Prenup’s or Postnup’s, “What’s Fair”

Normally, when a couple is thinking about marriage, they are thinking about the wedding preparations, the ceremony, place of reception, table cloths, food, etc., but as couples are getting married later in life, more and more couples are thinking as well about prenuptials and sometimes postnuptials.  To start, a prenuptial is a marital agreement that is made prior to the marriage; a postnuptial is a marital agreement that is made after the marriage.  Both agreements basically layout the framework for the worst possible event in a marriage, “Divorce.”  They are basically used as a way to make sure that the assets that you have going into the marriage are the assets you have leaving the marriage.
Florida, like many other states has a theory of equitable distribution when it comes to divorce; the couple’s assets and liabilities (debts) are distributed equally between the parties.  This may or may not seem fair depending on each couple’s situation coming into the marriage.  When one party’s assets are significantly more than the other party, it may be wise to have a prenuptial agreement to protect the asset from equitable distribution if the relationship fizzles out. 
Recently, actors Katie Holmes and Tom Cruise were in the news regarding their divorce and it is alleged that they had a prenuptial agreement that contained monetary payouts at the 5 and 10 year mark.  Although both actors had plenty of money when they were married, we can assume that Tom Cruise had much more money that he wanted to protect and as such a prenuptial agreement was made and was most likely the reason their divorce proceeded so smoothly.  Whether you’re big shots like Tom Cruise and Katie Holmes or just regular folk with some assets to protect, it may be a good idea to invest some of your hard earned money in a prenuptial agreement because if not you will be exposed to losing a big chunk if your marriage goes sour.
The most difficult part of the prenuptial or postnuptial agreement is bringing up the subject to your significant other without the response that says “you are already thinking about divorce when we are about to get married and think I’m a gold digger.” The response should be fairness, it is fair to go into the marriage with each party keeping what they already had going into the marriage and should not lose it just because they were married for a time.  I have worked on prenuptial agreements which are so one sided that it doesn’t matter how long the couple is married, financially it will look like they were never married.  Depending on what side your one, this will not seem fair, normally when one side is significantly better off than the other, you can input milestones where the other party will be entitled to certain benefits as time goes on as in the rumored payouts to Katie Holmes. 
The most important part of any prenuptial agreement is the transparency of the assets and liabilities of each party and that each has full and complete knowledge of what the other is giving up by entering into the agreement.   Any asset left out of the statement could invalidate the entire agreement so be careful not to exclude something unknowingly or knowingly. 
You can include the right to alimony, who leave or stay in the event of the filing of a divorce petition and other things people fight about in a divorce can be taken care of civilly when presumably the relationship is in or leading up to the honeymoon stage.  Recently, I worked on a prenuptial agreement wherein one party wanted language that if there was any suspicion of infidelity, the other would be in agreement to take a lie detector examination and if the outcome was that the person cheated, the prenuptial agreement would no longer be valid.  Although Florida is a no fault state and infidelity generally does not matter for purposes of divorce, the parties wanted this language put in which was perfectly ok.
Whatever you do, try to have the documents prepared with sufficient time prior to the marriage date so that you are not discussing these issues within weeks or days of your marriage which could cause more stress than you need or want at this supposedly glorious time in your life.    

Nebraska court can’t order joint tax return in divorce
updated 6/15/2012
The Nebraska Supreme Court says judges can’t order divorcing couples to file joint federal tax returns.
But the high court said in a ruling released Friday that if one spouse is unreasonably refusing to file a joint tax return, the judge can adjust the way the couple’s assets are divided.
Filing a joint tax return usually results in lower tax liability, but the high court said ordering a couple to file jointly is problematic because one spouse would be exposed to some unknown additional tax liability.
And federal law allows married couples to choose to file separately if they want to.
The Supreme Court ruling overturned a previous order in the divorce of Jennifer Lynn Dalbey and Matthew John Bock. Dalbey had objected to the joint tax returns.

Federal court strikes down key part of federal law banning same-sex marriage

(CNN) — A key part of the law banning federal recognition of same-sex marriage was struck down as unconstitutional by a U.S. appeals court Thursday. The Defense of Marriage Act — known as DOMA — defines marriage for federal purposes as unions exclusively between a man and woman.

