Tag: Postnuptial Agreements

Daredevil without a Prenup

Posted by Ron Kauffman on

Ben Affleck and Jennifer Garner have not resolved their jointly filed divorce one year after filing. Reports suggest they never had a prenuptial agreement, which may be the reason the divorce is taking so long after they filed.

Gone Girl

The actors filed to end their 10-year marriage on April 13, 2016, nearly two years after they originally announced their split, but there are no reports of a prenuptial agreement filed.

The divorce isn’t finalized and the two have been in mediation to settle privately. The actors are seeking joint physical and legal custody of their three children.

Affleck and Garner, costarred in 2003’s “Daredevil” and wed in 2005. They announced their intention to divorce in June 2015, after 10 years of marriage, but did not file documents until now.

“After much thought and careful consideration, we have made the difficult decision to divorce,” the couple said in a joint statement in 2015.

According to TMZ, Affleck and Garner do not have a prenuptial agreement, meaning everything is on the table for negotiation and possibly trial.

Prenuptial Agreements

I’ve written about prenuptial agreements before.

Many people think prenuptial agreements are for actors such as Affleck and Gardner. That is just fiction out of Hollywoodland. Even if you don’t enter a marriage with Affleck’s wealth, it might not be a bad idea to have a prenup.

The lack of a prenuptial agreement for Affleck has probably means that a lot of issues they could have resolved at the beginning of the marriage, may have to be fought over the past year since they’ve filed..

Prenuptial agreements, or “prenups,” are contracts entered into before marriage that outline the division of assets 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.

Chasing Amy

Putting aside the lack of a prenuptial agreement, Affleck and Gardner seem to be doing well by their children. The whole Affleck Gardner family recently made a group trip to Sea Life Park in Oahu. “During the trip, Garner stayed at a resort while Affleck stayed at a nearby house. Additionally, there are reports that Affleck is looking to buy a home near Garner in Los Angeles.

“Ben is looking to buy a family friendly house,” a source previously told PEOPLE in October 2017. “Lindsay shared her opinions, but it was clear that they are not buying a house together.”

Affleck had been living in a rental since he moved out of the family estate he used to share with Garner. Prior to their divorce filing last April, he was living in the family’s guesthouse.

The Los Angeles Times article is here.

 

Prenups are Nothing New

Posted by Ron Kauffman on

A 2,480-year-old Egyptian scroll was recently found. But the scroll is not some royal decree from the ruling Pharaoh, or an ancient poem written on the shores of the Nile. Egyptologists report that the scroll is a prenuptial agreement.

Ancient Prenups

Written in demotic script — demotic being derived from the hieratic writing system, a kind of shorthand for hieroglyphs — the prenup was made to ensure that if the union between the signers didn’t work out, the wife would be adequately provided for.

Her compensation would include “1.2 pieces of silver and 36 bags of grain every year for the rest of her life.”

Most people have no idea that women in ancient Egypt had the same legal rights as men. Egyptian women, no matter their marital status, could enter into contracts, sue and be sued, and serve on juries and as witnesses.

In ancient Egypt, women used to be able to acquire and own property, and fairly often, they did: a fragment of papyrus from 1147 B.C., denoting thousands of land holdings names women as the owners of about 10 percent of the properties listed.

Back then, married women could file for divorce, and they were even ensured alimony — provided they had a document like a prenup, which they could write up any time before or during the relationship — at which point it would be more accurately described as a postnup.

Florida Prenups

Prenuptial agreements aren’t just for ancient pyramid dwellers, 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.

Nile Negotiations

This ancient Egyptian prenup was signed in 365 BCE. Such contracts were extremely advantageous to the wife. The prenups were purely economic, promising not eternal faithfulness or mutual responsibility – but cold, hard cash.

The ancient Egyptian prenup ensured the wife could survive with or without her husband, although she had to pay for the privilege, giving him 30 pieces of silver upfront in exchange.

The prenup process was simple in ancient Egypt. The marrying couple would get together, and bring along a scribe and some witnesses. The person proposing the agreement would speak it aloud, and the scribe would write the terms down, translating them into legal language along the way.

Then the second person would either accept or refuse to sign the prenup. If he or she accepted, the contract was considered binding. If one of the signatories broke the terms, he or she would appear before a court.

The Atlas Obscura article is available here.

 

Is “Prenup” a Four-Letter Word?

Posted by Ron Kauffman on

Interesting view on prenuptial agreements: He traded his passion for stability, whereas I followed my passion at the expense of stability. Should I be entitled to his money?

