Should Florida Couples Create a Prenuptial Agreement?

A Contract of Love: Why Every Smart Bride (And Groom) Should Consider a Prenuptial Agreement

There is just something romantic about this time of year. In Pensacola, we know that the cold weather is about to give way to a glorious panhandle spring and, frequently, our first days of warm weather coincide with the heady season of love and St. Valentine’s day. The jewelry stores start preparing for the engagement and wedding season and increase their diamond inventory; restaurants plan special menus; and florists put in their orders for the red roses, to be delivered all around town. Ladies who are well-loved by the right man become more beautiful every day, and the men who love them become more confident. If you have ever witnessed a couple become engaged, the nervous posture of the groom-to-be and the excitement of the bride-to-be cannot help but elicit a feeling of hope in the observer. Yes, Shakespeare was right; the sight of lovers is like seed for lovebirds.

Ahh and a bride-to-be, constantly looking down at her hand, admiring the way that her ring catches the light, flipping through magazines full of dresses and decorations, and putting in place the wedding she has had planned in her mind since she was a little girl. The cake, the dress, the party! And just as the fun of the wedding planning is being undertaken, someone dares to ask, “Are you getting a pre-nup?” Gasp! Who would cast this shadow of doubt on a newly engaged couple?

Yes, over the years the word “pre-nup” has become a dirty word for hopeful and committed brides and grooms. It is understandable of course, as who wants to enter a marriage with the expectation of it failing; why plan for the end your marriage when you have just committed to undertake this life in a permanent partnership? But what if the discussion about a prenuptial agreement did just the opposite? What if it solidified your commitment instead of polarized it?

Prenuptial agreements have been around for centuries. In the Jewish faith, the bride and groom not only make an emotional and spiritual commitment to one another through marriage but also make a legal commitment through the use of a ketubah. In a ketubah, the mutual responsibilities of the parties are outlined for the couple both during the marriage and, if necessary, upon their divorce. The true historic goal of the first prenuptial agreements, therefore, was not just for divorce planning, but also for marriage planning. Over the years, society’s view of prenuptial agreements has deviated from this idea. It’s no wonder, given that when celebrity couples break up and the extreme terms of their prenuptial agreements highlight nothing but their selfish motives and greed. But the purpose of a well thought out prenuptial is the exact opposite and has less to do with protecting your “stuff” from the other person and more about writing your own plan for your future, as husband and wife.

This may sound harsh, but bear with me. Smart couples know that, even though they do not intend and do not want to ever dissolve their marriage, the possibility of dissolution is a reality. The current national divorce average is somewhere around 40 percent, down from recent years when it topped 50 percent. While every newly engaged couple is hoping and expecting to beat those odds, smart brides and grooms do not ignore the possibility of dissolution. Aside from the possibility of divorce, smart brides and grooms know with certainty that if divorce doesn’t end their marriage, death will. Prenuptials not only help outline terms for divorce but can also establish terms for inheritance and estate planning. When a person dies, Florida law provides for how that person’s property is transferred. Similarly, if a couple divorces, the law will dictate the terms of that divorce. In these instances, a statute or a judge interpreting the facts to the relevant law can ultimately make very personal decisions for families. A prenuptial is a contract that sets forth some minimum terms in both situations, and smart brides and grooms use a prenuptial to decide that, when the marriage ends, due to either death or dissolution, that their lives will be governed by the terms of their own agreement, rather than by any terms dictated by a statute or a judge.

Ask any couple who has been married for a long time what their secret of success is and they will likely tell you “communication.” In fact, the pastors, licensed mental health counselors, and other people involved in helping struggling marriages, that I work with on a regular basis, will tell you that couples are headed for divorce when they can no longer communicate. A prenuptial agreement forces a couple to have conversations about difficult subjects like finances, death, and honesty before they take the leap. Smart brides and grooms believe that by openly discussing these matters, they are solidifying their commitment and love for each other and setting a pattern of open communication that will stay with them for the duration of their relationship and married lives. This is accomplished in several ways as the prenuptial is negotiated. Enforceable prenuptial agreements require full financial disclosure of each party’s assets and liability and

This is accomplished in several ways, as the prenuptial is negotiated. Enforceable prenuptial agreements require full financial disclosure of each party’s assets and liabilities, and the process forces the parties to think about their positions on legal issues like alimony, marital assets, debt, and inheritance. A good prenuptial agreement also helps the couple outline how finances will be handled during the marriage and can address financial issues like separate bank accounts and individual earnings.

