Tagged: alimony RSS

  • Michael Fender 2:04 pm on April 22, 2010 Permalink | Reply
    Tags: alimony, , , , , , premarital,   

    Basics of Premarital or Prenuptial Agreements in Orlando, Florida 

    “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.

    “Property” includes, but is not limited to, an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.

    A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

    Parties to a premarital agreement may contract with respect to:

    1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
    2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
    3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
    4. The establishment, modification, waiver, or elimination of spousal support;
    5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
    6. The ownership rights in and disposition of the death benefit from a life insurance policy;
    7. The choice of law governing the construction of the agreement; and
    8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.

    The right of a child to support may not be adversely affected by a premarital agreement.

    A premarital agreement becomes effective upon marriage of the parties.

    After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.

    A premarital agreement is not enforceable in an action proceeding in a divorce under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that:
    1. The party did not execute the agreement voluntarily;
    2. The agreement was the product of fraud, duress, coercion, or overreaching; or
    3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
    a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
    b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
    c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

    If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution or divorce, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

    An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

    If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

    Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

    ________________________________________________________________________

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer for representation or advice, please contact Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

     
  • Michael Fender 10:55 am on March 2, 2010 Permalink | Reply
    Tags: alimony, , , , , ,   

    Defense of Laches to Enforcement of Old Child Support or Alimony in Orlando, Florida Area 

    Occasionally a case presents itself in the Orlando, Florida area where a seemingly dormant claim arises with regard to an old child support or alimony order from a divorce that occurred many years ago. The child or children may be well past the age of majority and the payor, usually the former husband, receives a motion to enforce or for contempt in the mail or delivery by the sheriff regarding an old child support matter that he or she assumed was long over. One may think initially that the debt is so old it must be past the statute of limitations for enforcement purposes.

    However, the law is well settled that a proceeding for the enforcement of periodic alimony or child support orders is equitable in nature and is not barred by the running of the statute of limitations. The question then is whether laches, the equitable counterpart to the statute of limitations applies to bar the old child support or alimony debt. The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber upon their rights.

    The true test in determining whether to apply laches is whether or not the delay in enforcing the claim has resulted in injury, embarrassment, or disadvantage to any person and particularly to the person against whom relief is sought. The delay required to render the defense of laches available must have been such as practically to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible, as through loss or obscuration of evidence of the transaction in issue; or there must have occurred in the meantime a change in conditions that would render it inequitable to enforce the right asserted.

    Bottom line, it is the rare or unusual case or set of facts in which the doctrine of laches will be a defense to the enforcement of an old child support or alimony order, but Michael Fender has come across a case or two in which the doctrine of laches has been applicable over the past 18 years of practice.

    ______________________________________________________________________________________

    Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to divorce, custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact attorney Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

     
  • Michael Fender 3:46 pm on January 18, 2010 Permalink | Reply
    Tags: 401K’s, alimony, , Apopka, Attorney Michael Fender has been representing spouses for going on 18 years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Casselberry, , division of pensions, equitable distribution of marital assets and debts, Florida area including Maitland, IRA’s and other retirement accounts. Contact his office at 407-629-1886 or visit AttorneyFender.com., Lake Mary, Ocoee, Oviedo, parenting plans, the marital home, time sharing, Winter Garden. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody,   

    Marriage Counseling During Divorce Proceedings 

    What Happens When a Husband and Wife Do Not Agree to a Divorce

    What happens when a husband or wife files for divorce or dissolution of marriage and the other spouse does not want a divorce? Florida law provides that no judgment of dissolution of marriage or divorce shall be granted unless the marriage is irretrievably broken or one of the parties is mentally incapacitated.
    However, Florida law also provides that when there is a minor child of the marriage, or when the responding party denies that the marriage is irretrievably broken, the court may order marriage counseling or continue the proceeding for a period to enable the parties to effect a reconciliation.
    I recently presented a talk on this issue at the Central Florida Family Law American Inn of Court meeting and questioned the approximately 50 lawyers in attendance as to whether any of them had ever requested marriage counseling on behalf of their client. I received an affirmative response from 1 attorney in attendance. I have been practicing family law or divorce law going on 18 years, and I have made 1 request for marriage counseling in that time, which request was ultimately dropped.
    Nonetheless, if you find yourself on the receiving end of a divorce petition and you do not believe that the marriage is over, you should be aware that the judge or court does have the authority to order marriage counseling, even after the divorce petition is filed.
    In a fairly recent Florida appeals court case (Groeger v. Groeger, 2004) which originated in the Ninth Judicial Circuit (Orlando and Kissimmee), the Wife appealed a divorce judgment. The Wife claimed that the trial court should have ordered the parties to attend further marital counseling before entering a final divorce judgment.
    The appeals court found that a motion for marriage counseling is directed to the sound discretion of a trial court. A refusal to order marital counseling is not abuse of discretion simply because one party contests whether a marriage is irretrievably broken. If the evidence demonstrates a marriage is broken beyond repair in one party’s firm view, a trial judge must dissolve the marriage. Although it is commendable to try to effectuate a reconciliation, but like ballroom dancing, it takes two.
    I certainly have represented many husband or wives who have reconciled after the filing of a divorce petition, but forced counseling is rarely a viable option especially when one party is of the firm view that the marriage is irretrievably broken.

     
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