At issue is whether the federal government can deny tax, health and pension benefits to same-sex couples in states where they can legally marry. The ruling is a boost for gay rights advocates and the Obama administration, which in a rare move, has refused to defend a federal law in court.  “If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test,” said the three judge panel.

Same-sex marriage an election hot topic

The 1st Circuit U.S. Court of Appeals, based in Boston, did not rule on the federal law’s other key provision: that states that do not allow same-sex marriages cannot be forced to recognize such unions performed in other states. Traditionally, marriages in one jurisdiction are considered valid across the country.
DOMA was enacted in 1996, when Hawaii was considering legalizing same-sex marriage.
Marriage between two males or two females is legal in the District of Columbia and six states — Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York. It is set to become legal in Washington state next week and in Maryland in January, but in each state the implementation could be delayed by opponents placing the question on the November ballot.
Many other states have legalized domestic partnerships and civil unions for such couples, including New Jersey, Illinois, Delaware, Rhode Island and Hawaii, a step designed in most cases to provide the same rights of marriage under state law.
But other states have passed laws or state constitutional amendments banning such marriages.

Pet Custody: Divorcing Couples Fighting Over Pets

Forget fighting like cats and dogs. These days, divorcing spouses are fighting over their cats and dogs.
On Tuesday, News 4 Tucson investigated the rising number of pet custody battles, which attorneys surveyed by the American Academy of Matrimonial Lawyers in 2006 say have increased substantially in the past decade.
Pets are considered property in every state in the country, according to the local news report, so judges often have their hands tied when couples come to them looking to reach custody agreements for their pooch.
“The court really doesn’t have any authority to give somebody rights of access or time with a pet,” Tucson attorney Elisabeth Benavidez said.
Instead, Benavidez said many couples are resolving their pet custody issues outside of court, hammering out civil agreements separate from the main divorce settlement to determine who gets the pets. In a recent case, Benavidez helped one divorced man secure visitation with his Chihuahuas every other day for at least an hour.  Conflict among divorcing pet owners has become so common that many lawyers are suggesting couples with pets sign “pre-pup agreements” in addition to a pre-nuptial agreement, the Daily Mail reported in March 2010.

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Court Rules Lesbian Couple Can File Divorce in Maryland

Washington (CNN) — Maryland’s highest court has ruled that a lesbian couple married out of state can legally file for divorce, even though Maryland’s own same-sex marriage law does not take effect until next year.

The issue is whether states without legalized same-sex marriage can recognize gay or lesbian weddings outside their borders. The appeal involved a Prince George’s County couple, Jessica Port and Virginia Anne Cowan.
“Maryland courts will withhold recognition of a valid foreign marriage only if that marriage is ‘repugnant’ to state public policy. This threshold, a high bar, has not been met yet,” the seven state Court of Appeals justices said in their 21-page opinion. “The present case will be treated no differently. “
The couple were married in a 2008 civil ceremony in San Francisco, during a short window when California recognized same-sex marriage.

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Irreconcilable Claim: Facebook Causes 1 in 5 Divorces

Upon further review, Facebook and marriage aren’t incompatible.
In the past two weeks, the idea that the popular social-networking site plays a role in one in five divorces was reported by many news organizations. This wasn’t the first time that surprising number has surfaced—it has appeared in news reports periodically for the past year and a half.
Some lawyers do say that they see Facebook and other social media playing a role in divorce these days, as people rediscover old flames online or strike up new relationships that lead them to stray from their marriage vows. But lawyers and marriage researchers say there isn’t much evidence to support the notion that social-networking sites actually cause marriages to sputter.