Most people do not know the rules of the game when it comes to divorce or death. There is no doubt about it that when you get married, you are entering into a contract. Saying “I do” means they are committing themselves to certain spiritual and emotional responsibilities, as well as certain legal rights and responsibilities under the law. But, when you think about it, it is probably the only contract that you enter into without understanding what those rights and responsibilities really are. Few couples know if they will have to pay alimony or not if they divorce, whether or not keeping the title of a property in the name of only one party will determine who it will belong to after divorce, or how assets and debt would be divided in the event of a divorce. The first time they learn about the rules of the game is after someone has filed for divorce or one party has died. Then it can be too late. A prenuptial helps a couple understand what the law says about marriage, divorce, and death and helps them decide at the outset, whether or not they agree with the laws. The prenuptial can then override the current law, in many instances, and create the “law of the marriage” for this couple. Don’t believe in alimony? You can waive your entitlement to it via your prenuptial. Believe that forgoing a career to stay at home with children should be financially compensated for? Contract for that compensation. Want to require that the title controls ownership for all the property acquired during the marriage? Include it in your agreement. A smart bride and groom use a prenuptial to write their own rules.

As a divorce lawyer, I don’t get the opportunity, as often as I would like, to facilitate the creation of families. Honestly, when I started doing prenuptial agreements, I had the impression that they were just for the wealthy, blended families, or for couples who really didn’t think they were going to “make it” long term. But the more brides and grooms that I represent, the more value I see in the process of creating a prenuptial agreement and making financial decisions together. A recent prenuptial client said, “If we can talk about things like whether or not to have a baby, we should be able to talk about the real embarrassing things like my credit card debt.” As this particular couple was leaving my office on the date they executed their prenuptial agreement, they looked at me and the other attorney and informed us that their next stop was the courthouse, to get their marriage license. “Now that we signed this contract of love, let’s make it official.”

Seed for this lovebird’s soul.

Autumn Beck Blackledge is a collaborative family law attorney in Pensacola, Florida.

 

West Florida Collaborative Law, Inc. Officers

Pensacola, Florida Collaborative Family Law Practice Group Announces It’s Inaugural Officers:

President – John Susko, Esq.

Vice President – Stephen Pitre, Esq.

Secretary – Joshua Aaron Jones, Esq.

Treasurer – Catherine Bond, CPA

The officers are happy to take questions from the public and from our legal, financial, and mental health colleagues. We welcome the opportunity to speak with your professional, school, church, or civic group about the benefits of collaborative family law, as an option in marital and family legal disputes. Please contact us to schedule a presentation.

Our group is already off to a great start! Less than a month into our membership drive, we’ve joined with more than twenty members. Meanwhile, our programs committee is working diligently to bring the group high-quality speakers, for our monthly meetings, and outreach programs to educate the public and our colleagues about collaborative family law.

Join us!

Who Gets the Family Dog in a Florida Divorce?

Joint Custody over the family dog?

If we want to know what the laws in our state will look like in the future, many times we only need to look west. Under a new law enacted in Alaska, judges will take into consideration the well-being of the animal and can assign custody of pets similar to children in a divorce setting.

So if you are wondering what does a Bedlington Terrier (look it up) have to do with Florida’s collaborative divorce process, the answer is options to accomplish things that our laws do not permit. In Florida, dogs are legally still considered personal property and a court has no authority to grant custody or visitation to pets. Unlike kids, the pet goes to one parent only and that’s all folks. Perhaps one reason for the disparity in treatment is that the courts are overwhelmed enough with children; having courts increase their responsibility to include animals, in a time-sharing context, is not helpful on a state-wide scale.  Bennett v. Bennett, 655 So.2d 109 (Fla. 1st DCA 1995).

The problem with the all or nothing legal approach is that while one spouse will be happy with the result, the other will be very disappointed. And as long as there are minor children involved, it is an opportunity to perhaps seek revenge or express resentment over the loss of a pet through the children. In a collaborative setting, there is no opportunity to have a winner or loser because the parties are not limited to treating the pet the same as a coffee mug.

