Tag: avoiding agreements

When a Prenuptial Agreement Fails

Posted by Ron Kauffman on

If marriage is a business relationship, a prenuptial agreement is like the incorporation documents. But what happens if during your marriage you find out the prenuptial agreement you paid for fails? For one woman, the results of a prenup fail could mean the loss of her entire inheritance.

Prenup Fails

Protecting Your Assets

After you and your spouse get married, ‘what’s theirs is yours, and what’s yours is now theirs.’ Unless you get a prenup. A prenuptial agreement is a written document between prospective spouses thinking about marriage. A prenup becomes effective upon marriage.

What can you put in a prenup? There are few limitations, but you can agree on your rights to any property either you or your spouse have or will have, who can manage and control the property, and what happens to property in the event of death or divorce. You can also agree to alimony, or to waive alimony,  and many other issues that do not violate some public policy or criminal law.

There are two things she advises before getting married: (1) buy separate comforters for your bed, and (2) get a prenuptial agreement that fully protects you – even if you don’t think your assets are worth much. Without a prenup, you might learn you’re not be protected the hard way.

In the article, the reporter got married right out of graduate school and had no job. Her assets consisted of a used car, a cat, and an inheritance she kept in a trust fund. Her future husband had no assets, but was planning to go to dental school which had a hefty price tag. The Wife’s prenup ensured that her trust fund could not be used to pay for his graduate school tuition.

Notwithstanding her prenup though, during the marriage, the wife used her trust fund monies on their living expenses. Then she decided to ignore the prenup entirely. She used all of her premarital inheritance as a down payment on a marital home. Then she titled the house in both names. Then she also agreed her husband’s salary would pay the mortgage and most other bills related to “their” home.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for the rich and famous. Anyone who brings assets, or a large inheritance, into their marriage can benefit from a prenuptial agreement.

Prenups are important to have in place before a married couple starts investing in businesses, properties, and other investments.

But there can be ‘prenup fails’ too. In addition to being completely ignored, prenups can also be challenged in court. Florida has both case law and a statute to help lawyers, judges, and the parties determine if a prenuptial agreement is enforceable. For example, Florida adopted the Uniform Premarital Agreement Act.

The UPAA is a statute that requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Couples wanting to sign a prenup can enter into an agreement with respect to their rights and obligations in any of their property. Whenever and wherever property was acquired or where it is located; couples can control their right to buy, sell, use, transfer, or otherwise manage and control their property if they separate, divorce, or die.

When ruling on the validity of a prenup, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure. While prenuptial agreements may be challenged in court, we will have to wait and see if the court will invalidate Costner’s prenuptial agreement.

A Messed-up Prenup?

After seven years, the husband informed his wife that he wanted a divorce. He also wanted to sell their jointly owned house and split the profits equally. Without a house though, the wife couldn’t qualify for a mortgage on a new home, and all of her premarital inheritance money was now tied up in a marital home she had to split with her soon to be ex.

When the wife contacted her lawyer to enforce her prenuptial agreement, and get back the deposit she alone paid for in their joint home, she learned the hard way her prenup would not help her. Why? Because she’d spent her inheritance on a marital home titled in both of their names. Her prenup only protected her trust fund money from being spent on paying off her husband’s student loans.

The couple came to an agreement, which was fleshed out over the next few weeks by their lawyers. They sold the house, and the wife got enough money from the sale of her marital home to pay for rent – with the help of alimony.

She was officially divorced by the end of the year, but she found out the hard way her prenup failed to protect her because she ignored it. The wife could have protected her inheritance in several ways: not putting the home in joint names, or amending her prenuptial agreement to decide how her down payment would be treated in a divorce.

Instead, she learned a few lessons. Her advice now is: “Get a prenup.”

The Business Insider article is here.

Marital Settlement Agreements and Vital Organs

Posted by Ron Kauffman on

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

Marital Settlement Agreement Kidney

Eilat of Love

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

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

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

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

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

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

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

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

Florida Marital Settlement Agreement

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

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

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

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

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

New Heights

According to Adel, there was no hesitation:

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

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

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

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

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

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

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

The Ynet article is here.

