Category: Agreements

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.

Prenups for Couples Not Marrying?: Cohabitation Agreements

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

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

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

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

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

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

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

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

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

Cohabitation agreements can address:

– Support payments

– Selling or keeping the jointly owned home

– What to do with jointly owned property if someone dies

– Medical decisions

– Who pays household bills and taxes

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

How Detailed Does your Prenup Have to Be?

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

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

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

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

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

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

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

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

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

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

Prenuptial Agreements Now Treated (more) Uniformly in Florida

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

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

The Florida Supreme Court opinion is available here.

Getting Around A Prenup

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

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

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

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

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

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

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

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

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

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

Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable. Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Prenuptial Agreements and Timing

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

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

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

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

– Will you have to care for an older parent

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

– Agreeing to spending habits

– Who pays for what credit card debt

– Who handles the costs of a business

– Who pays the taxes

– What happens if someone dies or becomes disabled

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

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

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

Wedding Checklist: Prenup and Premarital Counseling

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, April 1, 2015.

Before every wedding, you are surrounded by parents, friends, florists and caterers. You’re caught up in the excitement. This leads many to mistake the wedding as the end of the process when it’s really the start. A prenup can help.

As the New York Times recently reported:

“Marriage can be a minefield that blows up without the proper navigation these days,” said Debbie Martinez, a Miami relationship coach. That is why some couples are taking pre-marital counseling sessions to refocus their attention on each other and the lives they will lead together.

Unlike the marriage counseling people do years after a wedding, premarital counseling addresses unrealistic expectations of “happy, roses and rainbows,” said Jocelyn W. Charnas, a clinical psychologist in Manhattan who counsels engaged couples.

“The fundamental point about premarital counseling is to lay a foundation for empathy, communication and partnership,” Dr. Charnas said. This is especially true, he said: “for those couples in their 20s and 30s with good jobs and money saved. They view marriage as the capstone moment. They have arrived.”

Premarital counseling can serve a similar purpose as prenuptial agreements. I’ve written about pre-wedding preparation before, especially the importance of prenuptial agreements.

A prenup can help with the following:

Keeps Your Non-Marital Property Non-Marital. The property you brought into the marriage is yours. But over time it is common for people to start mixing things up. If you put it in writing, you can avoid this problem down the road.

You Can Change the Law. Right now in Florida, there is an ongoing legislation about alimony. Through an agreement you can modify Florida’s legal standards for awarding alimony.

Avoid Expensive Endings. A prenuptial agreement can simplify things by resolving issues ahead of time, way before death or divorce occurs. Once you have entered an agreement, everything should become cheaper.

Protect Your Children’s Inheritance. An agreement helps assure your children that any inheritance is protected, and they don’t need to resent the new spouse.

Citing the findings of a National Marriage Project, Mr. Wilcox said, “Couples who do premarital counseling fare better.” When two people love each other, it is hard to talk about kids, finances and other difficult subjects.

Some have other names for what can occur after the wedding cake is cut and the presents opened: the “post-wedding blues” or “crash.” It is a common phenomenon that typically occurs as life returns to normal in the days and weeks that follow the wedding and the couple ceases to be the center of everyone’s attention.

Voicing these concerns and strategizing about how to manage them can be tremendously helpful.”

The New York Times article can be read here.

Pet Custody and Prenups: The ‘Pup Nup’

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, February 25, 2015.

Who gets custody of the family dog? There is an uptick in people fighting over their cats and dogs when they divorce. The battle is contentious, as your dog is a family member. Can a prenup help?

I’ve written on this topic before. Your pet dog may be considered by you to be a member of the family, but under Florida law, Brownie the chocolate Lab, is merely personal property to be divided.

Not all states have ruled out a visitation schedule for dogs. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

Florida doesn’t because Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children, that courts cannot undertake the same responsibility as to animals.

Recently, some New York courts have ruled that pet custody divorce disputes are treated differently than other divorce disputes. Unlike a child custody fight, pet custody fights are resolved on a “best for all concerned” standard.

A CBS news report showed many couples have entered into “Pup-Nups” -agreements specifying who gets custody of the pet in the event of a divorce, who pays the veterinary costs, and who is responsible for caring for the family pet.

A prenuptial agreement could make provision for visitation after a break-up. But is it enforceable?

In New Jersey, a court did order shared custody of a pet. After the parties broke off their engagement, the ex-girlfriend allowed her ex-boyfriend to have visitation with Dexter, the dog. The ex-boyfriend refused to return Dexter. The court found that pets are a special category of property and enforced the parties’ oral agreement allowing them to spend alternating, five-week stretches with the dog.

Many states may not uphold pet custody clauses though. In Pennsylvania, for instance, a couple signed a settlement agreement that gave the wife custody of the dog, and provided the husband with visitation. The court explained that Pennsylvania considers dogs to be property, and the Husband’s motion to enforce visitation under the contract was void.

Despite the current law, a pet is a special kind of property. Pets are unique and irreplaceable. Pets are more like antique or valuable art than a generic table, lamp, or toaster.