In fact, both the marriage and divorce rate in the U.S. have declined as Internet usage has risen, according to the Centers for Disease Control and Prevention’s National Center for Health Statistics. An annual survey of U.K. matrimonial lawyers by the accounting and consulting firm Grant Thornton has found that during the Facebook era, infidelity’s role as the primary cause of around one-quarter of divorces has been stable. In an email, a Facebook spokesman called the notion that the site leads to divorce “ludicrous.”
Yet the 1-in-5 number has thrived in part because it helps fill a vacuum: There isn’t much reliable research about what does cause divorce. Academic researchers don’t even agree on how to approach the question. Some have searched for predictive demographic factors, such as age and income. Others have studied married couples’ relationships to see which characteristics presage a split. Determining whether a couple is likely to break up, though, is different than identifying the actual cause.
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Should You Remain Living With Your Spouse During The Divorce As Did NFL Great Deion Sanders?

Deion Sanders recently filed for divorce from his estranged wife Pilar Sanders and remained living in the marital home with his wife during the proceedings.  Mrs. Sanders alleged that her husband assaulted her during an April 23rd 2012 scuffle at their home, Deion Sanders defense is planning to have his children who witnessed the scuffle testify in his defense.  Both Mr. and Mrs. Sanders were charged with misdemeanor simple assault after the incident and both are were seeking protective orders against each other.  When asked on the Today show why he remained living at the residence, Mr. Sanders stated that it was his home with his name on the deed and he felt he did not have to be the one to leave.  Mr. Sanders stated in the Today show interview that he planned to call his children who witnessed the incident to testify on his behalf.  On Monday, May 7th, the Texas court ordered his estranged wife to stay at least 500 yards from the Dallas home and gave temporary custody of the couple’s children to Mr. Sanders and ordered that the children undergo psychological counseling.
In Deion’s case, the court has ruled in his favor saving him from possible further embarrassment or loss of employment as a football commentator, but one should be careful when making this decision of remaining in the marital home during the pendency of the divorce proceedings.  For one, the parties should be careful not to add any additional stress on the children who are the innocent party caught up in any divorce.   Mr. Sanders’ children are now being ordered into counseling no doubt as a result of experiencing this traumatic event between their parents and the simple fact of their parents going through a divorce is extremely stressful in and of itself.   Even if you feel that you generally get along with your husband or wife, the proceedings themselves often times make a rather amicable divorce into a heated contest as the parties discuss issues involving assets and liabilities of the marriage.
Often times, clients feel that if they leave the home they will be considered to have abandoned the marriage.  Most states and here in Florida are “no fault” states which preclude any party from having to find cause in order to proceed with a divorce, any party at any time can file for divorce regardless of the reason and moving out does not affect the outcome.  I understand that Husband and Wife sometimes remain together in the marital home due to economic reasons this recession in order to save money or to slowly transition and have their children grow used to the idea that the parents will soon be living apart.  The benefit to having one party move out of the marital residence is it avoids the ability of a party or party’s claiming physical abuse or assault as was the case with Deion Sanders.  Further it avoids heated altercations happening in front of the children or just making the relationship worse.  Whatever you choose, make your decision based on the facts, effects on the children and the cause of the divorce, if you grew apart and the divorce is truly amicable, you may want to risk living together through the divorce but if for instance one of the parties was cheating, its most likely that the divorce will be filled with heated emotion and the parties would benefit from living apart. 
If you have any questions, please feel free to contact us our website at  Nothing contained in this blog is to be relied upon as legal advice and some of the information was gathered from other news sources which may or may not have been accurate.  We will correct any information which is determined to be inaccurate.

Baby Boomer Divorce Rate Increasing

Although divorce rates are decreasing across the nation, an interesting trend is emerging: divorce rates among baby boomers are on the rise. This group alone, composed of individuals ranging in age from their late forties to late sixties, is now responsible for one in four divorces.
This rate continues to grow, and women claim to initiate over 66 percent of these divorces, according to a survey conducted by AARP.
What is fueling the increase? Experts speculate this empowered generation of women famous for shattering social mores in the past is prepared to do it again, all in the pursuit of happiness.
Factors Contributing to Divorce Among Boomer Women
Researchers found traditional moral taboos against divorce no longer held troubled marriages together; instead children were serving as the glue. Once baby boomer women become empty nesters, they often take a step back and reevaluate their marriages.
An increasing rate of these boomer women are not happy with what they see. They often have careers and feel financially secure enough to walk away from an unsatisfying relationship.

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