Enforceability of Islamic Prenuptial Agreement

Posted by Ron Kauffman on

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

Texas Islamic Agreement

‘All My Exes Live In Texas’

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

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

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

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

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

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

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

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

The Wife sought review in the Supreme Court of Texas.

Florida and Islamic Prenuptial Agreements

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

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

But just having a prenup is not enough. Prenups are frequently challenged in court. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

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

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

‘Deep in the Heart of Texas’

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

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

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

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

The Texas Supreme Court opinion is here.

Prenups for Millennials

Posted by Ron Kauffman on

Millennials are often known to buck convention, and that may be true with prenups. While prenups have been most common among celebrities, the rich, and couples entering second and third marriages, more young people are requesting them.

Millennial Prenups

Closing Time

The term Millennials generally refers to the generation of people born between the early 1980s and 1990s, and as the Wall Street Journal reports, younger adults of all income levels are drafting prenups.

Millennials are not only trying to protect assets accumulated before and during marriage but to address societal realities that weren’t necessarily present or common years ago, such as a desire to keep finances separate, student debt, social-media use, embryo ownership and even pet care.

Experts point to the fact that many millennials are children of divorced parents and have had an intimate look at what can happen financially when a marriage dissolves. At the same time, the stigma or taboo that used to be associated with discussing money before marriage is slowly disappearing.

Some millennial couples who want to maintain a clear separation of their finances during marriage are using prenups as a workaround for state laws that would otherwise treat certain assets as marital property.

This mind-set change is even true for clients who don’t have significant assets to protect going into the marriage, lawyers say. Some millennials want to keep their finances—current and future—separate and businesslike, which would allow them to leave a marriage, if necessary, without many strings attached.

Florida Prenups

I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just exploring the strange new world of marriage. A prenuptial agreement (or “prenup” for short) is a contract between people intending to marry. A prenup determines spousal rights when the marriage ends by death or divorce.

If you divorce without a prenup, your property rights are determined under state law, and a spouse may have a claim to alimony while the suit for divorce is pending and after entry of a judgment.

That’s where prenups come in. Prospective spouses may limit or expand state laws by an agreement. Prenups are also used to protect the interests of children from a prior marriage, and to avoid a contested divorce.

All the Small Things

As the Wall Street Journal article further explains, for young couples who haven’t been married before and don’t have children, prenups need to anticipate all sorts of questions related to potential alimony payments, such as: Will one of you stay home with children or do you both plan to continue working? What might each of your potential incomes be? Will you need job training?

Many younger professionals might think to waive alimony completely, especially if they both have their own careers and lead separate financial lives. However, if there is a chance that one spouse could be out of the workforce for a considerable time, beyond a standard maternity or paternity leave, to raise children, it could impact future employability and earning capacity.

Many millennials are also going into a marriage with significant student and credit-card debt, which also is a change from the past. A recent Fidelity Investments report, for example, found that millennials in 2020 had an average loan balance of $52,000.

As a result, handling debt issues are making their way into prenuptial agreements. One couple, where a wife-to-be had $75,000 in student-loan and credit-card debt, the couple added a provision to their prenup that said any marital assets used to pay off her debt had to be reimbursed in the event of the divorce.

Another couple used a prenup to address how any future student debt taken on during the marriage would be handled. They agreed that this type of debt would be considered the borrowing party’s personal debt, not a marital debt.

As more couples decide to delay having children until later in life, more prenuptial agreements are including directions for dealing with genetic material in the event of divorce. In a prenuptial agreement, a couple can agree that in the event of a divorce, their embryos would be donated to stem-cell research through a local stem-cell bank. Neither party could use the embryos without the consent of the other party.

Pet provisions also are becoming more commonplace in today’s prenups by people who view their pets as their de facto families. A prenup can be crafted with a visitation schedule, a plan to split vet bills and pet insurance costs and address what would happen if one of the partners moved far away from the other.

Some millennials want to address social media in prenups to ensure that one spouse can’t write nasty things about the other in the event they break up. However, it is easy to run into First Amendment issues.

The Wall Street Journal article is here.

 

Israeli Prenuptial Agreements are Kosher

Posted by Ron Kauffman on

Whether Israeli prenuptial agreements are kosher is a big question in the holy land as Israel’s version of Real Housewives, Nicol Raidman, has filed for divorce from her former oligarch and billionaire industrialist husband Michael Cherney.

