The Role of Prenuptial Agreements in Divorce

When couples begin conversations about getting married and starting a future together, they are understandably reluctant to consider what could happen if the relationship does not last. At the outset of any happy time it is difficult to think about possible negative futures, but unfortunately not all marriages survive, and thinking about the financial ramifications of a divorce should lead many couples to explore the benefits of a prenuptial agreement. Prenuptial agreements are contracts executed before a couple marries that outline how property will be divided if they later divorce. The divorce of celebrity couple Brad Pitt and Angelina Jolie is the situation most people envision in which a prenuptial agreement has value. Thus, many couples believe, especially if they are young, that prenuptial agreements are unnecessary because they own very little of value, but it is hard to predict what a person’s financial situation will be in twenty or thirty years, and substantial assets could accumulate during the life of the marriage. In addition, if person is entering a second or third marriage, he/she will likely possess sizeable property and/or have concerns about protecting property for children from an earlier marriage. In either case, a prenuptial agreement would address these issues.

Creating a Prenuptial Agreement

The most important thing to realize about prenuptial agreements is that they must be created before the marriage occurs, and are only effective if the marriage takes place. As such, if a couple drafts an agreement, but later decides to skip marriage in favor of living together, the contract has no force as a prenuptial agreement if the couple later breaks up. The legal formalities for prenuptial agreements are simple: it must be written, and signed by both parties. Any changes to the content or decisions to revoke a prenuptial agreement must be writing and signed by both parties as well. Putting together the bare bones of an agreement is relatively easy, but figuring out which terms are permissible and make sense for each person’s unique situation requires more work.

What Can the Contract Say?

Florida law limits the content of prenuptial agreements to the division of a party’s financial assets, real and personal, tangible and intangible, and specifically delineates what the agreement may address. The permissible terms of a prenuptial agreement include:

• the rights of each party over property acquired at any time or under any circumstances;
• the right of either party to buy, sell, transfer, manage, or control property;
• what happens to property upon divorce or the occurrence of another event;
• whether and how spousal support will be paid;
• who retains ownership rights in death benefits paid under a life insurance policy; and
• the need to create a will, trust, or other estate planning arrangement to carry out the terms of the prenuptial agreement.

Note that prenuptial agreements cannot reduce or eliminate a party’s right to pay or receive child support, and if the elimination or modification of spousal support would cause a party to qualify for government assistance, a court has the authority to order spousal support notwithstanding the terms of the prenuptial agreement.

Get Legal Advice

The complexity of a prenuptial agreement is entirely dependent on the wishes of the parties and types of property they own, so do not assume a highly technical agreement is needed in every situation. However, protecting carefully accumulated assets is always in your best interest, and an experienced family law attorney can help you accomplish that interest. The Tampa Bay law firm All Family Group, P.A. is well versed in all areas of marital and divorce law, and is ready to help you with all your legal needs.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Deciding Which Kind of Divorce Is Right for You

Any couple together long enough will go through difficult patches of time where one is out of sync with the other, and many discussions end in argument. Most of the time, moving past the rough period intact is possible. However, sometimes the problems are deeper than surface disagreements, making it impossible to stay together. At this point, which is different for everyone, divorce enters the picture, and spouses must begin the process of unraveling their lives. While this process is often painful and demanding, spouses sometimes find their relationship as exes is better than when married. Once the decision is made to dissolve the marriage, the next step is to determine what type of divorce is appropriate. All divorces legally end a marriage, but not all divorce cases are processed in the same manner. A recent article discussed the divorce of the mayor of Cape Coral from her husband after less than three months of marriage, and noted that the couple filed a simplified divorce petition. Simplified divorce is one option for couples seeking to end a marriage, but is often unavailable to most divorce petitioners for reasons that will be discussed below. Selecting the correct type of divorce petition is a crucial aspect of court procedure. If the wrong one is filed, the case will be dismissed and will require a re-filing of the appropriate type, along with additional time and money utilized by both parties.

Simplified Dissolution

Simplified divorce is a faster and less expensive divorce process for those couples with no issues to resolve. Both parties must be in agreement on all of the following points, and jointly sign the petition for divorce. All of the following must be true in order to qualify for simplified divorce:

• both spouses agree the marriage is irretrievably broken;
• the parties do not share minor or dependent children, nor is there a pregnancy;
• the parties agree on the division of all their assets and liabilities;
• neither party is asking for alimony;
• at least one spouse has resided in Florida for the previous six months; and
• both parties are willing to jointly attend the final hearing before the judge.

One important right this simplified process takes away is the right to examine the other spouse through the collection of information before trial or as a witness during trial. This happens because simplified dissolution requires both parties to waive the right to a trial and appeal. This limitation on information is further expanded to the disclosure of financial information. While both parties are required to submit a financial affidavit, any further requests for financial information are not always enforceable.

