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Blog-Prenup

The importance of a prenuptial or postnuptial agreement

Frances Bean Cobain, daughter of the late Kurt Cobain and Courtney Love, is getting divorced from her spouse of 2 years, Isaiah Silva.  Silva is requesting $300,000 a year in alimony.  Cobain stated she was open to paying alimony but wanted to protect her father’s estimated $450 million estate.

Obviously, Cobain could have protected hPrenuperself better had she had a prenuptial agreement to list and determine marital versus non-marital assets and liabilities, as well as a provision for alimony.  In prenuptial agreements, the parties can determine and agree to amounts of alimony for a party depending on the length of the marriage.  Also important in the case of Ms. Cobain is the protection of her father’s estate.  In a prenuptial agreement, the parties can determine, what, if anything, a spouse is entitled to from non-marital funds.

Oftentimes, parties decide to get married without a prenuptial agreement.  This does not preclude the parties from entering into an agreement on how to divide marital and non-marital assets after the parties are married, without a prenuptial agreement.  A post-nuptial agreement is entered after the parties have married, and gives the parties peace of mind if they neglected to have a prenuptial agreement, or have acquired assets or liabilities since the date of marriage.

McNeal Legal can help guide you regarding a prenuptial or postnuptial agreement and protect you and your assets.

Photos in this blog are courtesy of: pixabay.com and huffingtonpost.com

Domestic Violence

S/he doesn’t actually hit me, so it isn’t Domestic Violence, right?

With the recent publicity involving NFL player Ray Rice, domestic violence is a frequent topic of conversation. While many jokes and tasteless comments have arisen because of the publicity of this event, it does start conversation surrounding a difficult topic, and allows people to further evaluate their personal relationships. Florida Statutes §741.28 provides definitions for domestic violence and defines who is a family member:

(2) “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
(3) “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

In Florida, if someone believes he or she is a victim of domestic violence, an injunction should be sought. In filing for an injunction, it is important to note the language in Florida Statutes §741.30(3) (h) Petitioner is either a victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence because respondent has (mark all sections that apply and describe in the spaces below the incidents of violence or threats of violence, specifying when and where they occurred, including, but not limited to, locations such as a home, school, place of employment, or visitation exchange):

____ committed or threatened to commit domestic violence defined in s. 741.28, Florida Statutes, as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another. With the exception of persons who are parents of a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
____ previously threatened, harassed, stalked, or physically abused the petitioner.
____ attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
____ threatened to conceal, kidnap, or harm the petitioner’s child or children.
____ intentionally injured or killed a family pet.
____ used, or has threatened to use, against the petitioner any weapons such as guns or knives.
____ physically restrained the petitioner from leaving the home or calling law enforcement.
____ a criminal history involving violence or the threat of violence (if known).
____ another order of protection issued against him or her previously or from another jurisdiction (if known).
____ destroyed personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the petitioner.
____ engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.
Domestic Violence
Importantly for a victim, the language of this statute contains the catchall: “or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence”. This allows an individual to pursue protection before any physical action takes place.

However, Courts have ruled that although an act of domestic violence need not be completed before one may seek injunctive relief, if fear alone is the “reasonable cause” alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well. Gustafson v. Mauck, 743 So.2d 614, 615 (Fla. 1st DCA 1999). Absent this objective reasonableness, a petitioner’s belief is unsubstantiated speculation that does not support the entry of an injunction. See id. at 615-16. An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance. See Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011); Randolph v. Rich, 58 So.3d 290 (Fla. 1st DCA 2011); Gustafson v. Mauck, 743 So.2d 614 (Fla. 1st DCA 1999); Young v. Smith, 901 So.2d 372 (Fla. 2d DCA 2005); Giallanza v. Giallanza, 787 So.2d 162 (Fla. 2d DCA 2001).

This statute provides important considerations in seeking an injunction for protection for domestic violence. Domestic violence can take many forms. Many communities provide safe, temporary housing for victims of domestic violence (and many also allow the victim to bring their children). The University of Florida College of Law has an Intimate Partner Violence Assistance Clinic (IPVAC), where victims can also gain assistance in seeking an injunction.

Photos in this blog are courtesy of: 3.bp.blogspot.com

Same Sex Couples

Florida Court Makes a Move for Same Sex Couples

In a decision out of Palm Beach County, field August 5, 2014, the Court considered whether a same sex spouse could be appointed to serve as a Personal Representative for his deceased husband. In Re Estate of Bangor involved Frank Bangor and W. Jason Simpson. The couple married in Delaware in 2013. Mr. Bangor died in 2014, in the parties’ home state of Pennsylvania. He named his spouse, Mr. Simpson, as the Personal Representative. Mr. Bangor owned property in Florida. Under Florida law, specifically Florida Statutes section 733.304, a non-resident of the state can serve as Personal Representative if they are a spouse, brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person. The issue in the case was whether or not Mr. Simpson would be considered Mr. Bangor’s spouse in the State of Florida, as same sex marriages are not legal under Florida statutes.

Utilizing the Equal Protection Clause and the recent holding of United States v. Windsor, 133 S. Ct. 2675 (2013), the Court heldSame Sex Couples that Florida Statute §741.212 and Article I, Section 27 of the Florida Constitution were unconstitutional, as applied to Mr. Simpson, and would not be enforced against him, thereby giving him the right to serve as Personal Representative for Mr. Bangor’s estate, as his spouse. The Court held that the marriage laws “unnecessarily discriminate against this spouse who is recognized by other states as a spouse”. The Court further held that “same sex couples are entitled to respect, dignity and protection as any other spouse requesting to be a Personal Representative.”

