Could prenuptial agreements actually prevent divorce?

While preparing to wed, many Florida couples are hesitant to broach the subject of a prenuptial agreement with their soon-to-be spouse. Some feel that discussing the breakdown of marital wealth in the event of a divorce is in poor taste during preparations for the beginning of the marriage. Others are simply unaware of the benefits that prenuptial agreements provide and fail to examine whether a prenup would be a good fit for their needs. Occasionally, a celebrity couple will present a powerful lesson in the importance of having a prenup, as in the case of Megan Fox and her husband Brian Austin Green.

Fox and Green have been married for 11 years and have two children together. The couple filed for divorce in 2015 but have remained close in their roles as co-parents. With the recent announcement of Fox’s third pregnancy, it appears that they couple were closer than most divorcing spouses during the timeframe since the divorce papers were filed. In recent announcements, it appears that the couple are still together and may be working out their differences as they prepare for the birth of their third child.

Because the couple separated last fall, any income earned by either party since the date of filing would typically not be subject to division in divorce. That means that Fox’s earnings from the most recent Teenage Mutant Ninja Turtles movie may remain hers alone. If the divorce were to go through as filed, Fox would have a considerable financial advantage. Absent a prenuptial agreement and in the event that the divorce was called off, any income received by either party would be considered marital property and subject to division.

While it is tempting to speculate about the lives and choices of celebrities, there is no way to know how anyone will move through a divorce. The example of Megan Fox and Brian Austin Green does provide a powerful reminder of the benefits that prenuptial agreements can provide, in Florida and elsewhere. If the couple chooses to move forward with divorce but remain living as a family, that decision could very well be made for financial rather than emotional reasons.

Source: Fox News, “Megan Fox, Brian Austin Green divorcing despite her pregnancy?“, April 18, 2016

Understanding the bare basics of prenuptial agreements

For Florida couples who are preparing to wed, a prenuptial agreement can be a valuable financial planning tool. These marital contracts are incredibly flexible, and they can be used to cover a wide range of circumstances and goals. However, most prenuptial agreements follow the same overall structure, and cover many of the same basics. Beyond that, couples can choose to include the items that are of importance to them, both individually and as a couple.

One of the primary goals of a prenup is to establish how assets will be divided in the event that a marriage ends in divorce. A significant part of that process involves determining what property will be considered separate property and what will be considered marital property. This will create guidelines for how different aspects of a couple’s combined wealth would be handled if the need for property division should arise.

Another consideration is which party would be responsible for paying the legal fees that accompany a divorce. In some cases, parties agree that each person would be responsible for  his or her own legal fees. Others agree that the party who is seeking the divorce or who caused the marriage to end will shoulder the brunt of the legal fee burden.

Spousal support is another area of focus within a prenuptial agreement. Here again, the possibilities are endless. Some couples will go into great detail about which party would receive what level of support, for how long and under what conditions. Others are content to simply outline the basics of how spousal support would be provided.

Florida couples who are considering their options should feel good about the proactive stance that they are taking as they prepare to move forward as a family. Prenuptial agreements are powerful tools, and they can make a world of difference if they are ever needed to be called into action. For those couples who will remain happily wed for the rest of their lives, a prenup is simply an insurance policy against an outcome that will never come to pass.

Source: businessinsider.com, “ASK A FINANCIAL PLANNER: ‘What should I include in a prenup?’“, Sophia Bera, April 17, 2016

What is an out-of-court divorce?

If a divorce is in your future, you may assume that you will have to deal with the stress and cost (financial and otherwise) of a court proceeding. In reality, court is something that you and your spouse can and in most cases should avoid.

There are many advantages to obtaining an out-of-court divorce in Florida. Here are a few of them:

  • You and your spouse can determine the outcome. You will not be exposed to the risk of having a stranger make decisions that will affect you and your children for the rest of your lives.
  • You and your spouse can prepare financial disclosure and compile information on your own timelines. You can provide only the information that is necessary – not all of the information that you each would be required to disclose if you have a court case.
  • Out-of-court divorces proceed faster and cost less than a court case. Litigation involves a lot of wasted time and effort.
  • You can choose to restructure family relationships-not destroy them as so often happens in a court case. This is the most significant of all the benefits in an out-of-court divorce. Keeping lines of communication open can have a lasting benefit for many years beyond your divorce.

Litigation is an adversarial proceeding that leads to the two sides digging into their positions and attacking the other side. This is time-consuming, emotionally damaging, and costly. Through collaborative divorce or other out-of-court options, you and your spouse can craft your own settlement. Once you reach a agreement, you can present your settlement to the court to approve.

Sheldon E. Finman, P.A., is a family law attorney in Fort Myers who helps his clients seek seeks less adversarial ways to dissolve a marriage.

Facebook can have a significant impact on a high asset divorce

Many Florida couples are looking for a way to end their marriage without engaging in the conflict and contention that so often defines the divorce process. In such cases, collaborative law offers a path that can make a high asset divorce far less stressful and expensive. When preparing for a collaborative divorce, it is important for spouses to recall the old adage “an ounce of prevention is worth a pound of cure,” especially when it comes to their use of social media.

A certain number of couples who begin their divorce using collaborative methods will eventually move toward less cooperative tactics. In such cases, the content of one’s Facebook or other social media accounts can become part of the divorce case. For example, a spouse who argues that she cannot afford to pay a certain level of spousal support might have difficulty convincing the court if her Facebook page is full of photos of her enjoying lavish vacations and driving a luxury car.

