Tag: postnuptial agreement

Cheap Online Prenups

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.

 

Prenuptial Agreements and Waiving Alimony

Actor Robert De Niro is wondering why he signed a prenuptial agreement since it doesn’t seem to be waiving alimony very well. De Niro’s lawyer is claiming the actor is being worked to death to keep up with his estranged wife’s extravagant lifestyle — including her “thirst for Stella McCartney” and $1 million-plus diamond rings.

Prenup Alimony

Aging Bull

According to De Niro’s lawyer during a virtual court divorce hearing:

“Mr. De Niro is 77 years old, and while he loves his craft, he should not be forced to work at this prodigious pace because he has to/ When does he get the opportunity to not take every project that comes along and not work six-day weeks, 12-hour days so he can keep pace with Ms. Hightower’s thirst for Stella McCartney?”

He could get sick tomorrow, and the party’s over,” she said of the famed “Raging Bull” and “The Irishman” star. De Niro phoned into the proceeding, while Hightower appeared by video link.

She also claims De Niro is already a tax delinquent again — with the paychecks from his next two movies to offset his latest multimillion-dollar bill to Uncle Sam, his divorce lawyer claimed.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements and the De Niro divorce 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.

And as Robert De Niro is figuring out, even though a prenuptial agreement can waive alimony, temporary support during the divorce proceedings, and child support, may not be waivable in a prenuptial agreement. Florida courts have, recognized that, notwithstanding language in the prenuptial agreement to the contrary, spouses are still entitled to temporary support. In Florida, it is against the public policy to enforce any provisions waiving temporary support.

The War With Grandpa

The recent New York hearing came as the couple squabbles over how much temporary support De Niro should have to pay to Hightower until the divorce is finalized.

Hightower’s lawyer, Kevin McDonough, argued that since filing for divorce in 2018, De Niro has unfairly continued to cut the amount of money he has been sending his estranged spouse, including involving her credit-card expenses, going from $375,000 a month to just $100,000 monthly as recently as January.

But Krauss claimed that in the years leading up to their separation, Hightower was spending more and more. In just 2019, she had spent $1.67 million — including buying a diamond worth $1.2 million from jeweler Kwiat, the lawyer said.

Krauss said De Niro is behind millions of dollars on his taxes and that the money from his next two movie projects will go toward paying off those liabilities. De Niro — who was clobbered with a $6.4 million tax lien in 2015 — has previously said the pandemic decimated his finances.

“If he wants to direct or compel his family to leave their longtime home while he’s spending millions and millions and millions on himself, on his own homes, on renovating what his lawyers tongue-in-cheek call his cottage in Montauk, which he has poured millions and millions into over the past couple of years, he can take that position,” McDonough claimed of the actor.

“There have been no cutbacks and no slowdowns in Mr. De Niro’s lifestyle whatsoever,” McDonough said. Until the prenuptial agreement goes into effect, De Niro is supposed to pay her so she can “maintain the status quo” lifestyle she had when they were married — while also crying foul on Krauss’ claims that De Niro is struggling financially.

The Fox news article is here.

Straight Outta Court

Dr Dre is wondering if his prenup will get him straight outta court. He announced that he and his wife Nicole Young are getting divorced after 24-years of marriage. Young filed for divorce from Dre, whose real name is Andre Romelle Young, citing irreconcilable differences. One of the interesting issues is whether Young signed a prenuptial agreement.

Compton

Straight Outta Compton

The couple, who married in May 1996, share two children together, son Truice, 23, and daughter Truly, 19. Dre also has four children from previous relationships, daughters Tyra Young and La Tanya Danielle Young, and sons Marcel and Curtis.

The music mogul, 55, and Young, 50, announced their split after 24 years of marriage in June, and Dre revealed that the couple, who wed in 1996, does have a prenuptial agreement, despite initial reports that indicated the two do not. Young is asking for spousal support and a division of property.

In 2019, Forbes estimated that Dre’s net worth was $800m, making him the second-wealthiest hip hop artist in the world that year. The rapper’s fortune is in part due to the success of his headphone line, Beats by Dre, which was acquired by Apple in 2014 for $3bn.

According to TMZ, Dre, who listed the date of their separation as March 27, 2020, and cited irreconcilable differences as the reason for their split, agreed to pay spousal support but says any distribution of property should be controlled by their prenuptial agreement. Young’s petition did not mention a prenup and the outlet reported that she has claimed she never signed one.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just protecting yourself after your 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 spend too much time litigating in 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.

