Prenuptial Agreements and Estate Planning Considerations: ‘Till Death Do Us Part

      Nearly 80,000 Florida residents file for divorce each year.  And, Florida has the nation’s highest percentage of residents over the age of 65.  Many people enter into a second marriage with significant assets and adult children.  Accordingly, it is often important to consult an experienced Florida family law attorney for a prenuptial agreement that addresses address both marital and estate planning issues.

Florida adopted the Uniform Premarital Agreement Act (the “UPAA”), which expressly provides that parties may reach a binding contract on the following issues:  (i) the parties’ rights and obligations concerning any assets and liabilities; (ii) the right to buy, sell, use, transfer, or dispose of property; (iii) the distribution of property upon separation, dissolution, death, or other event; (iv) the right to alimony; (v) the making of a will or trust; and (vi) the disposition of life insurance proceeds.  See Fla. Stat. § 61.079(4)(a).

It is imperative to understand the estate and probate rights that may be waived by a spouse.  See Fla. Stat. § 732.702.  For example, asurviving spouse normally has the right to receive an “elective share” of the deceased spouse’s estate (under current law, 30% of the elective estate as defined in Chapter 732, Part II, Florida Statutes). 

A surviving spouse also has special rights to homestead real property.  A decedent may not freely devise homestead real property upon death if survived by a spouse or minor child.  See Fla. Stat. § 732.4015.  The surviving spouse is entitled to a life estate in the property or, upon election, an undivided one-half interest.  See Fla. Stat. §§ 732.401 and 732.4015.  The property is exempt from any claims by the decedent’s creditors.  See Art. X, Sec. 4, Fla. Const. 

Additionally, if a spouse dies intestate (i.e., without a will), a surviving spouse is entitled to a specific share of the estate.  See Fla. Stat. § 732.102.  If a person marries after making a will, the surviving spouse is entitled to receive an intestate share of the estate.  See Fla. Stat. § 732.301. A surviving spouse is also entitled to receive up to $20,000 in certain exempt property.  See Fla. Stat. § 732.402.  A surviving spouse is separately entitled to receive up to $18,000 in “family allowance” for support during the administration of an estate.  See Fla. Stat. § 732.403.  Finally, a surviving spouse has preference in appointment to serve as personal representative of a decedent’s intestate estate. 

All of these rights may be waived in a prenuptial agreement.  See, e.g., Fla. Stat. §§ 732.701 and 732.702 (to the extent the prenuptial agreement affects estate and probate rights, it must satisfy all other applicable formalities).  The prenuptial agreement, however, may include language requiring the parties to make a will or trust, to give a devise, or not to revoke a will or devise.  See Fla. Stat. §§ 61.079(4)(a) and 732.702.  A practitioner must be prepared to advise clients on any rights that are being waived and avenues to protect the client’s interests.

Do I have to pay child support if I receive disability payments from the government?

One common question is whether a parent has to pay child support if the children are receiving social security payments as a result of the parent's disability.

The short answer is that social security payments do not negate the obligation to pay child support.  A disabled parent, however, does receive credit for the social security paid for the benefit of the children.  In some cases, especially where the disabled parent has no other income, these payments may actually exceed the support obligation.  The fact of the matter is that, to make any determination, you should still have a Florida family law attorney or other qualified person apply the Florida child support guidelines, properly taking into account any social security benefits paid to the children.

Under the Florida child support guidelines, social security is treated as income for purposes of calculating the parents' child support obligation.  Specifically, under section 61.30(2)(a)(8), the social security benefits are treated as income to the disabled parent.  The disabled parent, however, also receives credit for paying support equal to the amount of the social security received on behalf of the children.  In other words, the social security funds are hypothetically earned by the disabled parent and paid by that parent to the children.

This rule was established by the First District Court of Appeals in Williams v. Williams, 560 So. 2d 308 (Fla. 1st DCA 1990).  In Williams, the trial court failed to credit a disabled father for social security payments received by the mother on behalf of their three children.  The court ordered that, in addition to the disability funds the mother received directly, the father also had to pay child support out of his own disability payments.  As a result, after satisfying his child support obligations, the father had no money from which to live.  The First District found that the court erred when calculating the child support guideline amount by failing properly to account for the social security payments received by the children.

In most cases, the social security payments will exceed the disabled parent's obligation to pay support.  This is especially true where the disabled parent has no other material income.

