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+

Divorce, Annulment and Separation in Florida

Florida is known for being one of the states with the highest divorce rates. The decision to divorce your spouse should be given much thought and consideration, and it is important to be familiar with Florida law regarding divorce and whether there are any other available options. It’s quite possible you will have a lot of questions that consider the possible grounds for divorce, whether or not you can get your marriage annulled, and even the specifics of a legal separation if you are not fully ready for a divorce. It is important to understand the difference between divorce, annulment and separation in Florida.

Divorce

According to Florida Statute, there are only two grounds for a divorce: the marriage is irretrievably broken or one of the parties is deemed mentally incapacitated. A judgment of dissolution of marriage cannot be granted on any other basis.

An irretrievably broken marriage exists is when you and your spouse agree that the marriage is broken and there is no possible way of fixing the marriage. If there are no minor children and the spouses do not deny the marriage is irretrievably broken, the court will enter a judgment for dissolution. The process is different if there is a minor child born in the marriage and/or the spouses deny the marriage to be irretrievably broken.  Under either circumstance, the court can do any of the following:

-          Order the spouses consult with a marriage counselor, psychologist, etc;

-          Provide a length of time, not to exceed 3 months, to allow the spouses to reconcile; or

-          Take any other action that may be in the best interest of the parties.

Keep in mind that the court has the discretion to deny the request to dissolve the marriage if the court does not find the marriage is irretrievably broken; however, it is very rare that a divorce will not be granted even if there are children or the other party does not agree to it.  The court in most cases will accept one party’s claim that the marriage is irretrievably broken.

Mental incapacity is the second grounds for divorce, but there is a very important accompanying limitation. A dissolution of a marriage will not be granted unless the alleged mentally incapacitated spouse has been adjudged as incapacitated for the prior three years. 

Annulment

An annulment is an order to terminate a marriage because the marriage is void. Unlike a marriage where the request to dissolve is not based on the validity of the union, an annulment questions whether the marriage was every valid to begin with. Florida case law provides that a marriage can be annulled when a person was under the qualifying age. If parental consent is never obtained, then that is grounds for annulment. Also, a marriage can be annulled for mental incapacitation or if one or both of the parties were under the influence, and thereby unable to provide valid consent. Physical inability to consummate the marriage or consent of marriage through fraud or deception is grounds for annulment, as well. Many parties seek a divorce over an annulment because Florida statutes specifically provide a step-by-step procedure for divorce. And since annulments are governed by common law court rulings, it can be difficult to establish the burden of proof and adhere to the court proceedings.

Separation

Unlike other states, Florida does not allow spouses to file for legal separation, which is an arrangement between the spouses to remain married but live apart. However, there are ways a person can achieve a similar result while utilizing a different avenue.

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

Til Death Do Us Part, Whether We Like It Or Not: Same Sex Divorce in Florida

In March, a Tampa-area couple made headlines when they filed for a divorce. What made their divorce so special? Their gender. The couple, both women, had been married in Massachusetts years before. When they decided to end their union, they thought nothing of filing their divorce action in the state where they lived. But the judge–and the state of Florida–had other plans.

Same-Sex Marriage in Florida

           

In 2008, Florida voters passed an amendment to the state constitution that defined marriage as being between a man and a woman. State law also holds that marriages between same-sex couples that were entered into in other jurisdictions are invalid in Florida.

           

These laws have frequently been challenged. In mid-July 2014, a judge in Monroe County struck down the 2008 ban and stated that same-sex couples should be allowed to marry. Just one week later, a judge in Miami made a similar ruling, holding that the ban was discriminatory and violated same-sex couples’ right to equal protection under the law. Both decisions have been appealed by the state Attorney General, Pamela Bondi.

Same-Sex Divorce in Florida

While those seeking to marry have made gains, those looking to leave their marriages have a long way to go. Several Florida courts have granted divorces to same-sex couples, but Laurel Lee, the judge in the Tampa case, refused to do so. In Lee’s view, because the state did not recognize the couple’s marriage, the court had no authority to end the union.

           

This ruling has serious implications. Generally, couples are required to divorce in the state and county that has jurisdiction over them. Jurisdiction is typically established by residence, or how long a person has lived in a particular state. This means that if Florida refuses to allow same-sex couples to divorce, they have two unsatisfactory options. First, one or both partners may choose to go to a state that recognizes their marriage and establish residency. Obviously, this is problematic­; it’s rare that a spouse would have the ability (let alone the willingness) to uproot their lives and move to another state for a number of months before they can even consider filing for a divorce. Second, the couple can choose to “self separate” and live as though they are divorced. Because Florida does not recognize same-sex marriages, agreements on child custody and alimony cannot be enforced. Furthermore, because the couple was never actually divorced, they can never remarry. Thus, many couples are being forced to spend their lives together–even if they don’t want to.

           

The Tampa couple is gearing up for a fight. Their attorneys claim that Florida laws prohibit same-sex marriage, not same-sex divorce. The Florida Bar Family Law Section is jumping into the ring as well, arguing that the couple is being "denied equal access to the courts."

Contact a Tampa Bay Divorce Attorney

           

For now, same-sex marriage and divorce are in a state of flux in Florida. It’s unclear how long the Attorney General’s appeals will take, and it’s uncertain of what will happen next. In such an unsettled atmosphere, it’s crucial that those considering a divorce get all the help they can. If you have questions about same-sex divorce, 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