Regular Dissolution

If a couple does not meet the criteria for a simplified divorce or declines to consent to the waiver of rights, a regular divorce petition is the option left to them. Regular divorce cases begin when one party files a petition for divorce. In addition to requesting a divorce, the petition includes any other demands a party may have, like specific property division terms, alimony, child support, or parenting time.  Where it goes from here depends on whether the divorce case is contested or uncontested.

The other spouse always has 20 days to respond after the receiving divorce petition, and if the response agrees with the demands of the petition, making the case uncontested, the parties can ask for a final hearing date to conclude the matter once the required financial disclosure is complete. If, however, the other party files a counter-petition disputing the demands listed in the petition or makes new demands, a Notice for Trial must be filed, as this case is contested. A contested divorce is like any other lawsuit where the parties exchange information and present arguments to the judge through filing additional documents or attending live hearings. This is a lengthier process, but may be necessary if the parties cannot agree, or have another type challenge preventing resolution of the case.

Get Help

Regardless of the kind of divorce petition you file, you are permitted to retain legal counsel to represent your interests. In divorce cases, where the outcome has significant and long-lasting effects on a person’s daily life, it is important to work with a divorce or family law attorney to ensure you do not unnecessarily give up your rights and fully understand the legal consequences of your decision. The Tampa Bay law firm, All Family Law Group, P.A., will evaluate the unique facts of your case and guide you through the divorce process to its end.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Can You Undo a Divorce Decree?

Deciding to get divorced usually comes after much deliberation and numerous attempts to save the marriage. Once the decision is made, however, the parties are typically firm in their position that the marriage cannot continue. Nevertheless, there are instances where a couple later determines they want to attempt reconciliation instead of divorce. While this situation is good for the spouses personally, legally there could be difficulty depending on far the divorce case has proceeded through the court system. If a default judgment or final divorce decree was issued, courts are reluctant to undo such decisions because the stability of the legal system rests in part on the finality of court actions. In addition, the legal complexity of reintegrating all of the matters a divorce separates makes it virtually impossible to really undo a divorce decree. Consequently, if the divorce case has reached an endpoint, courts will only overturn an order in limited circumstances. If, however, the case is earlier in the process, stopping divorce proceedings is easier and generally brings fewer consequences. Certainly such requests are the exception in most divorce cases, but understanding the procedure to cancel a divorce decree will illustrate the seriousness of seeking divorce.

Dismissal of Pending Divorce Case

If a divorce case is still pending and no final orders have issued from the court, it is relatively simple to withdraw the petition. All that is necessary is for one party to file a voluntary motion for dismissal requesting the court to stop the case at the present point and discontinue further proceedings. If the other party filed counterclaims earlier in the case, it may be necessary that he/she also file a motion to dismiss. Note that if the court entered interim orders for child support or alimony, these benefits would go away. Thus, it is important for parties to assess what they would lose by ending a divorce petition.

Vacating Default and Final Judgments

When a court issues a final judgment in a case, it means the judge has considered and decided all pending matters before the court. The verdict is released in a written decision that can be used to enforce the terms of the court’s judgment. While most people associate final judgments with the end of a case after both parties present their arguments, it can come earlier in the form of a default judgment. When a legal petition is filed with a court, all named parties must respond to the demands or allegations made against them. If any party fails to respond, the court can enter a default judgment against him/her that grants all of the demands of the opposition. This is a severe result, so it is crucial to respond to every court document received in a legal case.

Overturning a final judgment is a complicated process, and a court will only consider it if one of the following circumstances exist:

• mistake, unintentional or excusable neglect, or surprise;
• newly discovered evidence that was not available or discoverable during the pendency of the case; or
• fraud, misrepresentation, or other bad conduct by a party.

None of the grounds for vacating a final judgment is easy to show, but in the event a decent argument can be made, the knowledge of an experienced divorce attorney is needed to evaluate the facts of the case in order to give such a request the best chance of succeeding. Also, it is important to mention that a party can use these grounds as basis to reopen a divorce case and argue it needs to be reconsidered or modified.

Talk to a Divorce Lawyer

If you have questions or concerns about the final judgment issued in your divorce case, talk to a divorce attorney to learn what your legal options are. The All Family Law Group, P.A., located in the Tampa Bay area, handles all aspects of divorce and family law cases, including post-judgment appeals and petitions.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Proposed Alimony Revision Legislation in Florida

Florida legislation currently creates a presumption of permanent alimony for long-term marriages, while simultaneously creating a presumption against permanent alimony in short-term marriages. This legislation has drawn the attention of numerous family law attorneys, legislators, and members of the public.  In the summer of the 2013, the Florida legislature attempted to revise the current alimony laws but with no success – the bill did not become law. The proposed changes are likely to be heard again during the next legislative session.

Permanent Alimony

Permanent alimony is exactly what it sounds like: upon dissolution of a marriage, one spouse pays alimony to the other spouse for the rest of their natural life, or until the other spouse dies – whichever comes first. Permanent alimony also terminates when the receiving spouse remarries, but many opt for cohabiting with a new lover, rather than re-marrying, so they can continue to receive payments. A paying spouse can seek an award modification or termination if able to present evidence of a substantial change in their circumstances.

