Challenging a Pre Nuptial Agreement

By Robin Roshkind, Esquire, West Palm Beach, Florida

You have been married for years and you thought everything was fine.  But suddenly, you find your spouse exiting the marriage and the prenuptial agreement that you thought was fully valid and enforceable is now being challenged.  What’s up with that? 

Prenuptial agreements are contracts.  Depending upon the circumstances under which they are drafted and executed, can make them null and void, if ever challenged.  Doesn’t sound right, but here is what makes a prenuptial challengable:

Signing it too close to the wedding day.   If the prenup was signed just a few days prior to the wedding, for example, the legal reason to challenge it is duress.  The invitations are sent, the hall is taken, the band and photog are retained and the dress is ready.  Now for the prenup…sign it or else…No.  

Another reason prenuptial agreements can be challenged is for fraud.  A bride or groom as the case may be cannot waive their marital rights if the disclosure is fraudulent by either party.  Essentially they do not know what they are waiving their rights to.  

A third reason to challenge a prenuptial agreement is over reaching.  If a spouse is totally disowned from all marital property, this is egregious.   

Another reason to challenge a prenuptial agreement is if there was misrepresentation.  For example, if a woman promises to have children, or promises to live in the USA, but knows full well she is unable to, this is misrepresentation of who she is. 

Intent of the parties is evidenciary, but there would have to be proof by witnesses or testimony of the party to show the intent of the parties.  It is very hard to prove. 

So if you are signing a prenuptial agreement, there are certain things you can do to protect yourself.  For more information about this or other topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb for more information.

Are we heterosexual?

By Robin Roshkind, Esquire, West Palm Beach, Florida

Like the debate on whether or not we humans are meant to be monagamous, there is ongoing expert commentary on whether or not we humans are meant to be heterosexual.  But what happens when we are not?  What does the law in the state of Florida say about that? 

To some extent, Florida recognizes committed same sex domestic partnerships.  But this comes under contract law not family law.  What that means is that same sex committed couples can outline their relationship in terms of rights and obligations of each party in a co habitation agreement.  This agreement, if done properly, will be upheld or enforced in a court of law in this state if necessary.

Men and women of same sex orientation often find themselves in long term traditional heterosexual marriages.  Often if they get “caught” by the spouse, a divorce action and/or custody battle ensues.  Sexual orientation is used against that spouse in parenting allegations.  The law does not support that UNLESS the best interests of the child is at stake or there is some detriment to the child.   Those of same sex pursuasions can be perfectly good parents, and courts here recognize that. 

However, if you are in a traditional marriage and find your spouse to be something other than you thought, you have two choices:  either look the other way and make the marriage work, or file for divorce.  Keep in mind that you should be sensitive to your children’s needs. 

Where two homosexual partners decide to call the relationship over, again the case will proceed under contract law.  If there is a home that was purchased together, or some other financial arrangements or living arrangements were agreed to, with the break up of the relationship, the issues will be decided under Florida contract law.   If children are involved in a same sex relationship, the natural parent will prevail if it is in the best interests of the child. 

For more information about this or other topics of interest, please call one of the lawyers at ROBIN ROSHKIND, P.A. at 561-835-9091 or click on the Firm’sweb site at www.familylawwpb.com.