While parties even undergoing the litigation process are always free to reach agreements on their own, sometimes it is all too tempting to run to the judge and hope they give you what you want if the other side will not agree to your terms. The my-way-or-the-highway approach to dissolution is what separates collaborative divorce from the litigation approach. While Florida courts may not enforce any agreement, including making up timesharing for a family pet, the collaborative divorce process structure held to eliminate the small items from causing bigger problems in the years to follow after the lawyers and judges are gone.

Stephen Pitre is a collaborative family law attorney in Pensacola, Florida.

Can There Be P.E.A.C.E. in Divorce?

Have you ever heard the one about how to eat an elephant? One bite at a time. It’s about taking a seemingly insurmountable task and breaking it down into a series of bite-sized pieces to make it doable. Divorce can and should be handled in the same way. It may seem paradoxical but think of the word PEACE.

P.E.A.C.E.

This acronym stands for Parenting, Equitable Distribution (the division of your stuff), Alimony, Child Support, and Everything Else. You can see that divorce is clearly about money and, in some cases, kids. When these issues are negotiated in a systematic manner, the whole process can be accomplished relatively quickly. Pain can be minimized, and tens of thousands of dollars can be saved. Unfortunately, divorce often goes the other way for a number of reasons, nearly all of them avoidable. From my experience, there are two main causes for a costly and protracted divorce: first, letting raw emotion take control of the situation and, second, the lack of organization during negotiations.

A Vulcan Divorce

Before we go any further, I want to show you a quick illustration of what divorce would look like on the planet Vulcan. I won’t assume that you’re a science fiction geek like me, so I’ll give you a quick briefing on Vulcans. For the non-Trekkie, the Vulcan Mr. Spock was First Officer assigned to the Starship Enterprise. Famously known for their lack of human emotions, all Vulcan decisions are based on logic. They are not burdened by the silly human condition of emotion. Mr. Spock often respectfully questioned the logic of his Commanding Officer’s choices. Imagine how simple a divorce would be for Mr. and Mrs. Spock. They’d hash it out between themselves in about an hour, and it would look something like this.

Parenting

They would share time with their kids equally, alternating holidays and birthdays. All major child-rearing expenses would be discussed and agreed upon (rationally, of course) before incurring them. Once consensus was reached, expenses would be shared equally.

Equitable Distribution

Vulcans would simply break out their balance sheet and split it in half. They are Vulcans, so naturally, they keep their financial statements up to date at all times. Neither has any emotional tie to any of their possessions so this part goes very quickly. Their financial accounts total about $800,000. Simple, $400,000 each. They’ve paid off their home and it has no sentimental value (what’s sentimental value?) to either of them. They sell it and split the proceeds 50/50. You get the picture.

Alimony

Piece of cake. They break out their financial affidavit, which you’ll read about in Chapter 6, but for now, you just need to know it’s a listing of all incomes, expenses, assets, and liabilities. Then on an after-tax basis, they equalize their incomes with spousal support payments.

Child Support

This isn’t an issue in a Vulcan divorce. Both spouses make the same after-tax income (see Alimony), and all non-incidental expenses related to the children are approved together and shared equally (see Parenting).

Everything Else

There is nothing else; they’re Vulcans. Everything else would be a “loose-end” related to that silly human foible, emotion.

Fortunately, we’re not Vulcans. What would be the fun of that?  Since we share a planet, most of us are closer to the human starship commander, Captain James T. Kirk. For those unfamiliar with the storyline, Jim is a near polar opposite of Mr. Spock. He is hyper-emotional and prone to verbal outbursts that would have kept the writers of Saturday Night Live in material for months. Given our genetic reality, it’s very likely we’ll need some support in getting through the emotional journey of a divorce. This is exactly why the collaborative approach can be so powerful.

Jon Kagan collaborative
Jon Kagan is a financial advisor in Navarre, Florida.

Collaborative Law in Florida

The Florida Supreme Court has long recognized that family law cases needed “a system that provided non-adversarial alternatives and flexibility of alternatives; a system that preserved rather than destroyed family relationships; . . . and a system that facilitated the process chosen by the parties.” In re Report of Family Law Steering Committee, 794 So. 2d 518, 523 (Fla. 2001).

