Tag: marital agreements

Family Law Mediation During the Coronavirus

With most of the country in quarantine, many people are discovering that family law courts are open, but mostly for zoom hearings. Now, family law mediation has gone virtual too. Mediations join such other legal proceedings as depositions, motions, hearings, arbitrations as part of the zoom world.

meeting

Mediation During the Quarantine

Mediation is generally a requirement in divorce and family law cases if you want to ever proceed forward with trial. It is customary for parties, their lawyers and experts to meet in-person at the mediator’s office, or one of the law firms involved.

Meeting together is an advantage in that it gets parties and their counsel together with one objective in mind — settle the case. There is an unspoken “dance” that occurs in that parties engage in substantive discussions for a period of time.

Many times, a mediation does not settle until after dinner is ordered. When the mediator is in the other room spending time with one side, the other side is left to talk about the case (or often whatever else is on their minds). There is a lot of downtime.

With social distancing amid the coronavirus, family law cases and divorces have to do their mediations virtually. They have become successful, and perhaps it will have some lasting impacts afterwards.

Florida Family Law Mediations

I’ve written about mediation before. Under Florida law, the parties to a divorce and most other family law cases must attempt to resolve their difference through mediation before their case can proceed to trial. In many cases, mediation can be used earlier in the process to resolve all outstanding disputes before either party has filed for divorce.

In divorce mediation, the parties and their attorneys meet with a neutral mediator – sometimes together, sometimes separately – to try to negotiate a settlement agreement.

Ideally, both the mediator and the attorneys should have enough experience to anticipate what will happen if the case goes to trial. Drawing on that experience, they can help the parties negotiate an agreement without any need to have a judge decide the issues for them.

At mediation, you will discuss issues that are highly personal and emotional, in a confidential setting. Accordingly, there are many factors to think about when choosing the right family mediator.

Tips for A Virtual Mediation

Before starting the mediation is the best opportunity to perform a test run of the zoom app, webex, gotomeeting, google meet, or other apps you have, to test for connectivity issues for your virtual mediation. The mediator should identify the protocol and policies regarding virtual mediation.

Given the complexities of family law cases, it is common to have separate confidential caucus meetings between the mediator and the parties. In some cases, we have meetings with the mediator and the two lawyers and experts in advance of the mediation.

One of the good things about virtual mediations is the lack of having to travel to mediation, park your car, and find restaurants. Because of that, there can be a substantial cost savings associated with virtual mediations.

It is easy to present exhibits and documents in a mediation on zoom. Each attendee has the ability to share their screen to show documents and walk through any presentation.

Usually, the mediator puts each party into a virtual break-out room where the parties wait for the mediator to come to them to talk about their case. There is usually a lot of downtime for the other side at that point.

If you settle your case, the mediator will want everyone to sign an agreement or some type of term sheet of the conditions of settlement. In very complex cases, the mediator may have asked your counsel to make drafts.

How do you sign electronically? In virtual mediations, electronic signatures may be applied to the document through docusign, adobe e-sign or a similar product.

Despite the coronavirus, courts and law offices are open virtually, and cases are being settled at mediation every day.

The National Law Review article is here.

 

Prenups Can Speed A Divorce

Exhibiting “warp speed”, actor William Shatner’s divorce from his fourth wife, Elizabeth Martin, has been finalized. The “Star Trek” actor filed for divorce last month, and apparently finalized it a month later. His prenuptial agreement likely helped speed his divorce to an early settlement.

Prenups Speed Divorce

Warp Speed

According to many reports, Shatner’s net worth is over $100 Million dollars from over two decades in acting. Distributing the actor’s fortune could have been a tremendous source of litigaton had there not been a prenuptial agreement.

However, court documents show the former couple had a prenuptial agreement in place, which allows the 88-year-old to keep his “Star Trek” royalties, the news outlet said. The actor was married to Martin for 18 years.

When reached by Fox News last month, Martin shared her brother had died around the time Shatner filed for the divorce and that she was with her family “during this time of grief.” “Respect distance from divorce topic while we grieve my brother respectfully,” she added. Representatives for Shatner did not immediately respond to Fox News’ request for comment.

Florida Prenuptial Agreements

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. This can be especially important for those who boldly go into fourth marriages.

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. Many couples divorcing would prefer not to to explore the strange new worlds of family court.

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.

As shown in Shatner’s case, prenups can also be the fastest way to resolve a future divorce . . . if they’re done right.

There are a galaxy of problems with prenuptial agreements too. If a prenuptial agreement includes any provisions that violate the law or public policy, it may automatically be deemed invalid.

Additionally, a prenuptial agreement cannot waive child support, and can’t set an amount for child support. Courts have plenary power over support issues, so child support amounts are determined by courts based on our child support guidelines.

