NEW YORK COURT INVALIDATES PRENUP

Avoiding Prenup Pitfalls

Avoiding Prenup Pitfalls

A recent New York court decision illustrates that circumstances surrounding the formation of a prenuptial agreement (“prenup”) can be as important as the prenup document itself.   The New York case involved a prenup entered into by Elizabeth Ciofi-Petrakis/Wife and Panagiotis Petrakis/Husband in 1998. According to a recent article published on Shine from Yahoo.com, Mr. Petrakis presented the prenup to Ms. Ciofi-Petrakis four (4) days before the marriage and promised he would add her name to the deed of a home, presumably owned by Mr. Petrakis prior to the marriage  and destroy the prenup after the birth of the parties’ first child. The article states that Mr. Petrakis never fulfilled any of his alleged promises.

The New York court found the Wife’s testimony regarding the facts leading to the formation of the parties’ prenup to be credible and set aside the prenup on the grounds Mr. Petrakis fraudulently induced Ms. Ciofi-Petrakis to sign the prenup. An attorney quoted in the Shine from Yahoo.com article called the decision a landmark case, but it is really? The court, citing a prior New York court’s decision,  noted “…there is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties.” Would the result have been different if Ms. Ciofi-Petrakis was given more time to review the document and Mr. Petrakis had fulfilled his alleged promises?

Here are some suggestions to avoid the prenup pitfalls experienced in the Petrakis case for anyone who is contemplating entering into a prenuptial agreement:

1)     Provide complete and full disclosure of all assets and liabilities prior to signing the prenup. If you have assets that are difficult to value, such as businesses, hire experts to value the assets before you enter into the agreement.

2)     Discuss in great detail the scope of the coverage of the prenup, including but limited to, property and assets, debts, retirement accounts, estate issues, and alimony.

3)     It’s a good practice to memorialize discussions and negotiation regarding the prenup in writing to avoid “he said, she said” credibility issues in the future.

4)     Allow plenty of time for your future spouse to review a proposed prenup and associated financial disclosures. Never rush or pressure your spouse into signing the document.

5)     Ensure that both parties have attorneys to review the prenup. If one party refuses to retain counsel, there should be explicit, written communication encouraging the non-represented party to obtain counsel well before the document is ever signed.

6)     Don’t make promises you do not intent to keep. If, for example, a spouse will receive a set amount of funds in the event of a divorce it is best to have the funds set aside to fulfill the promise.

It is not an easy task to discuss a prenup when you are about to make a lifetime to commitment to your future spouse, but failure to openly, honestly and transparently communicate about the contents and context of a prenup can cost you in the future.

Contact Jacksonville Prenup Attorney, Chris Taylor

If you have any questions about prenuptial agreements in Florida, do not hesitate to contact us.

 

Adultery and Alimony in Florida DivorcesAdultery and Alimony if Florida

In my practice as a Jacksonville divorce attorney, adultery has occurred (or is occurring) in a significant number of cases I handle. Adultery is often a symptom of larger problems in a marriage, but it is commonly cited as the reason the parties are divorcing. Many of my clients have had limited interaction with the legal system prior their divorce, so not surprisingly, they often possess misconceptions about Florida divorce law. One of the most common misconceptions is the role adultery plays in the outcome of the parties’ divorce.

Florida is a No-Fault Divorce State

Under Florida’s no-fault divorce law, a spouse does not need to show wrongful conduct or fault, such as adultery, has occurred to be granted a divorce; a spouse need only show that his or her marriage is “irretrievably broken.” Irretrievably broken means, in essence, that at least one spouse does not wish to remain married, for whatever reason, and there is no possibility of reconciliation.

Florida’s no-fault divorce law discourages parties from bringing marital misconduct issues, such as adultery, into the courtroom. However, despite Florida’s no-fault divorce law, adultery can still be relevant when alimony is an issue in a divorce case.

Adultery and Alimony in Florida

Florida Statute Sec. 61.08 states in relevant part:

“The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.”

As the statute indicates, adultery is a factor Florida courts may consider in determining whether or not to award alimony, but adultery cannot be separated, as a punishment to a spouse who committed adultery, from the other factors necessary to determine the availability of alimony. Even if the paying spouse has committed adultery, the spouse who requests alimony must show the need for alimony and the other spouse’s ability to pay.

In keeping with Florida’s no-fault divorce laws, when adultery and alimony are at issue, courts will often look at whether or not the adultery has had an economic impact on the marriage. If, for example, a spouse has dissipated a substantial amount of marital assets in furtherance of an affair on trips, entertainment and support of a paramour, then a court may issue a lump sum alimony award to compensate the other spouse for the reduction of marital assets caused by adultery.

Contact The Taylor Law Office

If you have any questions Florida divorce law, do not hesitate to contact your divorce lawyer in Jacksonville, Florida. The Taylor Law Office phone number is 904-339-5298 or contact the firm through this website. The Taylor Law Office is here to help!