Tagged: Prenuptial Agreement RSS

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

    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 6:12 pm on January 24, 2010 Permalink | Reply
    Tags: , , , Prenuptial Agreement   

    Prenuptial Agreements 

    What is a prenuptial agreement?
    A prenuptial agreement is a contract entered into by two people who are to be married. The purpose of a Prenuptial Agreement is to set forth certain rights for each party in the event of a divorce. Sometimes provisions for property distribution upon death are included, but such provisions are better placed in a Last Will and Testament.

    Why do people get prenuptial agreements?
    The most common reason for a Prenuptial Agreement is to protect property that one or both parties owned before the marriage from becoming divided upon divorce.

    What is an “antenuptial agreement” or a “premarital agreement”?
    These are all synonyms for a Prenuptial Agreement. They all refer to the same concept, the same type of document.

    Can I sign a prenuptial or post-nuptial agreement after I get married?
    Yes. It would be called a “Post-Nuptial Agreement” and Florida law does currently recognize such documents.

    Does everyone getting married need a Prenuptial Agreement?
    Prenuptial agreements are not for everyone. Prenuptial Agreements are generally utilized by parties who have considerable assets prior to the marriage and want to keep those assets separate or those who have been through a divorce and want to minimize the cost and time if they unfortunately go through another divorce. Without a prenuptial agreement, it is possible in certain circumstances for separate or premarital property to lose its separate quality and it can then become marital property or can be used to pay alimony.

    Can a Prenuptial Agreement cover alimony?
    Sometimes, Prenuptial Agreements are used to limit, establish or eliminate alimony in the event of a divorce.

    Can a Prenuptial Agreement affect child custody or child support?
    Generally speaking, Prenuptial Agreements do not deal with child custody or child support. Judges make the final decision on custody, and parties cannot pre-determine child support because the law regards child support as being a right for a child, and parties cannot override that right. Custody also must be determined AT THE TIME OF THE DISPUTE since no one can predict all the circumstances which will exist at the time of a custody dispute.

    I already have a house and property and I want to protect it. Will a Prenuptial Agreement help?
    Yes. If you own property before the marriage and you want to protect that property in the event of divorce, a well drafted and enforceable Prenuptial Agreement can make it easier for you to keep that property in the event of a divorce.

    Do I need my own lawyer if my fiancé’s attorney prepared a Prenuptial Agreement?
    Yes. It is important to have your own counsel explain fully the proposed Agreement and the potential pitfalls that could affect you in the event of a divorce. Your attorney can suggest changes to the proposed Agreement that can dramatically affect to your benefit what happens in the event of a divorce.

    Does my fiancé need their own lawyer if my attorney prepares a Prenuptial Agreement?
    Yes. Not only does it make it more fair (each side has independent advice), it also makes it more enforceable since neither can later argue that they did not understand what they were signing.

    Even if my spouse and I have a Prenuptial Agreement, can we change the terms later?
    Yes. You can “re-up the Prenup” by having your attorney prepare an addendum to the original Agreement. After that has been properly signed and witnessed, it becomes a part of the original Agreement and will reflect the new terms you have changed.

    What if my spouse and I decide, after years of marriage, that we no longer want to have the Prenuptial Agreement in effect?
    Most well-written Prenuptial Agreements will contain a provision that dictates exactly how to cancel the Prenuptial Agreement so that it is no longer in effect. Further, your attorney can build in “sunset” provisions to the original Prenuptial Agreement that provide for its automatic cancellation after an agreed-upon amount of years.

    Will a Prenuptial Agreement determine how my spouse’s property is distributed after his/her death?
    Not unless you insist on such a provision. It is strongly recommended that you each have a Last Will and Testament to cover what happens to property upon the death of a spouse. Generally, a good Prenuptial Agreement will contain language that says that either of you are free to give or will away any property you want to the other party.

    Are Prenuptial Agreements expensive?
    As is in most cases, the cost is based on how long it takes your attorney to prepare the Agreement. Prenuptial Agreements take a lot of time to prepare since they are an attempt to resolve disputes which have not yet occurred and which are based upon factors which do not yet exist (changes in income, assets, the birth of children, etc.) In some limited cases, Prenuptial Agreements can be prepared on a “flat fee” basis. See your attorney for more complete fee and cost information.

    ____________________________________________________________________________________

    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. Contact his office at 407-629-1886 or visit Attorney Fender’s website.

     
c
compose new post
j
next post/next comment
k
previous post/previous comment
r
reply
e
edit
o
show/hide comments
t
go to top
l
go to login
h
show/hide help
esc
cancel