Also, a premarital agreement may not be enforceable in a family court case, for instance, if it was not signed voluntarily; or if it was the product of fraud, duress, coercion, or overreaching.

Flying Through the Divorce Nebula

In the Shatner divorce, he listed the couple’s separation date as February 1, 2019. He was previously married to Nerine Kidd, Marcy Lafferty and Gloria Rand. He shares two daughters, Lisabeth Shatner, 58, and Leslie Carol, 61, with Rand.

The actor shot to fame in the 1960s for his role as Captain James T. Kirk in the original series run of “Star Trek” and went on to have a lucrative film and TV career afterwards.

Shatner’s third marriage, to Kidd, ended in tragedy in 1999 when she died of accidental drowning in their swimming pool. Although the actor had filed for divorce after two years of marriage shortly before the incident, he explained in his 2018 book “Live Long and…What I Learned Along the Way” that he was nonetheless grief-stricken by the loss.

The Rise of Starfleet

Last week, President Trump unveiled the new logo for the United States Space Force, America’s newest branch of the military. Many are saying the logo looks suspiciously like the logo for the fictional Starfleet Command in the Star Trek entertainment universe.

Fellow Star Trek actor, George Takei, who played the character “Sulu” on the original series with Shatner, mocked the new logo for Space Force. After it was unveiled, Takei quickly tweeted:

‘Ahem. We are expecting some royalties from this..’

In his Washington Post opinion piece, Takei drew parallels between the Trump administration and a Star Trek episode called ‘Mirror, Mirror,’ where the USS Enterprise bridge crew find themselves in a parallel universe where ‘cruelty’ has replaced ‘diplomacy.’

The Fox News article is here.

 

Speaking at Marital & Family Law Review Course

Honored to be asked to speak to over 1800 divorce lawyers, judges, hearing officers and other professionals at the prestigious Marital & Family Law Review Course in Orlando from January 31st to February 1st. I will be discussing modifications of parenting plans, settlement agreements, alimony and support. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

Cert Review Speech

Modifications

Life happens. When it does, we often have to make changes to our parenting plans, agreements, the alimony we pay or receive, and the amount of support being paid. What do you need to modify any aspect of your divorce agreement or order?

In Florida, a substantial change is what must be proven in court when a parent wishes to modify a previous court order or divorce or separation agreement. It may be the person who must pay alimony or support and recently retired, lost their job, or received a significant pay cut.

A change may come from a whose job now allows them to spend more time at home and would like to spend that extra time with their children. Whenever there has been a substantial change in your circumstances you may be able to ask for a modification of your court order or agreement

Certification Review Course

It is a privilege to be invited to speak again at the annual Marital and Family Law Certification Review course again.

The annual seminar is the largest, and most prestigious advanced family law course in the state. Last year’s audience included over 1,800 attorneys and judges from around the state.

The review course is co-presented by the Family Law Section of The Florida Bar, and the American Academy of Matrimonial Lawyers.

Registration information is available here.

Prenups and Threats to Call Off the Wedding

With the wedding season upon us, people are increasingly demanding prenuptial agreements. But many are also asking what is required to get out of the prenup they just signed. For instance, how valid would a Venezuelan prenup be if there were threats to call off the wedding unless it was signed? A Florida court just answered that question.

Prenup Threats

Venezuelan Prenups

In the recent case, the couple planned to marry in Venezuela. But six days before their wedding, the husband presented the wife a draft of a prenuptial agreement in Venezuela. At the time, the wife was four months pregnant with their second child.

The only financial disclosures contained within the document were perfunctory references to the husband’s ownership of certain nominal non-convertible bearer shares with corresponding assigned nominal values.

Interestingly, the agreement did not provide for equitable distribution or alimony. The husband allowed the wife to peruse the document and then assured her that he would furnish full financial disclosures prior to the wedding.

But the day before the wedding, having not yet provided any financial documentation, the husband threatened to cancel the ceremony if the wife did not sign it.

The wife reluctantly signed the prenup and they got married. However, their marriage did not endure. Less than six years later, the husband filed dissolution proceedings in Miami.

The wife tried to invalidate the prenuptial agreement, contending it was the product of “duress, coercion, or overreaching,” and was unconscionable, as it had been executed in the absence of full and fair financial disclosure.

Following an evidentiary hearing, convened to determine the circumstances surrounding the execution of the agreement, the court entered an order. The following week, the parties were due to appear at the United States Embassy in Venezuela with their marriage certificate, in order to establish expatriation eligibility.

Several years later, the husband retained another attorney and sought to have the wife execute a postnuptial agreement, showing he believed the prenuptial agreement was unenforceable under Venezuelan law.