There are many 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.

Deez Prenups

The 55-year-old, who started his career as a member of the rap group NWA, also founded the record label Aftermath Entertainment, which previously signed Eminem and 50 Cent.

In 2015, Dre apologized to “the women I’ve hurt” following allegations of physical abuse against women, telling The New York Times:

Twenty-five years ago I was a young man drinking too much and in over my head with no real structure in my life. However, none of this is an excuse for what I did. I’ve been married for 19 years and every day I’m working to be a better man for my family, seeking guidance along the way. I’m doing everything I can so I never resemble that man again.

This divorce, given the stakes and the profiles of the parties, is expected to be completed relatively quickly and privately. Generally, anything he acquired before marriage would be his separate property, with or without a prenuptial agreement. Dre sold Beats during the marriage so there may not be a separate, or non-marital, component to it – meaning there is a very large sum of money that is at stake as marital property.

Young is going to get half of what he’s worth very likely, but while Dr. Dre has claimed he is willing to pay spousal support, Young probably won’t need spousal support after the marital estate is divided. She asked for temporary support and she may be able to get hundreds of thousands of dollars a month before the case is resolved. The couple was last seen together in public in February at the Tom Ford fashion show.

The Independent article is here.

 

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

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.

 

A Phaser-Proof Prenuptial Agreement?

William Shatner, who is best known for starring as Enterprise captain James T. Kirk on the original Star Trek, has reached the final frontier of his marriage: he has filed for divorce from his wife of 18 years. News reports suggest the Captain and his First Mate previously entered into a prenuptial agreement. But will it be phaser-proof?

Phaserproof Prenup

Beam Me Up Scotty

Transmission of the news was received this week about the divorce filing, but some sources believe the divorce process had already been in the works for a while. Importantly TMZ noted that there was a prenup in place, the couple never had children together, and neither party is asking for spousal support. Observers are predicting a smooth divorce will be transported down to court fairly soon.

I was attracted by her beauty first of all, which was an old syndrome for me … and I think I lucked out because she had so many other qualities as well. Elizabeth has a great sense of humor and a great sense of adventure and she’s very nurturing. That combination of beauty, style, intelligence, humor and loving horses and dogs and children and loving her home and making a home for us, is quite a combination.

This marriage is not the Captain’s first voyage. Shatner’s wife, Elizabeth, 61, is his fourth, er sequel, in movie parlance.

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. 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.

Prenups can be the best captain at the helm . . . 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.

Warp Speed Ahead

The Shatners are still negotiating the financial terms, a source told the site TMZ.

‘Per the terms of the prenup, neither party will receive any support from the other.

The Captain has had a colorful love life previously that resulted in four marriages and three daughters. Shatner and Elizabeth Shatner married in February 2001. He was previously married to Gloria Rand, Marcy Lafferty and Nerine Kidd, and has three daughters, Melanie, Leslie and Lisabeth, with Rand. Elizabeth Shatner was previously wed to Michael Glenn Martin.

Sources said Shatner and Elizabeth are expected to soon submit their divorce documents for a final signature from a judge.

The TMZ article is here.

 

Heartbreak Postnuptial Agreement

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.

 

When to sign a Prenuptial Agreement

More and more people are using prenuptial agreements. The belief that a prenuptial agreement is only for the rich and famous is fading away. Increasingly, prenups are becoming more widely used. But can the timing of the prenup be an issue?

Prenuptial Agreement

Florida Prenuptial Agreements

These days, the prenup has become more important than ever. People are marrying when they are older, and better informed about the implications of marriage. Many people have married before. So, more people look for prenuptial agreements.

Prenuptial agreements aren’t just for people entering second marriages, they are important for any couple planning to marry. I have written extensively on prenuptial agreements.

A prenup can help keep your non-marital property yours. The property you brought into the marriage is yours – mostly. 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 might be able to avoid this task, and save some money down the road.

Prenuptial agreements also help you to change the law. For example, 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 prenuptial agreements 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.

Second Marriages

For second marriages, a prenup is an especially good idea. What some clients don’t realize is that going through a second, third, or fourth divorce can be more complicated than first-time divorces.

In multiple divorces, couples are older, and have less time to make up for losses. Also, couples are competing for dwindling resources. Child-support, alimony, and dividing up of the retirement accounts may still be pending, and there can be little left to divide in a second divorce.

