Challenging a Pre Nuptial Agreement

Challenging a Pre Nuptial Agreement.

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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.

Liars, and Cheaters and Fraud…Oh My!

by Robin Roshkind, Esquire, West Palm Beach, Florida

I once heard a divorce court judge address a courtroom full of lawyers, husbands and wives, court reporters and spectators, and what he said will never leave my memory…he said something to the effect that, this is divorce court.. everyone is lying.

Appraisers can place valuations of heirlooms to real estate to benefit the party who hires them…accountants can make the numbers say anything they want to…lawyers can interpret statutes and case law from their ownone sided  perspectives…financial affidavits of husbands and wives generally and regretably leave something off the asset column.  One can conclude divorce court is not an exact science.

So how do you reconcile the difficulties of litigation?  The first and best answer is to stay out of court.  At least in settlement talks the parties can determine their own destinies, like it or not.  The next best step is zealous advocacy.  Hire professionals who really on are your side and are dedicated to doing the best job possible for you.  This includes the accountant, the lawyer, the appraiser, the shrink, and private eye and anyone else you need to rely upon for zealous advocacy.

Lastly, you must not have personality conflicts involved in your case.  If you are not comfortable with your “team” do something about it before it is too late.  You can always change attorneys, CPAs, shrinks, etc.

For more information about this or other hot divorce 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 www.familylawwpb.com for more information.

Pre Nuptial Agreements and Divorce…Do They Stick?

By Robin Roshkind, Esquire, West Palm Beach, Florida

I get this question all the time in my practice…is my prenuptial agreement enforceable, now that I wish to divorce?  The answer is it depends upon the circumstances in which it was agreed upon.

The initial test is how long before the wedding was the prenuptial agreement negotiated and executed?  If was less than 30 days, there could be a duress claim.

Did both parties have representation by lawyers?  If one party had a lawyer and the other didn’t, there could be an over reaching claim.

Was there truthful and full disclosure of finances on behalf of both parties?  You need to know what rights you are waiving when you waive rights via a prenuptial agreement.  Also, full disclosure avoids a claim of fraud.

Did the parties read, understand and agree to what they were signing with full knowledge and intent to be bound?  Everyone should read and understand what they are agreeing to.

Is there any language barrier?  This goes to the last point of reading and understanding the prenuptial agreement.

If there is any doubt about the above points, a prenuptial agreement can be challenged and perhaps voided.

Prenuptial agreements control what happens to your future.  They are expensive to prepare and sometimes require the expertise of tax advisors and estate planning counsel as well as divorce counsel.  For more information call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at www.familylawwpb.com for more information.

Criminal Law, Tort Law Sometimes Overlap With Divorce Law

By Robin Roshkind, Esquire, West Palm Beach, Florida

In my divorce cases, it is not uncommon to have to deal with additional issues other than those directly effected by divorce law.  Divorce law encompasses alimony, child support, child time sharing, shared parental responsibility, division of marital assets and debts, and what is income of the parties, and what is non marital.

However, some of my cases get complicated with things like DUI defense, traffic tickets, domestic violence, damaged or stolen property of one spouse or another, and spousal torts.

I have had several cases where a spouse who is cheating brings home to the “innocent” spouse a sexually transmitted disease.  Or an innocent spouse signs a joint tax return and the IRS finds it to be fraudulent.  Or legal situations resulting from general stress of a bad marriage and divorce, such as drunkeness, drug use, dissipation of assets exits.

Divorce cases can emcompass stealing of jewelry, destruction of personal property, criminal stalking, wrongful taping of conversations, fraud and misrepresentation.  When you think of two people who are going at each other in anger, almost anything can happen, even rape or murder.  If you are thinking about getting divorced in Palm Beach County, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 for more information or click on the Firm’s web site at www.familylawwpb.com for more information.

Divorce and the Prenuptial Agreement

By Robin Roshkind, Esquire, West Palm Beach, Florida

No one goes into a marriage thinking it will end in divorce.  However, where there are substantial assets to protect and perhaps a family from another relationship, a prenuptial agreement anticipates a divorce and prepares the parties for it prior to the marriage.

I have a client who married after living with a woman for three years.  The marriage lasted two.  He came to me and wanted to file for divorce.  The first question I asked was is his wife going to contest the prenup.  He indicated that she was not, and so the divorce would be fairly simple.

Guess what?  He was wrong.  The wife was an immigrant who did not read English very well.  She claimed in her divorce petition that she did not understand what she was signing when she signed the prenup.  They are still in litigation over this. 

I did not prepare the prenuptial agreement but if I had, I would have videotaped the signing of it, making it much more difficult for the wife to play this game. 

The point of this story is that anyone can contest or challenge a prenuptial agreement in a divorce case.  The question is whether or not the challenger will prevail.  The burden of proof requires fraud, over reaching, duress, misrepresentation, shame marriage. 

For more information, or if you are planning a marriage or a divorce in Palm Beach County, Florida call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561-835-9091 or click on the Firm’s web site at www.familylawwpb.com for more information.

What’s In A Name???

By Robin Roshkind, Esquire, West Palm Beach, Florida

What is in a name?  Oftentimes clients ask me if they should change their names in the divorce proceedings.  Again the answer is IT DEPENDS…on what?

If your husband is famous, he may insist you drop his name.  This happens with husbands who are captains of industry, celebrities, local politicians, public figures.  If they are going to remarry, or they simply want to be the community’s newest bachelor, husbands may require/request a wife to change her name.  This may be insulting, but the good news is there is money to be made here.  A husband cannot force a wife to change her name.  If he insists, he has to pay the price.

Another situation is where there are minor children…a wife may NOT want to change her name because it is the same last name as the children’s.   In cases where you simply do not like the name, now is the chance to change it.  You can have your former name restored.  If you do not do this as part of the divorce, it will cost you later.  In Palm Beach County, you will have to file a new case, a petition for name change, and the burden of proof is higher…you will have to testify that  your name change is not for the purpose of defrauding creditors, committing fraud or other unlawful purpose. 

For more information about this or other divorce topics, call on 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.com.