While the Court did state that Florida Statutes 741.212 is unconstitutional “as applied” to the facts of this case, specifically, a probate case, the language used by the Court and other cases cited to be the Court offer glimmers of hope for the rights of same sex couples in Florida.

A link to the full opinion can be found here.

Photos in this blog are courtesy of: outsidethebeltway.com, i.telegraph.co.uk

Religion Child Custody

Does religion matter in a child custody case?

In establishing a parenting plan, courts look to the factors in Florida Statutes §61.13. A court’s determination is governed by what is in the child’s best interests.

61.13(3), in relevant part, provides: For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(f) The moral fitness of the parents.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Religion Child Custody
In an interesting case, Abbo v. Briskin, 660 So.2d 1157 (Fla. 4th DCA 1995), prior to the marriage, the mother converted to Judaism. After the parties’ divorce, she reverted back to Catholicism. In the parties’ divorce, the trial court ordered that the mother “should not interfere in the development of the child’s Jewish religious training and upbringing, nor should she actively influence the religious training of the child in any other direction, other than the Jewish faith.” The appellate court noted that the trial judge’s injunction is not expressly founded on any fact relating to the physical or psychological welfare of the child. Rather it seems to flow from the court’s finding that the mother had agreed before marriage to convert to the Jewish faith. Thus the restriction is not grounded in a factual finding that an attempt to expose the child to Catholic teachings or to raise the child as Catholic would adversely and detrimentally affect her well-being or welfare. Equally, it is not based on any finding that it would beneficially promote her health or welfare if she were raised in Judaism.

The appellate court went on to note that, as with married parents who share diverse religious beliefs, the question of a child’s religion must be left to the parents even if they clash. A child’s religion is no proper business of judges. Id. at 1161. Clearly, a party would have to show the detrimental effects of a parties’ religion as it relates to their ability to parent the child or children. Also, as the appellate court notes, courts should be cautious in interfering with parents’ choice or religion, or their choice of religious instruction for their children.

Sexual Orientation Child Custody

Does sexual orientation (lesbian, gay, bisexual, transgender) matter in a child custody cases?

In establishing a parenting plan, courts look to the factors in Florida Statutes §61.13. A court’s determination is governed by what is in the child’s best interests.

61.13(3), in relevant part, provides: For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(f) The moral fitness of the parents.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Sexual Orientation Child Custody
In Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2d DCA 2000), the court was faced with issues of religion and the mother’s sexual orientation. Specifically, there was testimony about the children’s religious teachings and the mother’s sexual orientation. The trial court also made comments, in its ruling, that the community generally has problems with individuals who are not heterosexual. The Court held that, for a court to properly consider conduct such as Mrs. Jacoby’s sexual orientation on the issue of custody, the conduct must have a direct effect or impact upon the children. See Maradie v. Maradie, 680 So.2d 538 (Fla. 1st DCA 1996). “[T]he mere possibility of negative impact on the child is not enough.” Id. at 543. The connection between the conduct and the harm to the children must have an evidentiary basis; it cannot be assumed. But even if the court’s comments about the community’s beliefs and possible reactions were correct and supported by the evidence in this record, the law cannot give effect to private biases. See Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984); cf. Department of Health and Rehabilitative Services v. Cox, 627 So.2d 1210 (Fla. 2d DCA 1993) (stating that private biases against homosexuality are not a permissible rational basis to support statute banning homosexuals from adopting), approved in part, quashed in part, 656 So.2d 902 (Fla.1995). Moreover, even if the law were to permit consideration of the biases of others, and even if we were to accept the assumption that such would necessarily harm the children, the bias and ensuing harm would flow not from the fact that the children were living with a homosexual mother, but from the fact that she is a homosexual. See Conkel v. Conkel, 31 Ohio App.3d 169, 509 N.E.2d 983 (1987); M.P. v. S.P., 169 N.J.Super. 425, 404 A.2d 1256 (App.Div.1979). The appellate Court held that the circuit court’s reliance on perceived biases was an improper basis for a residential custody determination.

Assets at Death

Divorce and the disposition of assets at death

With the number of people getting divorced increasing, and the number of older “baby boomers” divorcing and/or dying, the Florida Legislature altered Florida Statute §732.703(2) relating to the effects of divorce on the disposition of assets at death. The Statute states:

“A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order. The decedent’s interest in the asset shall pass as if the decedent’s former spouse predeceased the decedent. An individual retirement account described in §408 or §408A of the Internal Revenue Code of 1986, or an employee benefit plan, may not be treated as a trust for purposes of this section.”
Fighting over money
In reality, once the marriage is dissolved, and a Final Judgment of Dissolution is filed with the Court, any asset transfer or payment as listed in Florida Statute §732.703 (i.e. life insurance policies, POD accounts, retirement accounts) becomes a nullity and is not valid. However, after a dissolution it is still very important to change the beneficiaries to those assets (obviously, if those are assets not distributed to the former spouse). If the beneficiary to a policy is not changed after a dissolution, the “payor” may still submit payment to the former spouse after death. This means the current beneficiaries (most often children or the current spouse) would then have to file a lawsuit against the former spouse and/or the asset manager (retirement company/insurer/etc.) to recover those assets transferred to the former spouse. A failure to timely change beneficiaries to those assets after a dissolution could cause delay, expense, and frustration for grieving families.