Israeli Prenuptial Agreement

Land of Milk and Honey

Nicol Raidman is a businesswoman, socialite and former reality TV celebrity in Israel, who recently announced she is divorcing her billionaire husband in what is shaping up to be the most expensive divorce lawsuit in Israeli history, Channel 12 news reported Monday.

After 11 years of marriage, Raidman and industrialist Michael Cherney are dissolving their union. But Raidman is alleging that Cherney has failed to honor his prenup with her, which promised her $25 million (NIS 86 million) in any settlement.

She is now planning to take Cherney to court and demanding hundreds of millions of shekels under their prenuptial agreement.

Prenuptial agreements are generally enforceable in Israel, if authorized before a notary, a marriage registrar, or by the family court or the religious court. In fact, former Justice Minister, Ayelet Shaked, called on couples getting married to sign prenuptial agreements to ensure that husbands will not withhold a get, or Jewish writ of divorce, from their wives.

In Israel, where all divorces are subject to religious law, the norm has left thousands of women in legal limbo due to husbands who refuse to grant divorces. The phenomenon has received a lot of attention in recent years as rabbis try to battle husbands who are “get-refusers.”

Some Jewish groups mandate its members require couples to sign a prenuptial agreement to avoid such scenarios. The agreement, commonly referred to as a “halachic prenup,” generally penalizes the husband financially for refusing to give the get.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for celebrity sports figures, and they are about much more than just resolving uncertainty in a marriage.

Any couple who brings any personal or business assets to the union can benefit from one. They are also important to have in place before a couple starts investing in businesses, properties and other investments. But prenups are frequently challenged in court.

Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

For example, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Real Housewives of the Holy Land

Cherney’s lawyer told the network that any and all claims would be made to the court rather than the media. Raidman is known to be a close friend of Prime Minister Benjamin Netanyahu’s wife Sara.

In 2011-2013 Raidman took part in the Channel 10 reality television show “Me’usharot” based on the US show “The Real Housewives.” She has launched her own luxury clothing and perfume brands.

Cherney, an oligarch who made his fortune in the former Soviet Union, is a close confidant of Yisrael Beyteinu party leader Avigdor Liberman. The couple have two children.

The Times of Israel article is here.

 

Prenuptial Agreements Take Center Field

Posted by Ron Kauffman on

Prenuptial agreements take center field, former Cardinal center fielder, Jim Edmonds, is finding out. That’s because his estranged wife, Meghan King, is trying to strike out their prenuptial agreement after the divorce was filed. Can prenuptial agreements be challenged?

Prenuptial Agreement Center Field

Play Ball!

Baseball is back in the news this summer, and retired slugger Jim Edmonds, is not having a great season. The four-time All-Star, who played 17 seasons most of which with the St. Louis Cardinals and California/Anaheim Angels, was hospitalized for pneumonia earlier in the year, and now admits he tested positive for the coronavirus.

But striking out a prenuptial agreement is the play of the day. Prenuptial agreements set out what property stays yours, what property does not, and ensure that your assets stay in your family line for the benefit of your children from another relationship and other reasons. Prenups can even be used to limit your exposure to paying alimony.

But can Meghan get out of her prenuptial agreement? Jimmy Baseball’s divorce is at a standstill until a judge decides if his prenuptial agreement is valid.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for celebrity sports figures, and they are about much more than just resolving uncertainty in a marriage.

Any couple who brings any personal or business assets to the union can benefit from one. They are also important to have in place before a couple starts investing in businesses, properties and other investments. But prenups are frequently challenged in court.

Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

For example, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Batter Up!

According to reports, Meghan herself has publicly explained the agreement was done at her urging because she didn’t want Jim’s family to think she was trying to take his money.

The mom-of-three openly discussed the matter throughout her time starring on the Bravo reality TV series and explained why she was so adamant about moving forward with a prenup.

“Way before we ever got engaged, I suggested him getting a prenup to protect his feelings about our marriage, about where my heart is coming from. And honestly, a big part of the reason, totally aside from the whole marriage thing, why I wanted it is to protect the children because I never wanted the children’s mothers or the children to think that me as their step mom or as this new person in their life was going to take things from them.

