Wedding plans? Don’t forget the legalities.

Wedding plans? Don't forget the legalities..

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How To “Fix” A Prenuptial Agreement

By Robin Roshkind, Esquire, West Palm Beach, Florida

I often get clients coming in to see me holding a faded, years old prenuptial agreement for review.  They have been happily married for some time, but are no longer satisfied with the terms of the prenuptial agreement.  The question I get is how to change it, fix it or make it go away entirely. 

The first task is to ascertain the circumstances surrounding the execution of the prenuptial agreement in the first place.  Was it signed just days or hours before the wedding?  Was it signed under a threat?  Was it signed with full disclosure by the parties?  Did both parties have attorneys advising them or just one?  The ways to challenge a prenuptial agreement include duress, misrepresentation, fraud, over reaching.  If none of these conditions is present, I inform the client that the prenuptial agreement is a valid and enforceable document.

But there is a way to disintegrate it, change it, or fix it.  That would require the drafting of and agreement to a post nuptial agreement.  A post nuptial agreement can replace a prenuptial, with entirely new terms; it can make the prenuptial agreement null and void by agreement of the parties, allowing for operation of law to control as if there never was a prenuptial agreement in the first place; it can modify the prenuptial terms, and it can also reaffirm certain sections of the original prenuptial agreement. 

Post nuptial agreements are handy tools.  The one catch is if the spouse does not wish to agree to any changes.  Should that be the case, you either accept that and stay married, or divorce and challenge the original document, if the facts surrounding the execution and understanding of it are so warranted.  For more information about this or other 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 http://www.familylawwpb.com for more information.

Prenuptial Agreements Protect Children

by Robin Roshkind, Esquire, West Palm  Beach, Florida

No one likes to think someone is marrying them for their money.  Yet it happens all the time.  That is why a prenuptial agreement is such an important document.  Whether you are the “have” or the “have not” of the impending marriage, a prenuptial agreement accomplishes several things:

1.  It deals with your divorce before you get married…one out of two first marriages and 70% of second marriages end in divorce.  Enforceable prenuptial agreements make a divorce less expensive, less stressful and definitely quicker.

2.  It fleshes out the gold digger…if someone is, in fact, marrying you for your money unbeknownst to you, when the prenuptial is not too generous in the early years of the marriage, it will flesh out the gold digger.  They generally don’t like to wait for their “entitlements”.

3.  It protects the birthright of children from a previous marriage…prenuptial agreements address death provisions, and must be accompanied by testamentary documents such as a will or trust.  It provides for the children of the “have” and protects their inheritance from the new husband or wife.

4.  It gives some certainty to both parties.  The obligor knows what the obligation is and the obligee knows what the benefit is.  No legal game playing here.

Granted that prenuptial negotiations can be unromantic and contentious.  But if they cause a rift to the point where the marriage does not take place, consider yourself lucky that you dodged an emotionally and financially expensive bullet.  For more information about this or other family law 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.com.

Cohabitation Agreements Are Like Prenuptial Agreements For Couples Who Choose Not To Marry

by Robin Roshkind, Esquire, West Palm Beach, Florida

With more and more couples living together without marriage, I see the need for a written set of rules to live by, which gives the unmarried parties specific expectations, rights, and obligations.  This document is called a cohabitation agreement, and like a prenuptial agreement, it has specificity and sets boundaries to the relationship.

Cohabitation agreements are valid, enforceable contracts, if executed under proper conditions.  The parties can agree on just about anything, from who pays the mortgage to who pays for airfare and vacations.  It can address the issue of a pet, who owns what artwork, who gets the piano if the relationship ends.  Financial issues and title to personal and real property are usually included. 

Like any contract, cohabitation agreements need to be understood, have disclosure, and freely agreed to without fraud, duress or undue influence and misrepresentation.  Like the prenuptial agreement, cohabitation agreements make living together or breaking apart somewhat easier, because expectations are spelled out.  For more information about this or other types of agreements between couples, call one of the lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

What You Come Into The Marriage With You Leave With

by Robin Roshkind, Esquire, West Palm Beach, Florida

Generally speaking, what you come into the marriage with you leave the marriage with even if it is years later…UNLESS you have “commingled” your assets to make them marital.

What this means is if you had a home prior to the marriage and sold that house and used the net proceeds to purchase a new home during the marriage, you would get your initial downpayment back in divorce court, before any remaining net assets are divided between the parties.  Or another example,  if you owned a BMW prior to the marriage, and then during the marriage traded it in for a newer model, and a divorce is imminent, you would be able to leave the marriage with your newer car.

In thinking about divorce, it is best to try to pay off all the marital debt with marital assets prior to filing for divorce.  It is also a good idea prior to the wedding to take stock of what you are bringing into the marriage and how you can keep your pre marital assets outside of the marital estate.   One really great vehicle to accomplish this is the prenuptial agreement which requires financial disclosure.

For more information about this or other 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.

Prenup Decides Divorce In Advance

By Robin Roshkind, Esquire, West Palm Beach, Florida

In this day, with divorce being so prevalent, it is important to have a prenuptial agreement prior to marriage IF you have high assets or high income and want protection, or IF you have nothing at all and your intended does, and you want protection.

Prenuptial agreements are negotiated over time. You cannot rush a prenup, nor are they inexpensive for lawyers to draft.   They are contracts that control your future.  You want thought, calculation, disclosure, prior to signing one.

In my practice, I like to video tape the signing of a prenuptial agreement at least 30 days in advance of the wedding.  This just gives an extra layer of protection should the prenup be challenged years later.

For more information about this or other 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 http://www.familylawwpb.com.