Some can simply state what assets each party has brought into the marriage, and what assets each party will take away if the marriage ends. Or, if there is a disparity in incomes, you can add to the contract how much the lower-income spouse will receive.

Timing of Prenups

But many people are afraid of prenups. They are afraid prenups take the romance out of getting married. That’s too bad. As I’ve written about before, there are a lot of concerns prenups can handle:

  • Will you have to care for an older parent
  • Who pays or supports the house when going back to school
  • Agreeing to spending habits
  • Who pays for what credit card debt
  • Who handles the costs of a business
  • Who pays the taxes
  • What happens if someone dies or becomes disabled

The truth is that prenuptial agreements can put a damper on things because people wait too long to address them. Clients make appointments for a prenup a few days before the wedding.

As a result, there may not be sufficient time to prepare and review the agreement, and it could be challenged as unfair.

If you want a prenuptial agreement, then talk to your future spouse about one at the beginning. Being upfront about your needs, and not springing it on them at the last minute is proper planning. Proper planning and allowing a lot of time will protect the agreement accusations of undue pressure.

If the prenuptial agreement is drafted, signed and put away long before the wedding, you will better protect yourself, and have some protection against challenges about bad timing.

 

Prenuptial Agreements in Jeopardy

Many people are starting to notice that the new tax law could wreak havoc on their prenuptial agreement. If you are planning on getting married this summer, here’s a few things to consider before signing that prenup.

Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements, or prenups, are agreements you sign with your fiancé before marriage that outline how you two would end up in case of divorce or death.

A prenup can resolve things like alimony, ownership of businesses, title of properties, and even each spouse’s financial responsibilities during the marriage.

There are many other 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.

A few of the points of a prenup, is that you get to decide on the amount of alimony, the terms of alimony or whether you will pay any alimony at all, and how to divide movie royalties and other assets.

And because prenuptial agreements can impact how much alimony you agreed to pay or received, the new tax overhaul comes into play heavily in your agreement.

Tax Law Overhaul and Alimony

The new tax law offers an avenue for challenge because courts will likely have to consider how the law has changed since the contracts were created.

For example, beginning in 2019, people paying alimony will be no longer be able to deduct their alimony payments. That little change in the law could mean they effectively pay double in post-tax costs compared to what they had previously agreed to in their prenups.

President Trump, who pushed the new tax law, told New York Magazine in 2006 that his prenup with Melania Trump made his marriage stronger despite being a “hard, painful, ugly tool,” he didn’t disclose any details of the agreement.

More than 60% of divorce attorneys said they had seen a rise in the number of clients seeking prenups in the previous three years, while just 1% reported a drop.

There aren’t hard numbers, but it’s fair to say that prenups have become more popular in recent years as younger Americans delay marriage, and the divorce rate has skyrocketed for people over 50 who often use prenups if they remarry.

Prenups and New Tax Changes

If prenuptial agreements aren’t amended to factor in the tax changes, it will be up to divorce attorneys to settle — or judges to decide — whether the amounts or formulas still stand for couples who divorce starting in 2019.

Even if both parties agree to an adjustment in alimony, they’ll need to agree on exactly how much to cut the payers’ obligations. Divorcing couples could end up hiring rival accountants as expert witnesses to sway judges.

For those in the top income-tax bracket — the likeliest to have a prenup — being able to deduct the payout from taxable income had been a big saving because every dollar in alimony reduces the payer’s taxable income by the same amount.

Top earners in high-tax areas like California and New York City can face marginal tax rates close to 50 percent. Without the deduction, a spouse who agreed to write a $10,000 check each month could be on the hook for what is effectively almost $20,000 in pre-tax income.

Lawmakers said they eliminated the alimony deduction to end what they called a “divorce subsidy” under the old law.

The change, which raises an estimated $6.9 billion over the next decade, doesn’t affect divorces and separation agreements finalized before the end of 2018.

However, next year the newly divorced won’t be able to deduct alimony payments, but recipients will get the money tax-free (previously, the payments had to be reported as part of their taxable income).

Ultimately, the change could hurt alimony recipients. Payers could plead with judges to revise their obligations given the new law — a valid legal argument given that many prenups specifically mention that the payments are intended be deductible.

Those potentially reduced payments are likely to overpower the benefit recipients get from being able to receive the payments tax-free because they tend to be in lower tax brackets than the payers.

The Bloomberg article is here.

 

New Article: Ambiguous Divorce Agreements

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

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.