Tag: Postjudgment 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.

Cheap Online Prenups

Posted by Ron Kauffman on

A segment aired on the ABC television show Shark Tank about a company selling cheap online prenups. There is no question a contract can be done cheaply online – especially when no lawyers are involved.  But lawyers  hired to create, or challenge, or defend real world prenuptial agreements can tell you if the cheap, online prenups are worth it.

Cheap Prenup

“He who represents himself, has a fool for a client”

No one likes to read the fine print on websites they visit. But, maybe you’re the kind of person who is comfortable getting a medical diagnosis from WebMD! Even if you are, you may want to avoid unpleasant surprises and look through the website’s “Terms of Use” (the agreement every user must agree to and abide by in order to use a website or service).

Websites may advertise that their online legal services and prenuptial agreements are prepared by “family lawyers.” However, if you look at the website’s Terms of Use, they may likely reveal that the prenups they are selling you – which will govern years of alimony payments, the division of all your property, tax consequences, and your life after marriage – were created without any “legal advice.” Or my personal favorite: no law was considered about your situation when drafting your prenuptial agreement.

Prenuptial agreements are important documents. So, if you don’t care that your cheap, online prenup did not take into consideration any law, let alone any changes in the law, or that any of the information is current, a cheap online prenup may fit nicely next to your online medical diagnosis.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for tech billionaires, celebrity actors and rock stars. Prenups are about much more than just resolving who gets that expensive Montana ranch acquired during a marriage.

Any couple who brings any personal or business assets (or debts) into their marriage can benefit from a prenuptial agreement. They are important to have in place before a couple starts investing in businesses, buying properties, and accumulating mountains of debt.

But just having a prenup is not sufficient. That’s because 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 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.

Couples wanting to sign one can enter into a premarital agreement with respect to their rights and obligations in any of their property, whenever and wherever acquired or located; their right to buy, sell, use, transfer, or otherwise manage and control their property and the disposition of their property if they separate, divorce, die, or any other event.

Because prenuptial agreements may be challenged in court, 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.

Good, Cheap, or Fast? Choose Two

Prenuptial agreements are very technical and one size does not fit all. They are particularly important to protect your future income, children from another marriage, potential inheritances, businesses and your business partners, other assets, and your sources of income.

The last thing that you want to do is wonder if you are protected by a cheap, online prenup; one which may not be enforceable on its face. As mentioned above, Florida adopted the Uniform Premarital Agreement Act. The UPAA is Florida’s recognition that there is not always uniformity in how prenups are enforced, challenged and defended.

There are many nuances in the law of prenups which can differ from state to state. For instance, some provisions in a prenup which are available in one state – such as the ability to waive temporary alimony – may not be available in another state. There may also be differences between states about the sufficiency of the financial disclosures required.

There are also questions about privilege and confidentiality. In Florida, communications with your attorney are generally privileged. This means that communications between a client and their lawyer can be confidential. This can also mean that, absent some exception or waiver, neither an attorney or a client can be compelled to divulge confidential communications made during the rendition of legal services.

What do online, cheap prenup websites offer? As the websites plainly tell you, they are not your law firm. So, communications between you and the website are probably not privileged communications under the attorney-client privilege or work product doctrine.

This could result in your communications not being protected. And if your prenup gets challenged in court, you may be in the uncomfortable position of watching someone you thought was your lawyer testify against you.

One cheap, online prenup website said it best:

“Any Legal Information provided is not a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.”

The JDSupra article is here.

 

Da Vinci Code meets the Family Code: Setting Aside a Settlement Agreement

Posted by Ron Kauffman on

The Da Vinci Code meets the Family Code as popular author Dan Brown’s ex-wife has filed a claim to set aside their settlement agreement – after their divorce ended – and sued him for money damages. The inferno in New Hampshire will deal with fraudulent financial affidavits and other claims to set aside a marital settlement agreement.