Smart Lawyer Gets No Sympathy from the Court

A story published by Law.com on Christmas Eve really got my attention.

So, when is it fair to revisit the terms of your divorce?  That may depend on who you are.

Yes, a final judgment or decree is supposed to be “final.”  But, in family law cases, there are occasions where it is completely appropriate and sometimes even necessary to change the terms of the final judgment or decree.

What justifies modifying a final judgment?  You obviously don’t want people going back to court every time they realize they left something out of their agreement or want something new.  At the same time, courts have to respect that circumstances do change.  This is especially true with continuing obligations such as child support, alimony, and visitation.

The law is pretty clear that you can revisit alimony, custody, time-sharing, and parental responsibility when there is a substantial change in circumstances.  Most states also require that the change is involuntary and unanticipated.

But, when is it appropriate to reconsider the equitable distribution of assets?  A high-ranking New York real estate attorney at the prestigious Paul Weiss law firm recently learned that he would receive no sympathy from the court when his circumstances changed for the worse.  

Steven Simkin had been married to his wife, Laura Blank, for more than 30 years.  They spent the better part of two years fighting over the value of certain real estate investments and Mr. Simkin’s law practice.  One item that was not subject to dispute was their account at Bernard L. Madoff Investment Securities LLC, which reflected a value of $5.4 million.  In the divorce, Laura Blank took $2.7 million in cash for her share of the Madoff investments.  Presumably for tax and other reasons, Mr. Simkin left most of the money in the Madoff investment fund.

As virtually everyone now knows, Bernie Madoff's investment fund was one of the largest ponzi schemes in the history of the world.  And, it turns out that Steve Simkin’s Madoff investments were completely worthless.  After learning that he paid his wife $2.7 million for her half of a worthless investment, Mr. Simkin asked a New York court to set aside the agreement.

On December 24, 2009, the New York Law Journal reported that the court denied any relief to Mr. Simkin. According to the report, Acting Supreme Court Justice Saralee Evans held that the Court simply would not revisit the parties’ settlement.  The Court reasoned that the account could have been converted to cash, so neither party was mistaken in their marital settlement agreement.  

But, what the Court apparently failed to consider was that, even if the money had been withdrawn, it still would have been subject to a “clawback suit” by the Trustee for the Madoff Estate.  The Trustee can recover withdrawals going back six years.  Nevertheless, Mr. Simkin is simply out of luck.  First, he lost $5.4 million in the Bernie Madoff fraud. Then, to add insult to injury, he unwittingly gave his wife $2.7 million for her share of the worthless Madoff investments.  Of course, there are many stories about people who were screwed by Bernie Madoff.  But, in this case, the family law judge decided that Mr. Simkin should bear 100% of the loss and his wife should keep the $2.7 million she took for her share of the sham investment. 

The Court simply had no sympathy for a man who had represented many of the world’s most sophisticated investors in their most important real estate deals.  I question whether the Court would have reached the same conclusion had the wife been left with the worthless investments. 

The only good news is that Bernie Madoff will be spending the rest of his life in prison as part of a 150-year sentence.  Unfortunately for Mr. Madoff, there are several inmates who apparently have a sense of rough justice that is even stronger than the Judge that slammed Steve Simkin.

AVVO Assigns Superb Rating to Attorney Richard J. Mockler

The lawyer rating website AVVO.com has assigned a Superb Rating to Attorney Richard J. Mockler.


AVVO Rating

Innovative Family Law Attorneys Open New Office in Tampa, Florida

The family and business litigation law firm of Richard J. Mockler, P.A. has opened its new office in historic Hyde Park. The warm and child-friendly environment is conveniently located at 305 S. Magnolia Ave., Tampa, FL 33606.

Tampa, FL (PRWEB) December 10, 2009 –- The law firm of Richard J. Mockler, P.A. is pleased to announce the opening of its new Tampa office, located in beautiful Hyde Park. The office has a dedicated play area for children, and offers a warm, comfortable setting to meet with your attorneys or mediate family law matters.

Our attorneys approach every case with the same passion. We consult every client on their unique goals and interests, because no strategy fits all cases.