The New York Times is running an article which deals heavily with the personal feelings involved in discussing, negotiating and signing a prenuptial agreement. The article has some great moments.

On the corner of my lawyer’s desk was a red button marked “No.” It was the type you might find in a display of gag gifts, next to the Whoopee cushions and boxing nun action figures.

I wanted to get married then, but Matt held back. Marriage scared him more than having a child together, and a big part of his fear was financial. He said he wanted us to sign a prenup.

I cringed but ultimately agreed, believing it was the only way forward.

He said he would pay all of the lawyers’ fees and make it as easy as possible. It sounded simple. The reality, however — especially having to confess every detail of my sketchy financial history to this lawyer — was nothing short of awful.

Florida Prenups

They may sound “awful” to some, but the reality is different. Prenuptial agreements are a subject I’ve written about before. Prenuptial agreements can be extremely important if you are thinking of marrying again, and they are not just for the ultra-rich.

You can limit what’s in a prenup. Some prenups 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, as in the New York Times article, you can add to the prenup how much the lower-income spouse will receive. Also, if you have children from previous marriages, you can also provide some protection for an inheritance.

Here are a few reasons why:

Keeps Your Non-Marital Property Non-Marital.

The property you brought into the marriage is yours. But over time it is common for people to start mixing things up.

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

You Can Change the Law.

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

However, through a prenuptial agreement you can modify Florida’s legal standards for awarding alimony, in addition to modifying what the current law says about the amount of support and the duration of the alimony period.

Avoid Expensive Divorces.

Let’s face it, divorce can be expensive, and the cases don’t end quickly. A prenuptial agreement can simplify things by resolving issues ahead of time, way before the divorce is even filed.

Once you have entered a prenup spelling out what happens in the event of a divorce, the case becomes a lot more cheaper, simpler and faster to resolve.

Protects Your Children’s Inheritance.

A prenuptial agreement, or “prenup” for short, protect property from falling into the hands of the new spouse, often seen by children from earlier marriages as a “gold digger.”

An agreement helps assure your children that any inheritance is protected, and they don’t need to resent the new spouse.

It is important to be aware of all of the consequences of marriage, and do what planning you can to avoid complications and costs in advance by entering into a prenup.

Negotiating the Prenup

Back at the Times article on the prenup: “on paper, I had approximately $3,500 in savings, no retirement account and a four-year-old Toyota Yaris with a Blue Book value of $8,000, on which I still owed $4,000.”

Humbled cannot begin to describe how I felt. More like demoralized, demolished and desperate.

My lawyer asked if I had read the document carefully and understood the terms. I numbly nodded, but I was lying. I hadn’t read it. I didn’t understand the terms.

Money, Matt often said, was what people fought about most and what broke up relationships and marriages. True to form, we had been fighting about money since we started dating, our arguments complicated by the vastly different ways we had chosen to live our lives.

The lawyer looked up, winked and pushed the “No” button, filling his office with mechanized cries: “No way!” “I don’t think so!” “Nope!”

Finally, for several thousand more dollars in fees, my lawyer negotiated with Matt’s lawyer to change language in the prenup that Matt had never asked to be included so that when we sold the house we didn’t yet own, I would get my fair share.

Two years later, I don’t even know where we put our prenuptial agreement, and I hope I never need to know.

The New York Times article is here.

 

Prenups and Millennials

Posted by Ron Kauffman on

Millennials are delaying marriage until later in life than previous generations. They are more likely to have careers, businesses and property. The Washington Post reports they are also much more likely to have prenuptial agreements too.

Amanda Farris works in accounting and likes to “play things safe” when it comes to her savings and investments. Her boyfriend, Andy Salmons, owns a coffee shop and is a serial entrepreneur not afraid to take risks.

The two have been together for nearly four years and are talking about marriage. But before they vow to stay together for better or worse, they’ve agreed to come up with a plan for how they would protect their finances on the — slim, they hope — chance that their relationship should head south.

“I wanted to find some middle ground,” said Farris, 31, adding that a prenuptial agreement would separate her retirement savings from Salmons’s business and the debt he took on to launch that and other ventures.

“It’s important for us to keep things separate,” Salmons, 32, said. “I don’t ever want my decisions to put her in jeopardy.” Hence the rise of prenuptial agreements with millennials.