Setting Aside Agreements

Deception Point

In a lawsuit filed this week, Blythe Brown is suing Dan Brown for misrepresenting the couple’s wealth in a sworn financial affidavit he signed as part of their divorce agreement, and for intentional and negligent infliction of emotional distress.

Author Dan Brown, is a New Hampshire native. He is best known for his thriller novels, including the Robert Langdon novels Angels & Demons, The Da Vinci Code, The Lost Symbol, Inferno, and Origin. His novels are treasure hunts that usually take place over a period of 24 hours. They feature recurring themes of cryptography, art, and conspiracy theories.

Dan Brown’s books have been translated into 57 languages and, as of 2012, have sold over 200 million copies. Three of them, Angels & Demons, The Da Vinci Code, and Inferno, have been made into films.

He is being sued by his ex-wife, who now claims he engaged in “unlawful and egregious conduct” that amounted to a “proverbial life of lies” during the last several years of their marriage.

In the lawsuit filed in New Hampshire, Blythe Brown alleges that the 56-year-old author, to whom she was married from 1997 until last December, “secretly siphoned” off vast sums of money “to conduct sordid, extra-marital affairs” with women, including a Dutch horse trainer on whom he lavished extravagant gifts.

According to the former wife the lawsuit is about standing up for myself and asserting my self-worth. I have continually tried to absorb the shocking truth withheld during our divorce that Dan had been leading a double life for years during our marriage, all while coming home to me.

Florida Marital Settlement Agreements

I have written on the topic of agreements before. In Florida, different types of agreements are treated differently. A prenuptial agreement, for example would be covered under the Premarital Agreement Act.

An agreement reached, not before a marriage like a prenup, but after divorce case has already been filed, is treated with a different standard.

That’s because after a couple become involved in full-fledged litigation over divorce property and alimony rights, they are necessarily dealing at arm’s length and without any kind of special fiduciary relationship of un-estranged marital parties or single people.

In cases like the Brown case, which involved a stipulated settlement agreement made in the course of what was likely fierce divorce litigation, a former spouse challenging a litigated settlement agreement is limited to showing fraud, misrepresentation or coercion. Any kind of inquiry into the “unreasonableness” or “unfairness” of the settlement agreement to either party is usually not permitted.

Angels and Demons

Blythe also claimed credit for inspiring much of his work and coming up with the premise for “The Da Vinci Code.” She also alleged that Brown hid scores of future projects worth “millions” from her, including a television series as well as a children’s book due out in September.

The most explosive allegations, however, are the extramarital affairs. Describing Brown’s behavior as “unlawful and egregious,” Brown said she only learned about it after the pair divorced in 2019 after 21 years of marriage.

She accuses the best-selling author of secretly diverting funds to pay for gifts to an unnamed horse trainer, including several Friesian horses and financing for his lover’s horse training business. She alleges the “illegal behavior” took place in New Hampshire, Europe and the Caribbean.

“Dan has lived a proverbial life of lies for at least the past six years, seeming to be the epitome of a world-famous novelist leading a simple life in his home state of New Hampshire, while in reality he was something quite different,” the lawsuit claims.

For years, she alleges, that Dan has secretly removed substantial funds from his and Blythe’s hard-earned marital assets to conduct sordid, extra-marital affairs with women — one half his age — and to pursue a clandestine life.

Dan Brown, in a statement, said he was “stunned” by the allegations and called the complaint “written without regard for the truth.” He said he never misled his ex-wife on their finances during their divorce and that she ended up with half their holdings after they divorced.

“For reasons known only to her and possibly her lawyer, Blythe Brown has created through this suit a fictional and vindictive account of aspects of our marriage designed to hurt and embarrass me.”

Blythe Brown, a horse enthusiast who is involved in horse and carriage driving competitions, insisted she was only filing the lawsuit to stand up for herself and assert her “self-worth.”

In her lawsuit, Blythe Brown portrayed herself as inspiring Brown to give up songwriting after the pair met in 1990 and recognizing his “unlimited potential as a writer of fiction.” She also alleges she helped craft key themes and ideas for many of his books, “served as lead researcher, first-line editor, and critic, and was Dan’s literary partner in the fullest sense.”

