Frequently Asked Question: Do I need a prenup?

It is an understandably awkward situation—two people moving toward their wedding date to declare their undying love, through better or worse, through richer or poorer, etc., but before this happens, also negotiating a contract that contemplates a possible divorce.

Describing a prenuptial agreement as a contract is a general definition; however, in short, a prenuptial agreement is a document that dictates the provisions in a divorce. Often this means that instead of relying on Florida law existing at the time of their divorce, the parties have instead decided to create their own set of rules in the event they should divorce. This reason—being able to control how the important aspects of their divorce will be handled—is the main advantage in entering into a prenuptial agreement.

Parties enter into prenuptial agreements for various reasons.   It may be that one or both parties have accrued significant assets prior to entering marriage, and although these assets may be pre-marital, under Florida law, the spouse may be entitled to a portion of those assets. Thus, the parties can contract in a prenuptial agreement that all pre-marital assets remain entirely the assets of the party who had them before the marriage.

Another example is when parties have children from a previous relationship that they would like to leave their assets to once they pass away.   Under Florida law, if there was no will, those assets would first pass to the surviving spouse.  A prenuptial agreement could provide that the surviving spouse waive all rights and interests that they may have had pursuant to the laws governing probate.  A common reason that some parties enter into prenuptial agreements is to determine how the issue of alimony will be addressed in the event the parties divorce. The above are only a few reasons for parties entering into a prenuptial agreement.  There may not even be a distinct reason why a prenuptial agreement is needed, but parties wish to think toward the future.

Keep in mind, there are some issues that cannot be dictated by a prenuptial agreement—-namely, anything having to do with children.  Thus, a prenuptial agreement cannot determine issues of time-sharing (custody), parental responsibility, or child support.   Also, under current Florida law, there are certain temporary rights—temporary support and temporary attorney’s fees—that cannot be waived pursuant to a prenuptial agreement; however, many parties still agree to waive these rights voluntarily within a prenuptial agreement.

There is a misperception that prenuptial agreements carry little weight in the legal world and that if either party expends enough money on challenging the prenuptial agreement, they can undo any prenuptial agreement. To the contrary, courts are very hesitant to undo contracts between parties, and that includes prenuptial agreements. There is an abundance of case law that establishes that a prenuptial agreement may still be binding although one spouse is unable to read English but signs anyway; or a spouse was on anti-depressants, anti-anxiety medications or other similar medications when they signed; or an agreement was signed only a few days before the wedding and the spouse was told that the wedding would be cancelled if they did not sign, etc.

The prenuptial agreement’s provisions directly impact the actions of the parties once married. Thus, depending on the controlling provisions, parties must make decisions as a married couple in terms of how assets are titled, how individual and joint funds are held, how to pay their income taxes, etc. In short, a prenuptial agreement involves developing and continuing a mindfulness toward important financial decisions and purchases during the parties’ life together.  Lastly, although prenuptial agreements are routinely perceived as a one-sided contract that benefits only one party, in truth, prenuptial agreements may be advantageous to both parties should their undying love, die.  At Artemis Family Law Group, we specialize in drafting and analyzing prenuptial agreements, from simpler agreements to more complex ones.  Contact us today to discuss whether and how a prenuptial agreement is something you should explore.

Frequently Asked Question: Does Florida have a presumption in favor of 50/50 time-sharing?

One of the more common, and resilient, misconceptions in Florida family law is the myth that there is a presumption in favor of 50/50 time-sharing (formerly known as custody). While it is true that there have been some legislative attempts to create this presumption, no bill has become law that would create this presumption. There is a statement in Florida Statutes section 61.13 that it is the public policy of Florida that each child be permitted to have “frequent and continuing contact with both parents.” However, this is far from the creation of a presumption of a 50/50 time-sharing arrangement.

Instead, section 61.13 provides the judge a vast amount of discretion in determining the appropriate time-sharing (custody) arrangement for each case. Section 61.13 lists 20 factors that the judge is compelled to consider when making a time-sharing (custody) determination (see Frequently Asked Question: When can a child decide who to live with in Florida? for a more detailed discussion of those factors). Additionally, section 61.13 specifically declares that “[t]here is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule.”