Jim, 49, has four kids of his own from previous relationships. He and Meghan welcomed three kids, daughter Aspen and twin boys Hart and Hayes, during their marriage. They split custody 50-50.

Additionally, reports say Jim is paying Meghan “more than three times” the amount of child support that’s been suggested by the court and continues to foot the bill for many of her living expenses. He is letting her live in one of his homes in St. Louis and is paying the mortgage and all the bills for that house. He gives her money for her full-time nanny and housekeeper.

He pays for practically every single expense related to the children. And, if that wasn’t enough, he pays half the rent on her Los Angeles beach house. Jim has been beyond generous to Meghan and provides full financial support for his children,” the rep asserts.

Meghan has told E! News:

“I’m looking forward to putting this behind me amicably and I don’t wish to discuss the private details of my divorce at this time.”

In an Instagram comment shared by Meghan and captured by tabloids last month, she shot down one follower’s claim that she’s received “serious child support” from her estranged husband.

“Girl I have a career thank you very much!” she wrote back. “That child support is not buying me gold and baubles. It barely pays for groceries for my tribe!”

The E!-online article is here.

 

Heartbreak Postnuptial Agreement

Posted by Ron Kauffman on

Lisa Marie Presley, daughter of rock legend Elvis Presley, is as happy as a ‘hound dog’. A judge in her divorce from Michael Lockwood recently ruled that her postnuptial agreement waiving alimony is valid.

postnuptial agreement

Are You Lonesome Tonight?

Although she is single, the daughter of music legend Elvis Presley is not without her riches. The family court ruling means she won’t have to pay her estranged husband spousal support, according to court papers obtained by TheWrap.

In an order handed down Aug. 17, a judge found that a 2007 post-nuptial agreement signed by Presley and Lockwood in which they waived spousal support in the event of a split, is valid.

The Wonder of Postnuptial Agreements

I’ve written about various marital agreements before. Postnups are written agreements signed after a couple gets married, or have entered a civil union, to settle the couple’s affairs and assets in the event of a separation or divorce.

Postnuptial agreements are enforceable in divorce cases. But, there are two separate grounds by which either spouse may challenge such an agreement and have it vacated or even modified.

First, a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

The second ground to vacate a settlement agreement contains multiple elements. Initially, the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties.

To establish that an agreement is unreasonable, the challenging spouse must present evidence of the parties’ relative situations, including their respective ages, health, education, and financial status.

With this basic information, a family court judge may determine that the agreement, on its face, does not adequately provide for the challenging spouse and, consequently, is unreasonable.

In making this determination, the trial judge has to find that the agreement is “disproportionate to the means” of the defending spouse. This usually requires some evidence to establish a defending spouse’s financial means. Additional evidence may also be necessary.

Keep in mind that this standard for avoiding or modifying the agreement happens when a couple is not in the midst of litigation against each other. This does not govern marital settlement agreements entered into during the course of divorce litigation.

Return to Sender

According to the papers, the agreement was arrived at the year after Presley and Lockwood married, and before the couple’s twins were born.

The order purportedly said that the post-nuptial agreement stated that:

“in the event of a judgment of nullity, legal separation or dissolution of marriage, neither party shall be obligated to pay spousal support to the other.”

The court added that Lockwood didn’t read this because it didn’t interest him, but he signed documents containing that language, twice, initialing every page on the July 2007 copy, and his attorney “signed the November 2007 version.”

Viva las agreements. The Wrap article is here.

 

World Emoji Day ????

Posted by Ron Kauffman on

Incredibly, I overlooked World Emoji Day. Although late, in honor of yesterday’s World Emoji Day, it’s worth pointing out that my new article on emojis and legal ambiguity in agreements, which was recently published in the Florida Bar Family Law Section Commentator, will make anyone ????.

Ambiguous Divorce Agreements

Emojis

I’ve written about emojis before. Originating in Japan in 1998, emojis are small digital images used to express an idea or an emotion in electronic communications.

Today, roughly 70 percent of the public uses some type of social media.  Social media has changed many of the ways in which we communicate. For one thing, social media has increased our use of emojis.