“Indeed, Blythe and Dan formed a partnership in the literary world that was to last for nearly thirty years, taking them places that they could never have imagined,” according to the lawsuit, in which she seeks unspecified damages.

During a 2006 trial against the publisher of the “The Da Vinci Code,” the court heard how Blythe Brown was an essential contributor to his million-selling historical thriller.

Two authors unsuccessfully sued, claiming that Brown “appropriated the architecture” of their book in a high-profile London court case.

According to witness statements and court testimony, Blythe Brown led the massive research effort, supplied countless notes and suggestions and offered an invaluable “female perspective” for a book immersed in “the sacred feminine.”

In a statement, Dan Brown told the Globe he’s “stunned” that his ex-wife is “making false claims” and says he was fair and truthful in their divorce settlement. On the day that Blythe and I married, I never remotely thought that we eventually would grow so far apart.

The Boston Globe 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.

 

Celebrity Prenuptial Agreements

Posted by Ron Kauffman on

Prince Harry said he knew Meghan Markle was the one the first time they met. Now he’s showing his confidence in their union by rejecting a prenuptial agreement, reports the Daily Mail. What are prenuptial agreements and why does Meghan Markle want one?

The Royal Prenup

According to the article:

“There was never any question in Harry’s mind that he would sign a prenup,” one of his friends said. “He’s determined that his marriage will be a lasting one, so there’s no need for him to sign anything.”

Okay, but real talk: For one, prenups aren’t legally enforceable in the UK, although they are taken under consideration in divorce cases.

And, Harry isn’t the only royal who has shunned prenuptial agreements. Prince William and Kate Middleton reportedly didn’t sign one before their wedding, and neither did their mother, Princess Diana.

Florida Prenups

I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just uncertainty in a marriage. Any couple who brings any personal or business assets to the union can benefit from one.

The most basic of these prenups lists an inventory of premarital assets that would stay with the original owner in case of a divorce.

The agreement can also include monetary support during and after a marriage, child support, and how future income or additional assets like inheritance will be shared (or not shared) if the couple splits.

Many think prenuptial agreements are for the wealthy or famous, like Prince Harry. But, you don’t always enter a marriage with riches, or guarantees that the bliss will last. It might not be a bad idea to have a plan in place – in case of intrigue at the palace.

Prenuptial agreements, typically resolve things like alimony, ownership of businesses, title of properties, in addition to the lifestyle clauses of celebrities.

There are many other, more mundane, concerns that can be addressed in the prenup:

  • Caring for a parent
  • Going back to school;
  • Shopping habits
  • Credit card debt;
  • Tax liabilities;
  • Alimony and child support from previous relationships; and
  • Death or disability.

Celebrity Prenups

Many celebrities have prenuptial agreements which can have unique clauses too. For example:

Jay-Z and Beyoncé

If this couple ever find themselves not-so “crazy in love,” the couple reportedly signed a prenuptial agreement that gives Beyoncé $5 million for each child they have together, and that Beyoncé would earn $10 million if the marriage ended before two years, and $1 million each year that they remained married, up to 15 years.

Michael Douglas and Catherine Zeta-Jones

The couple has been married since 2000, but if they divorce, Catherine would reportedly receive $2.8 million for each year of marriage, according to New York Daily News. (So, if they split today, that would add up to over $50 million.) And if Michael cheated, she would also get a $5 million bonus.

Mark Zuckerberg and Priscilla Chan

There’s no word on if the couple signed an official prenuptial agreement, but the book Once You’re Lucky, Twice You’re Good reportedly revealed that Priscilla had Mark sign a relationship agreement when she moved in with him after graduating from Harvard.

Their purported agreement required the couple to have a date night once a week and spend 100 minutes of alone time together weekly outside of the office or their home.

The Women’s Health Magazine article is here.

 

Viva Las Agreements

Posted by Ron Kauffman on

Some lucky hound dog is going to buy Elvis Presley’s marital settlement agreement. It is now or never if you want to bid on the King’s agreement with Priscilla Presley too, because it’s going up for auction.

