Category: Agreements

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.

Prenuptial Agreements For Men and Women

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, December 31, 2013.

Prenuptial property division are important. They help keep your property yours. You get to make your own standards for alimony. And, divorce becomes a lot cheaper, simpler and faster to resolve. Interestingly, a recent study found that millionaire men mostly don’t require prenuptial agreements, but millionaire women mostly do want prenups.

As San Francisco Weekly reports, a study prepared by Millionairematch.com did a random sample of 524 millionaires in the San Francisco Bay Area where there’s plenty of “new money” to be found. Especially in Silicon Valley.

The survey results were surprising:

  • 82.6 % of millionaire men in Silicon Valley are most likely to seek out non-millionaire women.
  • Only 16.2 % of millionaire men in Silicon Valley insist on a prenuptial agreements.
  • Millionaire women, however, were quite the opposite
  • 86.7% of millionaire women preferred dating other millionaires.
  • 92.4% of millionaire women insist on prenups.

Apparently to marry a non-millionaire means to be charitable. The more popular responses from men polled had to do with dating “somebody who appreciates things” and not dating “bossy, middle-aged women who can take care of themselves.”

For women it’s a matter of “not carrying the whole financial burden,” according to a female member worth $100 million. (What financial burden is she referring to when one member of the couple is worth $100 million?) Must be tough when one decides love does cost a thing.

With many first marriages ending in divorce, and most second or third ones hitting the skids, a prenup is smart financial planning. A prenuptial agreement and the discussions that go with it can help ensure the financial well-being of the marriage.

The article can be read here.

Postnuptial Agreements: The Agreement for Couples Already Married

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Thursday, August 22, 2013.

What is a postnuptial property division, and why have one? Some people say “take money out of the equation, and a lot of marriages would not end in divorce.”

That’s why many people sign prenuptial agreements before they marry. Because money problems are at the root of a lot of divorces, more and more couples are signing postnuptial agreements.

Postnuptial agreements are similar to prenups, except they are for married couples. Postnups are prepared after the marriage, and state what your rights and obligations are if you divorce or die.

As USA Today reports, postnups are on the rise across the country:

Postnup agreements can cover everything from how to divide financial assets in divorce to limits on partners’ weight gain, just as prenups can.

And in a survey of divorce lawyers by the American Academy of Matrimonial Lawyers, 51% saw an increase in postnups.

Now that the Supreme Court has struck down the Defense of Marriage Act, or DOMA, experts say more postnups could be in the offing.

It’s not because newly married same-sex couples’ unions are likely to suddenly founder. On the contrary: They will need to re-allocate some of their property now that they can tie the knot.

“You can anticipate that couples are going to want to address property rights in a postnup for property that otherwise would have been deemed separate, because they acquired it before the marriage,” she said. “Many couples will want to give recognition to those assets and put them in the marital estate.”

After the Supreme Court’s DOMA decision, spouses who have the benefits may want to protect them, and couples who rushed to get married after the DOMA decision, and who did not want to delay their weddings by negotiating a prenup, are rushing to get postnups.

There are some good reasons for a postnup:

  • You ran out of time to hire an attorney to prepare a prenup;
  • You want to give your marriage a last-ditch effort by working out the financial problems;
  • Asset protection – when you receive a large gift or inheritance;
  • You have done something you feel guilty about, and want to make concessions to save your marriage;
  • You want a say in how to distribute your assets before you die;
  • You want to define both spouses’ obligations during the marriage – who pays for what, or do you file taxes jointly or separately?

In 2007, Florida adopted the Uniform Premarital Agreement Act to establish some uniformity in agreements and hopefully reduce litigation. Whatever your reason for a postnup, relationship planning can save you a lot of money down the road.

Stay or Move Out of Home During Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Friday, July 19, 2013.

Many clients going through divorce are unsure if they should stay in the marital home, or move out. Does staying help you? Does leaving mean that you are giving up your rights? Will it be harder to enter an agreement?