Even though the prenup was entered into by the parties in Venezuela, and Venezuelan law should govern its validity, both parties urged the application of Florida law.

The Florida trial court found the prenuptial agreement had been executed under duress and in the absence of both full financial disclosure and waiver of said disclosure. The husband appealed.

Florida Avoiding Prenups

I have written about prenuptial agreements in Florida before, especially avoiding them. Because of Florida’s policy of enforcing agreements, prenups and postnups can be difficult to void – but not impossible. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement, for example, is enforceable.

In Florida, to test the validity of a prenuptial agreement, courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Under Florida’s Uniform Premarital Agreement Act, a prenup may not be enforceable if a party can prove, in part, that it was not signed voluntarily; or was the product of fraud, duress, coercion, or overreaching; or it was unconscionable.

Some of these defenses may also require a party to show they were not given a fair and reasonable disclosure of property, and did not voluntarily and expressly waive that right, and did not have adequate knowledge of the property or financial obligations of the other party.

“No Agreement, No Wedding!”

In Florida, a premarital agreement is not enforceable if the party against whom enforcement is sought proves that the agreement was the product of fraud, duress, coercion, or overreaching.

But what is “duress”? Often, duress is defined as a condition of mind produced by an improper external pressure or influence that practically destroys your free agency and causes you to make a contract not of your own volition.

Proving duress is difficult, and requires showing the prenup was not free choice or will and this condition of mind was caused by some improper and coercive conduct of the opposite side.

In the Venezuelan case, the testimony established that the husband initially presented his pregnant wife with the disputed prenup six days before the wedding. At that time, the wife asked for evidence regarding his net worth. The husband assured the wife such evidence would be forthcoming.

But instead of honoring his pledge, the day before the wedding, the husband demanded she sign the prenup, with the added ultimatum of “no agreement, no wedding.”

However, it is not unusual for people to give an ultimatum that they will not marry their spouse without a prenuptial agreement. Ordinarily, the “no agreement no marriage” ultimatum does not constitute duress because there is nothing improper about taking such a position.

In the recent case though, the Husband also threatened life-altering consequences, by imperiling their shared, long-term plan to begin life anew with their children in the United States. The court found that these circumstances, which were unrebutted by the husband, were sufficient to support a finding of duress.

The opinion is available here.

 

Can a Prenup Protect De Niro’s Dinero

Robert De Niro’s estranged wife, Grace Hightower, is demanding half of the actor’s half-billion dollar fortune, despite signing a prenuptial agreement in 2004. Feeling the ‘Heat’, De Niro is wondering whether his prenup is valid and will survive court scrutiny.

Void Prenup

Analyze This

According to the New York Daily News, details about the Hollywood star’s finances emerged during a hearing in Manhattan Supreme Court that revealed the two are battling over how to interpret a 2004 pre-nuptial agreement signed after a previous divorce.

De Niro attorney Krauss-Browne said that under the terms of the pre-nup Hightower was entitled to a $6 million apartment, $500,000 cash, $1 million each year and half the value of their marital residence.

“Nope, I’m entitled to 50%.”

Hightower, 64, is arguing she is entitled to much more — and that De Niro, 75, has kept her in the dark about their money since 2008. She believes she is entitled to a cut of 38 movies and 35 new business ventures since 2004 that involved the Oscar-winning actor.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just resolving the ‘Casino’ like uncertainty in a 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. This can be especially important in second marriages.

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. Prenups can be a reliable guide down rough rivers if they’re done right.

Great Expectations

Hightower attorney Allan Mantel put the couple’s revenue since their prenup at $300 million — $250 million of which came from movies. He estimated that De Niro’s net worth was $500 million.

In addition to De Niro’s work in Hollywood, much of their earnings came from his ownership of the Nobu chain of restaurants and Greenwich Hotel.

Hightower’s frustration that she was not considered an equal led to their previous divorce in 1999, Mantel said.

“That’s what caused the first divorce — we want a partnership. She enhances his goodwill. She enhances his career. I agree you’re going to be my 50% partner’ — it’s in the agreement.”

Hightower says that part of the deal is void due to De Niro’s alleged shady accounting practices. The judge then joked:

His income will fall now that Special Counsel Robert Mueller is out of the picture — less ‘Saturday Night Live,’” the judge remarked, referencing De Niro’s appearances on the sketch show.”

De Niro sat stone-faced.

The judge made a more serious observation as the hearing concluded.

After the hearing, De Niro, as is his custom, held a newspaper over, his face and became aggravated while struggling to find his driver waiting for him outside the courthouse.

Meet the Parents

De Niro filed for divorce from Hightower in December. They are also battling over custody of their 7-year-old daughter, who they had through a surrogate. They also have a 21-year-old son.

The New York Daily News article is here.

*Photo courtesy Georges Baird