Current Alimony Law

Title VI, Chapter 61, Section 8 of the current Florida Statute provides that permanent alimony may be awarded for the needs and necessities of life as they were established during the marriage of the parties. In Florida, the award of alimony is dependent upon the duration of the marriage. A marriage of less than 7 years is considered short-term, a duration of 7-17 years is considered medium-term, and a marriage that lasts 17 years or more is considered long-term. Florida law provides that permanent alimony is presumed in long-term marriages, but not in short-term marriages. The court can also award durational (rather than permanent) alimony that can last up to the length of the marriage.

Proposed Alimony Law

The proposed law changes the duration of marriage requirement. For example, the proposed law request the following changes regarding duration of marriage: A short-term marriage would be considered less than 11 years, medium-term would be 11-20 years, while a long-term marriage would be over 20 years. Furthermore, the proposed law would create a rebuttable presumption against any form of alimony in short-term marriages, so this means that there can be alimony awarded in a short term marriage; however, the spouse in need of the alimony would have to prove a need and that the other spouse has the ability to pay it. There would continue to be a presumption in favor of a form of alimony in long-term marriages; however, and most notably, permanent alimony would be completely eliminated. This means that in a long-term marriage the spouse from whom alimony is requested would have to prove that he or she does not have the ability to pay alimony or that the other spouse does not have the need for the alimony. 

There is no presumption in favor of alimony for either party in a medium-term marriage. Rather the court has the discretion to determine and award a monthly alimony amount, but the award cannot exceed 30% of the spouse's gross income -- a new guideline incorporated in the proposed law (see below). The proposed law allows for an award of durational alimony with limitations. Durational alimony could be awarded up to half the duration of the marriage. Under exceptional circumstances, the court would have discretion to award more alimony, but most cases will fall under the parameters of the proposed law, so ideally this court discretion would be used at a minimum.

Proposed Law and Alimony Guidelines

Currently, the Florida Statute does not have strict guidelines pertaining to the amount and payment of alimony, compared to how it handles child support. The proposals then present the following limitation on the amount of alimony payments as it relates to the paying spouse: no more than 25% of the gross income for short-term marriages, no more than 35% of the gross income for medium-term marriages, and no more than 38% of the gross income for long-term marriages.

Get Help

Partner with a Tampa Bay divorce attorney at All Family Law Group, P.A. to get effective solutions to your family law issues. Call us to discuss your situation at 813-672-1900 or contact us online.for an initial consultation at no charge.

 By Lynette Silon-Laguna Google

Later in Life Divorce & Finances

America’s divorce rate might be on the decline for most age groups, but amongst one group it’s hitting record highs. Who’s behind the spike? Baby boomers. The divorce rate for the over-50 crowd has more than tripled in the past 20 years, and the trend shows little chance of slowing. With Americans living longer and looking for more from their marriages, many are choosing to jettison an unloved spouse rather than spend their golden years with someone they no longer care for.

Unfortunately, many boomers are divorcing first and thinking later. Adjusting to life after a divorce is difficult under the best of circumstances, but divorce after 50 can have serious financial repercussions. Boomers need to understand the risks of late-in-life divorce, and take steps to prepare themselves before they file.

Financial Repercussions of Divorce

First, boomers need to consider their retirement. Have you and your spouse been saving money? Investing in a retirement plan? Whatever money you saved will now have to fund two separate retirements, which means that it likely won’t go as far. At best, this could mean that a person has to adjust their lifestyle and expectations; at worst, it could mean that a person would have to work much longer than anticipated.

Second, health care costs will likely rise. Health spending tends to increase as a person ages, but married couples are often able to defray some of these costs by caring for each other rather than hiring a nurse or a caregiver. Divorcing boomers need to consider who will care for them–and how much it will cost–before they experience a major health event.

Third, though some divorcees may anticipate short-term financial losses, older couples need to consider the long-term as well. If a person in their 30s goes through a divorce, they have decades to continue working, to make up any losses, and to prepare for their retirement. If a person in their late 60s chooses to divorce, they’ll have far less time to recuperate.

Finally, consider the difference between a “fair” division of marital property and an “equitable” one. While it might seem “fair” to split everything 50/50, it might be more “equitable” for a spouse who forewent their career to care for a family to take a greater share of the marital estate. Also consider which assets are easy to liquidate, should the need arise, and which assets might take longer to sell.

How to Prepare for Later in Life Divorce

The most important thing you can do before a divorce is initiated is to make sure that you have a handle on your finances. Do you know where your money is, and how to access it? Are your bills paid? Do your credit cards have a low balance? Does it seem like there should be more money in your joint account than actually is there? Find out now, if you don’t know.

Contact a Tampa Bay Divorce Attorney

If you are considering a divorce and are concerned about the effect it could have on your finances, contact our Experienced  Attorneys & Counselors at Law since 1997 Serving all of Tampa Bay. Call 813-672-1900 now for a free initial consultation www.familymaritallaw.com.

 By Lynette Silon-Laguna Google