Facebook can come into play in child custody matters, as well. Imagine a parent who is trying to gain a greater share of parenting time, but whose Facebook page is rife with references to drugs and excessive drinking. Courts are unlikely to look favorably upon a parent who displays blatant and public acts of poor decision-making. In the most extreme cases, parents can lose their access to their children if evidence obtained from social media accounts suggests that these choices are being made during times that the parent has the child or children in his or her care.

Florida spouses who are interested in pursuing a collaborative divorce should be applauded for their desire to end their marriage in a manner that is civil. At the same time, they would also be well-advised to suspend their social media use and/or edit the contents of their accounts to reflect the same impression that they would want to make in a court of law. In the best outcomes, these preventative measures will never need to be called into action. In those cases in which collaboration fails during a high asset divorce, having those protections can make a world of difference.  

Source: callawyer.com, “The State of Facebook and Family Law”, Chandra Moss, April 5, 2016

When to file (or not file) divorce papers

Some divorce lawyers recommend that their clients file their divorce petition as soon as they initiate divorce proceedings, thinking it is better to file a petition than to respond to one. Other the other hand, unless you have specific reasons why you need to file your petition now, jumping the gun can backfire.

The way you file for a dissolution of marriage can set the tone for the rest of your divorce. Having a deputy from your county sheriff’s department deliver a divorce petition to an unsuspecting spouse can seem confrontational to say the least. It is likely to trigger an equally confrontational response.

In Florida, the paper you file to obtain a divorce is called the “Petition for Dissolution of Marriage.” The person filing for divorce is the “petitioner,” and the other spouse is the “respondent.” However, there is no particular advantage in being the petitioner or the respondent. Being the petitioner can work against you if you and your spouse have not discussed all of the issues in your divorce. All issues you want the court to address should be listed in your petition.

If a divorce is in your future, you and your spouse have a choice about how you proceed. You can do so cooperatively or collaboratively with the goal of reaching an out-of-court settlement. An out-of-court settlement is less costly and less stressful that a litigated divorce. It can also help preserves family relationships.

A litigated divorce is rarely in either party’s best interests. It will result in the wasting of assets you and your ex will need to maintain two separate households. It may also result in lasting bitterness.

There are times when you will need to file your petition as soon as possible. For example, you may need specific protections, such as an order to prevent a spouse from disposing of assets. If you have specific concerns, you should discuss those with your attorney.

If you and your spouse have agreed on property division, neither spouse is asking for alimony, and you have no children under 18, you and your spouse may be able to file a petition for a “simplified dissolution of marriage.”

Sheldon E. Finman, P.A., is a family law attorney in Fort Myers who helps his clients seek seeks less adversarial ways to dissolve a marriage.

Some of the many benefits of collaborative law

For many Florida parents, ending their marriage is a stressful time. Having to come to terms with the end of what was once thought to be a lifetime commitment is hard enough. But factor in the fear of losing parenting time with one’s child or children and the scenario becomes fraught with tension. Child custody battles are among the most contentious legal cases that any attorney will encounter, and many families stagger away from that experience the worse for wear. Collaborative law offers an alternative path toward resolving custody and divorce issues.

The collaborative process begins when both spouses agree that their individual interests would be best served by avoiding a lengthy and bitter legal fight. In addition, parents who pursue collaboration understand that the best interests of their kids are also served by this approach. While each divorce is unique, many people who pursue a collaborative divorce will find it a less expensive experience than a more traditional divorce.

During collaboration, both spouses are assisted by an attorney. That professional is there to advise his or her client and to ensure that the settlement is fair and balanced. Attorneys who are trained in collaboration have tools to help spouses remain focused on their shared goals and work toward mutually agreeable resolutions.

It is important to say that collaborative law is not a good fit for every divorcing couple. However, for those in Florida who are looking for a more amicable split, collaboration can be a great option. It is well worth the time and effort to explore how a collaborative divorce works and to discuss whether this is an approach that will suit the needs of all involved, including shared children.

Source: heraldpalladium.com, “Divorcing with dignity“, Louise Wrege, April 3, 2016

How to handle the family home during property division

For many Florida residents, deciding what to do with the family home is a major focus of their divorce process. In some cases, one party wants to retain the home, while the other wants to sell the property and move on. This can be a major sticking point in divorce property division negotiations, and many spouses wonder what their options are.

It is hard to argue that selling the home and dividing the proceeds is the most financially advisable solution for all involved. However, if the local real estate market is not thriving, this may not be an option. If a couple cannot sell their home, their options become limited. Some will choose to go through a short sale and will accept less than what is owed on the home. That option can leave both parties with a considerable dent in their credit scores.

Another option is for both parties to move out of the home and put it up for rent. That can serve to maintain some cash flow from the property while waiting for the market to improve. However, acting as co-landlords can be difficult for newly divorced spouses, as a high degree of cooperation is required.

Deciding how to handle the family home during divorce and property division can be a challenge, especially when one party wants to keep the home and the other wants to sell. It is important for Florida spouses to understand that there are a number of options available. Finding a solution is possible with a degree of collaboration and effort.    

Source: TIME, “What Happens to Your Mortgage in a Divorce“, Ashley Eneriz, March 29, 2016