Return to Sender

As People magazine reports, one of rock-n-roll’s most famous marital settlement agreements will soon be a very expensive keepsake for any fan with a burning love of Elvis.

The document marks that period when Elvis checked into the Heartbreak Hotel, signifying the end of the Elvis and Priscilla Presley marriage, and is dated Aug. 15, 1972.

Fans may be all shook up, because each of the 12 pages contains fascinating details and offers the reader a snapshot into the details, and struggles involved between both parties that only legal documents can give.

Priscilla may have told the King don’t be cruel to her, because the agreement states that the former couple agreed to divide up their property via to avoid “emotional stress.”

Florida Marital Settlement Agreements

Many people don’t realize it, but 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, the division of assets and liabilities, alimony, child support, attorney’s fees, and any other items agreed to.

A marital settlement agreement entered into by the parties, and ratified by a final judgment, is a contract, subject to the laws of contract. Because they are contracts, they are subject to being set aside.

I have written about marital settlement agreements before. You can set aside an agreement in Florida by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

There is another ground to vacate a marital settlement agreement in Florida, and it has a few elements. First, you have to show that the agreement makes unfair or unreasonable provision, given the circumstances of the parties.

Once you have shown the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge of the finances at the time the agreement was reached.

The burden then shifts to the spouse defending the agreement, who may rebut these presumptions.

Can’t Help Falling in Love

“The parties were married on May 1, 1967 in Las Vegas, Nevada,” the agreement states:

Unfortunate circumstances and unhappy differences have arisen between the parties by reason of which they have lived separate and apart since February 23, 1972, and by reason of which they intend to dissolve their marriage.

For suspicious minds wondering what’s in the settlement signed by both Elvis and Priscilla: the music legend signed over his famous 1971 Mercedes Benz, his 1969 Cadillac Eldorado, a 1971 Harley Davidson motorcycle and $100,00.

Priscilla was definitely not moving into the Ghetto. She also received half the income from their three homes located in Beverly Hills, Los Angeles and Palm Springs, California.

A pre-sale estimate of the settlement is between $26,318 to $32,898. The last time the settlement documents came up for sale in 2011 they sold for just under $8,000.

The former couple married on May 1, 1967. Elvis was 32, while Priscilla was 21. The had daughter Lisa Marie less than a year later in February 1, 1968.

The People magazine article is here.

 

Heat and Bull in Post-Judgment Agreements

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, July 11, 2016.

Dwyane Wade’s ex-wife isn’t over the divorce. She wants to throw out the settlement agreement, and get part of his new Chicago Bull’s contract. When you pull more bull, you can catch more heat.

After the basketball superstar signed a two-year, $47 million deal with his hometown Chicago Bulls, Wade’s ex-wife reportedly said she wants to re-open her divorce settlement.

According to the Chicago Tribune, Siohvaughn Funches asked a judge to throw out her settlement agreement with Wade, and give her a larger portion of his basketball earnings, including part of his new contract.

I’ve written about post-judgment divorce issues in the past. Now that Dwyane Wade is newly remarried, there may be an opportunity for Funches to request financial information from the new spouse.

Funches and Wade settled their divorce back in 2013 with a settlement exceeding $5 million. Now she wants more after learning that Dwyane signed a $47 million deal with the Chicago Bulls.

The two married in 2002 when Wade filed for divorce in 2007 and the court made the split official in 2010. Wade, who grew up with Funches in south suburban Robbins, won sole custody of their two children, Zaire and Zion.

That 2011 custody decision upset Funches, who staged a bizarre sit-in protest in Daley Plaza claiming Wade had left her “homeless.” A non-disparagement clause in the settlement prevents both sides from trading further insults about each other.

According to Funches’ website, she recently completed a self-published autobiography that includes details of how she says she survived the “turmoils of injustice and corruption in the legal system in America.”

The Chicago WGNTV has the story here.