The marital home is many things. First, it’s a valuable asset, maybe your most valuable asset – assuming your house isn’t underwater. Second, the home is a place for you to live in . . . with your children if you have them. Third it is an important, and possibly big part, of the final settlement.

Marital Asset

The home remains a marital asset, which is subject to equitable distribution, regardless of who lives there during the divorce process. If a home is marital then both parties have equal rights to buy – out the other’s share. Both may also be on the hook for liabilities.

Children’s Issues

Until a parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life. Moving out can also create the appearance of a new ‘primary parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Settlement

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty, and may be less inclined to settle.

Also, the person leaving may still have to pay for the home’s expenses while also paying for a second place. It can be costly to maintain two households, and prohibitive expensive when you know that the process will take a long time.

If you are going to leave, you should consider the following before moving:

  • There should be some discussions about maintaining the home.
  • Decide who is paying for which expenses.
  • Inventory the personal property, things like artwork, LP records, clothes, tools, silverware etc.
  • Create boundaries for when the ‘out-spouse’ can use and enjoy the home after leaving it. Create a schedule everyone can agree to.

Top Reasons to Have a Prenuptial Agreement

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Monday, June 3, 2013.

Property division are important for couples planning to marry. Many people believe prenuptial agreements are only for the rich and famous. However, prenuptial agreements help all couples. Here are a few reasons why:

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. Inheritance funds get deposited into joint accounts, properties get transferred into joint names…and all for good reason. Unfortunately, tracing commingled property is expensive, and hard to prove. But, if you put it in writing at the beginning, you can avoid this task and save some money down the road.

You Can Change the Law. Right now in Florida, there has been an ongoing debate about alimony. When you go to court, a judge has to follow state law regarding alimony. However, 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.

Avoid Expensive Divorces. Let’s face it, divorce can be expensive, and the cases don’t end quickly. A prenuptial agreement can simplify things by resolving issues ahead of time, way before the divorce is even filed. Once you have entered an agreement spelling out what happens in the event of a divorce, the case becomes a lot more cheaper, simpler and faster to resolve.

Protects Your Children’s Inheritance. Prenuptial agreements protect property from falling into the hands of the new spouse, often seen by children from earlier marriages as a “gold digger.” An agreement helps assure your children that any inheritance is protected, and they don’t need to resent the new spouse.

It is important to be aware of all of the consequences of marriage, and do what planning you can to avoid complications and costs in advance

Florida Alimony Change : The Midnight Battle

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sfsaOn behalf of Ronald H. Kauffman, P.A. posted in Alimony on Thursday, May 2, 2013.

Believe it or not, the law does not change at a fast pace. With that in mind, Florida’s attempt at alimony changes is like watching a NASCAR race!

Last month, the Florida Senate passed bill 718 making major changes to Florida’s alimony law (like prohibiting permanent alimony) and timesharing law (creating a policy that equal timesharing is in the best interest of the child).

A few weeks later, the Florida House adopted the Senate’s bill, by an overwhelming vote.

As the Miami Herald reports, late last night, Governor Scott vetoed Senate bill 718 to everyone’s shock. His veto came only 4 hours before the midnight deadline, after which the bill would have automatically become law.

The HUGE constitutional problems with the bill was that bill applied retroactively (people could rely on the new law to overturn court orders and settlement agreements entered years ago.)

What’s the Constitution’s problem with retroactivity? There are two big problems actually:

1. The legislature can’t make laws impairing existing contracts. Since the alimony bill would overturn agreements entered years ago, the bill is probably unconstitutional.

2. Our constitution separates the three branches of government, and prohibits one branch from exercising the powers of another branch. The alimony bill effectively allows the legislative branch to un-do court orders entered by the judicial branch.

The Governor wrote the Senate President a letter late last night outlining his reasons:

The retroactive adjustment of alimony could result in unfair, unanticipated results. Current Florida law already provides for the adjustment of alimony under the proper circumstances. The law also ensures that spouses who have sacrificed their careers to raise a family do not suffer financial catastrophe upon divorce and that the lower-earning spouse and stay-at-home parent will not be financially punished.