One report found more than 92 percent of people use emojis on social media. Emojis have spread to the business world, where nearly half of workers add emojis to professional communications, and companies use them to increase sales and brand awareness.

Emojis in Court ????‍⚖️

Emojis are increasingly turning up in court, especially in agreements, and ignoring them would be like calling a witness to the stand and ignoring their facial expressions.

Emojis fail the ‘duck test’: if it looks like a duck, and quacks like a duck, then it is probably a duck. That’s because emoji meanings can be so puzzling, a “duck” emoji, may mean anything but a duck.

For example, a U.S. federal court recently held that a “Smiley” emoticon =) converted an email into a joke, the email meant the opposite of what it said, and a criminal defendant’s lawyer did not violate the Sixth Amendment by sending the prosecutor an email joking: “stipulate that my client is guilty. :)”

An Israeli court awarded damages based on emojis after a prospective tenant sent a landlord a text about a lease agreement saying: “Good morning ???? we want the house???????? ????‍ ✌ ☄ ???? ???? just need to go over the details. . .” The landlord removed his ad, then the tenant disappeared. The court awarded the landlord 8,000 shekels.

Ambiguity: What does ???? Mean?

There are unique issues with emojis, rendering them hard to interpret. For one thing, there’s no definitive source as to what emojis mean.

That unknown can make agreements in an email, a text or an actual marital contract, ambiguous. Marital agreements are interpreted like any other contract. Basic interpretation begins with the plain language of the contract, because the contract language is the best evidence of intent.

Courts are not supposed to rewrite terms of an agreement if they are clear and unambiguous. Anyone seeking to show a court any evidence outside a fully integrated contract, must first establish that a contract is ambiguous.

A contract is ambiguous when its language is reasonably susceptible to more than one interpretation. That’s where emojis come in, they can be very ambiguous. Emojis are also small, making them hard to read. Interpreting an emoji can depend on what kind of device they appear in. For example, a 24-inch computer monitor displays thing differently than a 4-inch phone screen.

Emojis don’t always mean the same thing universally, so there can be many different meanings depending on which country you are in. For example:

????

The “Folded Hands” emoji symbolize “please” and “thank you” in Asia. However, in the U.S. it means: “I’m praying,” and frequently, “high-five”!

????

The “Pile of Poo” emoji is a pun on the Japanese word for excrement (unko), which starts with the same “oon” sound as the word for “luck” and is complimentary in Japan. But, in the U.S. the emoji is used to express contempt. Strangely, Canadians use the emoji the most.

Information on World Emoji Day is available here.

 

New Article: Ambiguous Divorce Agreements

Posted by Ron Kauffman on

Seeing more emojis? Are you confused about their meaning? For some light reading this Memorial Day weekend, my new article dealing with legal ambiguity in divorce agreements, “If it looks like a duck: Emojis, Emoticons and Ambiguity,” in the Spring 2018 Florida Bar Commentator, is now available in print and to download. Here is the abstract:

What are Emojis?

Originating in Japan in 1998, emojis are small digital images used to express an idea or an emotion in electronic communications. The term emoji is Japanese for “picture character.” Picture (pronounced “eh”), and character (pronounced moh-jee).

Today, roughly 70 percent of the public uses some type of social media. Social media has changed many of the ways in which we communicate. For one thing, social media has increased our use of emojis.

One report found that more than 92 percent of people use emojis on social media.

Emojis have spread to the business world, where nearly half of workers add emojis to professional communications, and companies use them to increase sales and brand awareness. You can order your next Domino’s with the “Slice of Pizza” emoji.

Emojis have also spread to family law courts, as parents are frequently using texts, emails and social media in order to communicate their agreements and understandings about their kids.

Ambiguous Divorce Agreements

There are unique issues with emojis, rendering them hard to interpret. This is a subject I have written about frequently. For one thing, there’s no definitive source as to what emojis mean.

That unknown can make agreements between parents about custody, visitation, temporary support in emails, texts or on social media, ambiguous. Divorce agreements are interpreted like any other contract.

Basic interpretation begins with the plain language of the contract, because the contract language is the best evidence of intent.