The Firm represents individuals in divorce, military divorce, and other family law matters, including cases involving child custody, child support, prenuptial agreements, alimony, equitable distribution, relocation, and more. The Firm also represents business litigation clients in partnership disputes and civil litigation involving fraud, misrepresentation, breach of contract, tortious interference, theft of trade secrets, breach of fiduciary duty, and other commercial claims. Attorneys Richard J. Mockler, Amy Bandow, and Adam B. Cordover are experienced in helping clients protect their rights and interests in complex legal battles and through life-changing circumstances.

The Firm’s lawyers have substantial experience working at the nation’s largest and most prestigious law firms representing high-profile clients in their most important legal matters. “Our attorneys approach every case with the same passion. We provide the same representation to a mother trying to protect her family that we offer to the CEO of a major company. We consult every client on their unique goals and interests, because no strategy fits all cases. Our job is to help clients understand their options and pursue their cases diligently without wasting valuable resources on unnecessary conflict and needless litigation,” added shareholder Richard J. Mockler.

Richard J. Mockler is a family law attorney and business litigator that graduated from the University of Florida’s Levin College of Law with honors, where he was elected President of the school’s Student Bar Association and selected as the Student of the Year in 2000. Mr. Mockler also earned a Master of Laws degree in Taxation from the University of Florida’s Graduate School. He started his career in Miami for a Wall Street law firm representing investment banks, major financial institutions, and other multinational companies. Prior to starting his own practice, Mr. Mockler also worked at Florida’s two largest law firms.

Amy Bandow is a Tampa divorce lawyer practicing primarily in the area of marital & family law. Ms. Bandow graduated from the University of Florida’s Levin College of Law. Prior to joining the Firm, she also worked in the litigation group at one of Florida’s largest law firms representing public companies and other institutional clients in high-stakes litigation matters.

Adam B. Cordover is a graduate of The American University in Washington D.C., where he earned his Juris Doctor and Master of Arts in International Affairs. Mr. Cordover is experienced in the areas of divorce, adoption, dependency, paternity, and child support. In February 2009, the LAWYER Magazine recognized Mr. Cordover for his service to the community. Among other things, he volunteers through Bay Area Legal Services and the Guardian Ad Litem Program.

For more information or to consult a Tampa divorce lawyer, business litigator, or family law attorney, regarding divorce, military divorce, child custody, time-sharing, parenting plans, child support, division of assets,prenuptial agreements, alimony & spousal support, adoption, and other services, contact our office at 813-443-4634.

Please visit us on the web:
http://www.FamilyLawRights.com.

Please also visit our blogs and other sites:
http://familylawrights.blogspot.com
http://militarydivorcelaw.blogspot.com

Military Divorce Rate On the Rise

According to the Defense Manpower Data Center, the divorce rate for married service members increased by more than 38% from September 2001 to September 2009.

In 2001, the divorce rate for married service members was 2.6%.  By 2008, the military divorce rate had increased to 3.4%.  For 2009, that rate increased to 3.6%.  The rate for military women is an astonishing 7.7%, while the rate for men is 3%.

According to Joe Davis, spokesman for the Veterans of Foreign Wars, when a married couple is faced with "eight years of war, preparing for war, being at war, coming home and having to think about going back to war again — and when you have children — it just has a tremendous impact on the family unit."

April Cunningham, a spokeswoman for the department of defense, referred to the increase over last year as "relatively small."  According to my math, the overall rate increased by 6% in a single year.  If you told me my taxes were going up by 6%, I would not consider that increase "relatively small."

Some people criticize that the actual military divorce rate is much higher due to the inaccurate manner in which the defense department counts divorces as the difference each year between the number of married service members.


This would not come as a surprise, since a recent field survey in Iraq showed that nearly 22 percent of young combat soldiers questioned said they planned to get a divorce or separation.  This is a 77% increase over  2003, when 12.4% of young combat soldiers said they planned to get a divorce or separation.

Military Divorce

Social Abandonment is Not Grounds for Divorce

Thank God for no-fault divorce states.  New York actually still requires a reason justifying the divorce.  So much for mere "irreconcilable differences."

Apparently, "social abandonment" is not sufficient grounds for terminating the marriage.  When Novel Davis filed for divorce from her husband, Shepherd, she argued that the divorce should be allowed because he abandoned her - socially.    Among other things, Shepherd refused to eat meals with Novel, celebrate holidays together or attend family functions.

It's a shame, but New York law will require Novel to come up with a better reason before granting her divorce.

Social Abandonment is Not Grounds for Divorce