The Legislature now has the opportunity to override the Governor’s veto by a two-thirds vote in each house, or take out the offensive retroactive language and try again.

This is almost as much drama as Vikings. Stay tuned!

Enforcing Religious Marriage Contracts: How to Get a Get

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, March 27, 2013.

Divorce can be tricky when the divorcing couple is religious. Religious issues have arisen for clients of all faiths. This is especially true during religious holidays like Passover/Easter, and usually deal with decisions over holiday timesharing and religious upbringing.

However, different religions can have unique issues. For instance, Muslim clients sometimes have had disputes over the interpretation and enforcement of Mahr agreements – a religious prenuptial agreement.

For Jewish clients, a frequent problem is the “chained wife” or agunah. In Judaism, for a divorce to be effective, Jewish law requires that a man grant his wife a get. An agunah, or chained wife, is legally divorced in Florida, but the ex-husband refuses to sign a get.

There has historically been an imbalance of power, giving men the upper hand when religious couples negotiate child custody, division of assets and other issues. In some cases, wives and their families have paid hundreds of thousands of dollars for their husband to grant them a get.

Recently, a Connecticut trial court affirmed the constitutionality of the Modern Orthodox prenuptial agreement created by Beth Din of America aimed at protecting chained wives.

The Jewish Daily Forward reports that Rachel Light, a former wife, entered into a prenuptial agreement which had a ‘damages for delay’ clause requiring the husband to pay roughly $100 per day for every day he refused to sign a get. Ms. Light may possibly claim damages of more tha $100,000 from her ex-husband because he refused to sign a get.

Susan Aranoff, director of the advocacy group Agunah International, called the decision a ‘breakthrough for women,’ saying, “The unanswered question with regard to the prenup was always will it be enforceable in court. Now that is has been enforced husbands know there is a cost for withholding a get.”

Last July Rachel sued arguing that while she and Eben had separated years earlier, Eben refused to grant her a get. Rachel asked the court to enforce the provision in the prenup in which Eben agreed to pay $100, plus adjusted inflation, for every day he refused to grant the get. Eben argued that the prenup was a religious matter, and as such, it was unconstitutional for a secular court to enforce the document.

In his opinion, the judge found that enforcing the prenup was no different from enforcing a secular contract. He cited several cases, including Odatalla v. Odatalla, where a New Jersey court enforced an Islamic mahr agreement, and Avitzur v. Avitzur, which ruled that it was constitutional for a secular court to enforce a ketubah, or Jewish marriage contract.

How To Void a Prenuptial Agreement

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, March 13, 2013.

Having a prenuptial agreement shoved under your nose days before your wedding can be frightening. It also can raise issues many people don’t want to face: things like finances and the possibility of divorce.

Because of Florida’s policy of enforcing agreements, prenups can be difficult to void – but not impossible.

In Long Island, Elizabeth Petrakis felt forced by her future Husband to sign her prenup 4 days before her 1998 wedding to millionaire Peter Petrakis.

According to Elizabeth, her future Husband promised to rip up their agreement once they had children. But after having twin sons and a daughter, the prenup stayed intact.

A trial court in New York voided the prenup on the grounds of “fraud in the inducement” and recently an appellate court approved of that ruling – recognizing that the Husband misled the Wife in the contract, and finding his “credibility to be suspect.” As her attorney said:

“You can enter into prenups, but you shouldn’t when you’re marginalizing your spouse or being too greedy.” “The argument was helped by inequality of the prenuptial agreement.”

Another attorney further explained the court’s decision:

“Many couples discuss the terms of their prenups and say they will do or say things in the future that are not memorialized in writing,” she said. “However, this fraudulent inducement to buy a house put the marital home in joint name and make other financial incentives after the parties wed appeared to sway the appellate panel who agreed to set aside the prenuptial agreement based on fraud.”

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.