 

In August 2016, The Family Law Rules Committee and The Florida Bar Board of Governors approved Family Law Rule of Procedure 12.475, which addresses the collaborative law process, and Bar Rule 4-1.19 which governs the attorney’s role in the collaborative process. Both are currently before the Florida Supreme Court for adoption.
Once adopted, Sections 61.55-61.88, Florida Statutes will codify a system of practice of collaborative law to encourage the peaceful and early resolution of disputes through a voluntary settlement process.

The collaborative law process is a unique non-adversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation. § 61.55, Fla Stats. (2016). The process also provides a method to maintain certain information as privileged that otherwise might be public record, had the parties opted to litigate their dispute within the court system. §61.58 Fla. Stats. (2016).

COLLABORATIVE LAW in ESCAMBIA – SANTA ROSA COUNTIES

In May 2016, the first of many monthly meetings of Escambia and Santa Rosa attorneys and financial and mental health professionals interested in collaborative law, met to discuss launching a collaborative practice group in the area. In July 2016, eleven attorneys, one mental health professional and one financial professional from Escambia and Santa Rosa counties attended a two-day training program on how to conduct a collaborative divorce. Since July, the newly trained collaborative professionals have formed West Florida Collaborative Law, Inc. for the purpose of educating potential litigants that the collaborative process private and conducted in a professional, respectful setting that fosters, rather than erodes the parties’ relationship, is available as an alternative to hostile, expensive, and destructive litigation.

In September, West Florida Collaborative Law, Inc. met with Escambia Family Law Judges to present a proposed administrative order to the First Circuit, which recognizes collaborative law as an additional means of alternative dispute.

WHAT IS COLLABORATIVE LAW?

Collaborative law is a voluntary settlement process that occurs early on in a dissolution or modification action. Depending on the issues, the process may involve a neutral financial professional, but always engages a neutral mental health professional (“MHP”), who acts as a facilitator, the parties, and each party’s collaboratively-trained attorneys. The MHP does not act as counselor or therapist to either party but rather, acts as a neutral facilitator. The facilitator is selected by the attorneys and plays a critical role in the process in leading the parties through the process of identifying their goals and in creating strategies for obtaining them.

Normally in family law, each party locks themselves into automatic positions from the outset: “50/50 timesharing” or “equal division of assets and debts,” and then spends their energy and money litigating a position that may or may not move them towards the larger long term goals. The collaborative process enables the parties to determine the issues that are most important to them through Interest-Based Negotiation, a ‘win-win’ model of negotiation.
Once the parties have retained a collaboratively-trained attorney and have agreed to participate in the collaborative process, each client meets individually with the facilitator. After each client meets with the facilitator alone, the clients meet together with the facilitator. Then the facilitator and both attorneys meet to identify the parties’ issues and to set the agenda for subsequent “Team Meetings” which include both parties, their attorneys, and the facilitator.

Using Interest-Based Negotiation, the facilitator engages the parties in a process designed to identify each party’s objectives or actual interests. It’s the facilitator’s role to assist each client in unearthing the things (interests) that are truly important to the client, as opposed to those things that a client may reflexively feel a need to fight about. For example, does a party really want more timesharing with the children or is their actual interest to pay less child support? Once all interests of both parties have been identified, the parties brainstorm ideas to achieve their identified interests. The process allows the parties to create their own solutions to satisfy those interests that are most important. The parties’ emotional energy (and money) is used to formulate solutions to thoughtfully identified actual ‘interests’ that enhance each of their lives moving forward as opposed to fighting over fixed or reflexive positions that don’t advance the party’s actual interests.

During the course of the normal process, months, sometimes years, are spent in the discovery process, often unnecessarily. The collaborative process does not involve discovery; it is based on full disclosure by both parties. Its success depends on the good faith efforts of both parties and their attorneys. The process is well-suited for dissolution of marriage; paternity, child support, time-sharing; parental relocation; and modification of the prior final judgment, regarding a family law matter.

Collaborative law is not merely an alternative to mediation; it is a replacement to litigation. It is an entirely different process where success is defined by identifying outcomes that optimize each party’s identified interests. Unlike litigation, where a litigant might keep score based on the number of motions granted or denied, by how much money they can force the other to spend, by how long the discovery process can be unnecessarily extended, or even by how long a party can delay resolution to torture the other party, the ‘win’ in collaborative goes to both parties.

Pensacola collaborative family law
Mary Mcdaniel is a collaborative family law attorney in Pensacola, FL.