Florida Prenuptial Agreements

Prenuptial agreements are important for couples planning to marry. Many people believe prenuptial agreements are only for the rich and famous. However, prenuptial agreements help all couples. I have written extensively on prenuptial agreements.

Prenuptial agreements 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.

The Prenup Millennial Challenge

For generations, prenuptial agreements have proven a sticking point for couples who deemed them unromantic. In some relationships, the contracts can signal a lack of trust or suggest that one person is foreseeing an end to the union.

But over time, the equation for when and why two people should marry has changed. In the 1970s, about 8 in 10 people had married by age 30, according to a U.S. census report. In 2016, that same percentage wasn’t reached until age 45.

Millennials are also less inclined to get married while they’re young and broke. More than half of people in their 20s and 30s say it is important for them to be financially secure before they get married, according to a 2015 survey by Allstate and the National Journal.

That increases the chance that when two people tie the knot, each will have a career or business that they want to protect with prenuptial agreements, financial advisers say.

In 1975, about 43 percent of women were stay-at-home moms or homemakers, according to the census report. In 2016, only 14 percent of women were home full time.

Prenuptial agreements are a relatively modern concept. It was only within the past 25 years or so that the contracts became widely accepted in most states, coinciding with the rise of divorce.

Prenups also have evolved as relationships have changed. In the ’70s, when couples generally married younger, prenuptial agreements were mainly used for estate-planning purposes.

They’re also emerging as a tool for dividing debt loads. About 41 percent of couples had student loan debt in 2013, compared with 17 percent in 1989, according to the census report. The size of that debt burden is growing as college becomes more expensive.

The Washington Post article is here.

 

Marital Settlement Agreements

Posted by Ron Kauffman on

“Shahs of Sunset” star Golnesa “GG” Gharachedaghi is having an interesting divorce problem. Her pending divorce from her husband, Shalom Yeroushalmi, has run into a serious roadblock: her husband refuses to sign the divorce papers.

According to a Page Six report:

“There are no issues about spousal support, assets or those typical divorce things at all,” the source said. “He is not asking for anything. What he’s basically doing is tormenting her. He’s not signing just to give her a hard time.”

“He just keeps saying he’s going to sign, then he doesn’t sign,” the source added. “He’s trying to drag it out and prevent her from moving on.”

Marital Settlement Agreements

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.

Conclusion

If Yeroushalmi signs the marital settlement agreement, the divorce petition can make its way through the system, allowing the former couple to sever all formal ties. However, if he doesn’t, a judge may grant GG a default divorce after a considerable amount of time of inactivity on Yeroushalmi’s behalf.

GG and Yeroushalmi had a whirlwind romance. They secretly tied the knot at the end of January 2017, though GG realized within days she had made a terrible mistake.

“I wanted to throw up, “she said. “I was just thinking, ‘My dad’s going to kill me right now. And my mom is going to wake me up and then kill me again.’”

She filed for a divorce after one month of marriage.

The Page Six article is here.

Postnuptial Agreements are on the Rise

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, April 4, 2016.

Like prenups, postnups are contracts that spell out how assets and debts should be split. Divorce lawyers are citing an increase in spouses asking for postnuptial agreements in the last three years.

The Wall Street Journal ran an article last month on some of the common reasons for a postnup:

Sometimes, it is to punish a spouse for bad behavior, such as infidelity. Other times it is for the opposite reason: to show commitment by guaranteeing a richer settlement if things don’t work out.

I’ve written about postnuptial agreements in the past. They are also used when, for other reasons, spouses want to change the financial agreements set in a prenup.

Postnups allow you to change the law. Right now in Florida, there has been a bill passed to modify the alimony law. The bill is waiting the Governor’s signature.

Through an agreement you can modify Florida’s legal standards for awarding alimony, in addition to modifying what the current law says about the amount of support and the duration of the alimony period.

The probability of divorce is around 50% for first marriages. For second marriages, it’s more like 70%. What some people 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.

Postnuptial agreements are similar to prenuptial agreements, but are entered into after a marriage. Postnups can cover everything from how to divide financial assets in divorce to limits on partners’ weight gain – just as prenups can.

Prenuptial agreements and Postnuptial agreements can be extremely important if you are thinking of marrying. They are not just for the ultra-rich, but are an important part of every healthy marriage decision.

The Wall Street Journal article is here. Thanks to Thomas Sasser for the pointer.

Postnuptial Agreements: The Agreement for Couples Already Married

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

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

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

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

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

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

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

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

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

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

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

There are some good reasons for a postnup:

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

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