Category: Agreements

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.

Prenups Are Not Only for One Percenters

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, January 23, 2015.

Most people think of prenuptial agreements as contracts for the rich and famous. Most people are wrong though. Prenups can deal with non-monetary issues too, making them a good idea for anyone marrying.

As USA Today recently reported:

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), ownership of businesses and properties, and even financial duties and responsibilities during the marriage.

“Since getting into the business and seeing what can happen to family relationships in a divorce, I’m not sure there is an instance where a prenup would be a bad thing,” says financial adviser Jeffery Cortright, president of Phase 2 Investment Advisers in Jenison, Mich.

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

I’ve written about this issue before. Prenups aren’t only for the super-rich, but having a lot of assets is an excellent reason to have one. Even when couples have less than they want, the effort that goes into a prenuptial agreement can have benefits far beyond the financial.

There are cases when a prenuptial agreement is a no-brainer. If one person is entering the marriage with significantly more money or assets than the other, or if one or both individuals have family money or inheritances, a prenup is necessary.

Additionally, if you plan on keeping your finances separate, keeping separate bank accounts, or if you want one joint account for paying household bills, a prenuptial agreement is a great way to confirm it.

One of the cardinal rules of a prenuptial agreement though, is following the agreement by keeping accounts separate after getting married. Generally, once you have moved to joint ownership and mix up accounts, dividing the account after separation could be tricky.

If arguments about money are a top predictor of divorce, agreeing on the terms of a prenuptial agreement, and having the conversations about major issues you’re concerned about now, will lessen the chances of financial arguments and misunderstandings later.

The USA Today article can be found here.

Are Muslim Postnuptial Agreements Enforceable?

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, July 15, 2014.

Postnuptial property division, like prenups, help couples plan their future. Can agreements have Muslim or other religious principles in them? Illinois recently ripped one up.

I’ve written before about the enforceability of Muslim marital contracts. As the Volokh Conspiracy recently reported though, there is a new contract from Illinois that had some mixed non-religious and religious provisions. For example:

Husband shall name Wife as a tenant by the entirety of the property. Should Wife unreasonably file for divorce she will forfeit her right to any share of the home.

Husband and Wife agree to base their life and marriage on the Holy Quran and Sunnah, as practiced in the Islamic religion.

Husband and Wife agree not to call the police for any incident.

Husband and Wife agree that any violation of any of this agreement avails each party to forfeiture of all rights herein, including custody.

The Illinois appellate court said the contract was unenforceable. Not because you can’t have Islamic principles in a contract, but because the contract violated normal, non-religious principles. For example:

It gave the husband sole power to determine which parent gets custody of the children.

An “unreasonable divorce,” the linchpin on which the entire agreement turns, is vague, ambiguous, and uncertain.

The court also held the agreement was “substantively unconscionable” because it was so one-sided. The Wife forfeited all her rights to the largest asset, if she unreasonably filed for divorce, but not the husband.

Muslims, as all religious peoples, are entitled to enter into contracts that reflect their unique religious principles. But all agreements in the United States are limited by standard contract law, family law and Florida public policy.

The Volokh Conspiracy is here.

Should Your Prenup Agreement Have a Social Media Clause?

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Monday, June 23, 2014.

The Onion, a satirical website, jokingly reported some property divisions include fines as steep as $50,000 for posting an unflattering picture of their partner on Facebook. It got me to thinking, what if this wasn’t satire?

Prenuptial agreements should include a “social media clause”. You know, a clause that protects you from a public relations disaster because your wife liked that cute picture of you passed out on vacation. Or one that prevents your husband from uploading a picture of you in the bathroom because he thought it was funny.

You and your partner could agree not to post, tweet, or otherwise share certain positive, negative, insulting, embarrassing, or flattering images or content. While married, you have control over what gets posted, but after a angry breakup, it could be “anything goes.”

It would be helpful to have a guarantee that a bitter Ex won’t publicly humiliate you on a world-wide scale, causing you reputational harm, and making it harder to meet someone new, or even hurting your career.

As Manhattan-based psychotherapist Diane Spear puts it:

“You could see a side of someone you wouldn’t have believed existed when you’re flushed with the romance and newness of the marriage,” said Spear.

Or as Fox News reports:

If you’re marrying someone and you’re concerned that they’re going to put a nude picture of you on the Internet, and you have to put that into a prenup – there’s probably a problem in the relationship before you’re even getting married.

The Fox News report can be found here.

The far funnier Onion report here.

Understanding Your Settlement Agreement

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, March 5, 2014.

You want to understand your property division, but it sounds like Shakespeare wrote it: “Witnesseth that whereas the aforementioned, hereinafter referred to as party of the second part, hereby stipulates betwixt . . .” How do you make sense of that?

You could ask your lawyer to explain what this legal mumbo jumbo means again, but you probably don’t want to add to your attorneys’ bill. On the other hand, you also don’t want to violate the agreement, and most importantly, you want this thing to work. What to do.

Below are a few tips to help you to understand your new marital settlement agreement:

– Calendar the exchange days and times into your iPhone as far out as possible.

– Calendar any “notify by” dates for vacations and special events.

– For the kids, draw a color-coded calendar of timesharing exchanges so they will know where they’ll be. It helps instill confidence.

– List on a piece of paper what needs to be divided and when.

– Notify your H.R. department about your divorce.

– Notify cable T.V., cellular telephone and other accounts managers to change accounts.

– Calendar when support payments are due.

– List the amount of child support and alimony to be paid.

– List your children’s extra-curricular expenses and uncovered expenses and remember what percentage each parent is responsible for.

Marital settlement agreements, even when written clearly, are legal contracts. They can be long and complex. Even lawyers have to continually educate themselves to stay on top of this ever changing area of law.

Once the agreement is signed, you should be finished, but not always. These tips should help, but if you find yourself back in court, you will at least have a handle on the agreement.

It is not uncommon for me to be brought into a case to review someone’s proposed marital settlement agreement before they sign it. So, if all else fails, call a lawyer for help.