statistically, most think their own chance of divorcing is about 12%.

However, prenups provide certainty and protections beyond the law:

A prenup protects your premarital assets from a claim by your spouse in the event of death or divorce. In Florida, assets that you owned before marriage aren’t subject to a claim in a divorce – but increases in value could be.

In the event of your death, even if you don’t make a provision in your will for your spouse, Florida law may give your spouse certain rights to a share of your estate.

If your premarital assets are significant, you can ensure that your spouse will share in it only as much as you wish should you divorce or die. This protects you and the inheritance of your children from a prior relationship.

Prenups protect your income earned during the marriage. For instance, without a prenuptial agreement, you could have to pay alimony to your ex-spouse. An agreement can set that amount – or eliminate it.

Currently there are two Florida bills aimed to eliminate permanent alimony, and reduce long-term alimony. This hurts traditional couples in which one spouse left the workforce. Agreeing in advance about how to divide assets earned or future earnings can protect the stay-at-home spouse.

More couples are entering prenuptial agreements because they think they will actually strengthen their marriages. Providing couples with protection from the unknown outweighs the pain of talking about these issues before the wedding.

The Wall Street Journal article is here.

Is Mediation Privileged?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, October 19, 2015.

What happens in mediation stays in mediation. Sort of. The truth is that while confidentiality is one of the hallmarks of mediation, confidentiality is not absolute.

Mediation is a process where a neutral, third person – called a mediator – encourages and facilitates resolving your case. Consider it an informal meeting in which the goal is to reach a voluntary agreement.

A mediation privilege does exist in Florida, which means that in general, whatever is said during mediation is considered privileged – and can’t be disclosed to the court, or other people.

The law is found in the Mediation Confidentiality and Privilege Act, which Florida enacted in 2004. Generally, all communications during mediation are confidential.

If you disclose things to others, you could be subject to sanctions, equitable relief, compensatory damages, attorneys’ fees, mediator’s fees, and costs incurred in the mediation proceeding.

The confidentiality law also means you can refuse to testify, and prevent others from testifying about mediation communications. But, there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless you agree otherwise.

‘There is a strong reason to protect discussions during mediation; however, there is an equally strong policy argument to promote the enforcement of settlement agreements. If the agreement is needed to show fraud, duress or illegality, then the settlement agreement can be admissible in court.’

I’ve written about prenuptial agreements and post-nuptial agreements before. The act provides two other significant exceptions to confidentiality for mediation communications: those “willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence”, and those intended “for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.”

The benefit of this confidentiality is that it allows parties the ability to speak more freely during mediation, without fear that what they say will affect the outcome of their case.

Meet with your attorney before the mediation to review any outstanding questions you may have about the process, and about the mediation privilege.