Part of what has caused confusion is the change from the prior term “custody” into two distinct, but related concepts of “time-sharing” and “parental responsibility.” As discussed above, the law does not create a presumption of equal time-sharing. The law does, however, create a presumption in favor of shared parental responsibility. Shared parental responsibility is the idea that both parents are equally involved in the decision-making as it relates to their children and that all decisions are made on a joint basis, or not at all. Shared parental responsibility does not mean that the time-sharing arrangement is 50/50. In fact, it is quite common for both parents to have shared parental responsibility while exercising a time-sharing plan that is far from 50/50.

While it is true that there is no statutory presumption in favor of a 50/50 time-sharing plan, some judges, in the exercise of their broad discretion, will favor time-sharing arrangements that are as close as possible to 50/50. On the other hand, some judges view 50/50 time-sharing plans more skeptically than other arrangements. Therefore, it is important to retain a Florida family law attorney, like those at Artemis Family Law Group, who are aware of each judge’s preferences and skepticism in a dissolution of marriage involving children or other family law cases concerning time-sharing disputes.

Frequently Asked Question: When can a child decide who to live with in Florida?

One of the more common misconceptions that we encounter in family law is the myth that once minor children reach a certain age in Florida, they can simply decide for themselves who to live with and the courts will defer to that preference. The reality is that it is much more complicated than that, as we discuss in more detail below. Quite simply though, children do not get to make their own time-sharing (formerly known as custody) determinations.

When the parents cannot decide on a time-sharing (custody) arrangement with their children, the Court must step in and decide for them. After hearing evidence from both parents, the Court will create a parenting plan which is based on what is in the children’s best interests. The parenting plan is a comprehensive document, which includes a time-sharing schedule.

The law instructs the courts to consider 20 factors in crafting this parenting plan (see section 61.13(3), Florida Statutes). These factors include, but are not limited to:

• each parent’s willingness to honor the time-sharing schedule and to be reasonable when change is required;
• how much parental responsibility would be delegated to third parties;
• each parent’s demonstrated ability to act on the best interests of the child instead of their own interests;
• whether it is in the child’s best interest to maintain continuity with the current living arrangement;
• how much time would be spent traveling in order to effectuate the parenting plan;
• the moral fitness of the parents;
• each parent’s physical and mental health;
• each parent’s demonstrated ability to keep the other parent informed of issues related to the child;
• each parent’s demonstrated ability to stick to a routine for the minor child;
• evidence of child abuse and/or domestic violence;
• evidence of substance abuse.
• “Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.”

In addition to these, and other factors, the courts are also instructed to consider “The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” So, what does this mean and when will the courts actually consider a child’s preference in crafting a parenting plan?

First, the courts are provided an incredible amount of discretion when determining whether or not to consider the preferences of a child in a time-sharing (custody) dispute. The statute does not simply instruct the courts to consider the child’s preference, but requires the preference to be “reasonable” and also only be considered after the court determines that the child has the maturity to express a preference.

Second, there is no specified age in Florida at which the courts will consider a child’s preference. The court will instead decide this based upon the specific circumstances of each case. The older a child is, the more likely the court will consider his or her opinion, but there is still no magic age at which the courts must consider this.

Third, the courts often have strong and justified concerns with eliciting a child’s time-sharing (custody) preferences. The reality is that children’s preferences can be influenced and even manipulated by a parent or be based on things like which parent is the disciplinarian. When a judge does agree to hear a child testify on this matter, it often occurs in chambers as opposed to open court. However, in practice, most judges do not want to hear from the child directly as they do not want to put the child in the position of “choosing” one parent over the other. A better option is to obtain a child’s preferences via the testimony of a guardian ad litem. Additionally, a child therapist is sometimes used to determine a child’s preference.

In sum, most of the time, the courts will not consider the child’s preference in making time-sharing (custody) determinations. If they do, it will be based on the individual circumstances of the case and not on any specific age at which a child will be permitted to make his or her own time-sharing decision.