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You Already Have A Prenup

Congratulations, you are getting married!  You found the person with whom you want to spend the rest of your life, and now you have a big, bright future ahead!  But now the P-word has come up: Prenup.

You and your fiance may be wondering whether to get a prenuptial agreement, also referred to as a premarital agreement.  It may be that one of you has significantly more assets than the other.  Perhaps there is a family business in play.  Maybe you have children from a prior relationship that you want to protect or you have other estate-planning needs.  Or maybe you just want to plan for all possible contingencies.

Prenup

So if you are considering a premarital agreement, there is something you should keep in mind:  You already have a prenup.

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Protecting Your Tampa Bay Business With A Prenuptial Agreement

Under Florida divorce law, businesses are subject to equitable distribution.  This essentially means that it can be considered a marital asset that is divided as part of the resolution of all divorce-related issues.

Small-business owners, who have shed blood, sweat, and tears for their endeavor, find it surprising and frightening that a business might be divided in divorce.  Further, this can be disruptive to the spouse of the small business owner; if the business begins failing due to protracted fighting or litigation, the spouse’s ability to receive alimony or child support is greatly reduced.

Protecting Your Small Business

One way to protect a business from the fallout of divorce is to enter into a prenuptial agreement or, if you are already married, into a postnuptial agreement.

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2016 Collaborative Law Process Act Making Progress in Florida Legislature

Senate Bill 972, the “Collaborative Law Process Act,” is making its way through the Florida Senate and will hopefully become law this summer.

[UPDATE 2: Governor Scott signed the Collaborative Law Process Act on 3/24/16]

[UPDATE: The Collaborative Law Process Act Passed the Florida Legislature on 3/4/16.  Learn more about it in the following Article: Collaborative Law Process Act Protects Families’ Privacy]

The Collaborative Law Process Act creates a legal framework for families to resolve disputes outside of court.  The bill specifies that family law matters under chapters 61 or 742 of the Florida Statutes may be resolved via the collaborative process.  These family law matters include the following:

  • Divorce;
  • Alimony and child support;
  • Marital property and debt distribution;
  • Child custody and visitation (also known as time-sharing and parental responsibility);
  • Parental relocation with a child;
  • Prenuptial and postnuptial agreements; and
  • Paternity.

Families in Tampa Bay, Greater Sarasota, and throughout the state of Florida are already utilizing the collaborative process to resolve divorce and other matters privately and respectfully, but a big improvement with this bill is that there will be a statutory framework to ensure discussions had in the collaborative process can be enforced as confidential.   Read more

Florida Divorce, Financial Affidavits, and Privacy

In almost any Florida family law matter that involves financial issues, such as child support, alimony, division of property and debt, or attorney’s fees, parties are required to exchange and file Florida Family Law Financial Affidavits.  Financial Affidavits outline each party’s source(s) of income, as well as expenses, assets, and liabilities.

And, when they are filed, they become part of the public record, accessible by anyone.

Most people, for any number reasons, do not want their financial profile to become public.  And yet, when people go through the traditional litigated divorce, that’s exactly what happens.

But it does not need to be that way.

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Does Florida Recognize Legal Separation?

Many jurisdictions require spouses to be legally separated for a certain period of time (oftentimes about 6-12 months) before they can get a divorce.

Florida does not have such a requirement.

However, there are many couples out there who wish to go through a “trial separation” without taking the leap of divorce.  Many want an interim step short of divorce to maintain the possibility that the parties can work things out later and reconcile.  Does Florida have any mechanisms to provide protections to spouses and children during a trial separation?

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Drafting an Enforceable Florida Prenuptial Agreement

You probably have heard stories of people who had prenuptial agreements, thought their assets were secure, and yet, at the time of the divorce, had those prenuptial agreements thrown out by a judge for being unfair, overreaching, or being executed without sufficient financial disclosure.

To address the concerns of those who are thinking of getting a prenup, I recently wrote an article for The World of Collaborative Practice Magazine in which I discussed an essential process to utilize if you want an enforceable agreement:

I am seeing more and more clients – especially those who have previously experienced marriage and divorce – come to my office to learn about prenuptial (also known as premarital) agreements. Though they certainly do not go into the marriage planning to divorce, they know the statistics and want a prenuptial agreement to protect them and ensure that they do not get trapped in endless litigation later on.

At the same time, I find fewer and fewer family law attorneys who are willing to draft prenuptial agreements. Lawyers fear that, for whatever reason, the agreement could later be found to be unenforceable. Void prenuptial agreements create, at best, client dissatisfaction with the drafter and, at worst, risk of a malpractice suit.

Nevertheless, the demand for prenuptial agreements is increasing. How does an attorney minimize the risk that the agreement will be invalidated? The answer is close to our hearts, given that the interdisciplinary collaborative family law process is tailor-made for drafting prenuptial agreements.

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Tampa Prenuptial Agreements: Collaborative-Style

Potential clients come into my Tampa office all the time to learn about prenuptial agreements, how they can protect interests, and how they can provide for a more certain future.

For all these clients, I suggest that they utilize the collaborative method when developing a prenuptial agreement with their future spouse.

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Kristen Houghton’s “Happiness May Be A Prenuptial Agreement”

Author Kristen Houghton brings up some interesting points in her article, Happiness May Be A Prenuptial Agreement (from the Huffington Post):

[A] pre-nup isn’t just for royals or the wealthy, anyway. Though much more common in the case of a second marriage (especially if children from a previous one are involved), a prenuptial agreement is not such a bad idea for a “first” marriage either. And you don’t have to be Donald Trump to request a pre-nup. Many young couples are either toying with the idea or have actually seriously talked about it.

The classic pre-nup is a legal contract which operates by ensuring that if a couple divorces, any possessions each had before marrying would remain their own and not be divided as part of the marital pool. You can make a pre-nup very individual, but traditionally, both sides are entitled to 50 percent of any income earned during the marriage period. If one of the partners earned little or nothing throughout the marriage, they’d be allowed to be given a percentage of their partner’s earnings and possibly part of a future pension.

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