Courts are not supposed to rewrite terms if they are clear and unambiguous. Anyone seeking to show a court any evidence outside a fully integrated contract, must first establish that a contract is ambiguous.

Emojis and Legal Ambiguity

A contract is ambiguous when its language is reasonably susceptible to more than one interpretation. That’s where emojis come in, they can be very ambiguous. But why?

Emojis are also small, making them hard to read. Interpreting an emoji can depend on what kind of device they appear in. For example, a 24-inch computer monitor displays thing differently than a 4-inch phone screen.

Emojis don’t always mean the same thing universally, so there can be many different meanings depending on which country you are in. For example:

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The “Folded Hands” emoji symbolize “please” and “thank you” in Asia. However, in the U.S. it means: “I’m praying,” and frequently, “high-five”!

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The “Pile of Poo” emoji is a pun on the Japanese word for excrement (unko), which starts with the same “oon” sound as the word for “luck” and is complimentary in Japan. But, in the U.S. the emoji is used to express contempt. Strangely, Canadians use the emoji the most.

You can’t understand an emoji’s meaning just by looking at one. People use emojis in ways that have nothing to do with the physical objects they represent, or even what typographers intended.

There are regional, cultural and slang meanings to consider too. After all, emojis’ inherent ambiguity is one reason why they’re increasingly becoming evidence in court.

The Spring 2018 Family Law Commentator is available here.

 

Challenging Divorce Agreements

Posted by Ron Kauffman on

A recent case in Florida shows that if your prenuptial agreement, divorce agreement, or mediated marital settlement agreement is poorly written, and the terms are ambiguous, you could be back in court fighting over it – as one South Florida couple found.

Prenuptial Agreement Miami

Clear as Mud

After a hearing, a family trial court judge found that a divorce agreement was “clear and unambiguous” and entered a final judgment. On appeal, the appellate court found the same contract to be ambiguous and reversed and remanded to hold more evidentiary hearings.

The confusion? The parties’ mediated settlement agreement required dividing the Former Husband’s pension, which provided:

The wife is entitled to 50% of the marital portion of this plan through the entry of a Qualified Domestic Relations Order. The marital portion is defined as the amount from the date of the marriage through the date of the filing of the Petition for Dissolution of Marriage.

The wife contended that the entire pension is marital because the enhancement was purchased with marital funds; the former husband argued that the purpose of the Agreement provision was to divide the pension 50/50, except for the enhancement portion.

Legal Ambiguity

I recently wrote an article in the Florida Bar Commentator about legal ambiguity and emojis. Divorce contracts are construed in accordance with its terms, so that where the terms are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document.

When a term is ambiguous or unclear, the trial court may consider extrinsic evidence as well as the parties’ interpretation of the contract to explain or clarify the language.

Ultimately, the appellate court considers whether the contractual provision was actually ambiguous; if not, ‘the language itself is the best evidence of the parties’ intent, and its plain meaning controls.

Determining if a contract is ambiguous may require the court to consider reading the entire agreement to clarify what the parties meant by including the provision.

A provision is ambiguous if it is fairly susceptible to different constructions.

Emojis and Ambiguity

Originating in Japan in 1998, emojis are small digital images used to express an idea or an emotion in electronic communications. Emojis are increasingly becoming evidence in family court, because they create ambiguity in agreements.

Emojis are also small, making them hard to read. Interpreting an emoji can depend on what kind of device they appear in. For example, a 24-inch computer monitor displays thing differently than a 4-inch phone screen.

Emojis don’t always mean the same thing universally, so there can be many different meanings depending on which country you are in. As a result, state and federal courts around the country are increasingly having to interpret emoji meanings.

Back to the Pension

The retirement provision was found to be ambiguous because it was fairly susceptible to different constructions. If the parties intended to split the pension equally, they could easily have said that the pension would be divided 50/50.

Yet, the Agreement refers to the “marital portion” of the FRS plan, a wording that suggested that the parties contemplated that some portion of the plan was non-marital.

The court found that a possible reading of the provision is that the marital portion of the plan is only that portion attributable to the former husband’s time of service with BSO.

Because of the ambiguity, the appellate court remanded the case back to the trial court to hold more hearings.

The appellate case is here.