Prenuptial Agreements
Overview
Definition of a Prenuptial Agreement
Reasons to Have a Prenuptial Agreement
Should I have a Prenuptial Agreement
Enforcement of the Prenuptial Agreement
The Prenuptial Agreement and the I-864
Why Team with Mulder Law
What Former Clients Have Said
Definition of a Prenuptial Agreement;
A Prenuptial Agreement is a contract between two people who plan to marry. The contract is entered into before the marriage license is applied for. All 50 states now allow prenuptial Agreements. Many states use the Uniform Prenuptial Agreement Act (UPAA).
In the State of Florida a Prenuptial Agreement is referred to as the “Uniform Premarital Agreement Act,” and is found at F.S. 61.079. As used in this section, the term:(a) “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. (b) “Property” includes, but is not limited to, an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.
A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.
A Premarital Agreement in Florida may include agreement by the parties related to;
1. The rights and obligations of each of the parties regarding any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The establishment, modification, waiver, or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.(b) The right of a child to support may not be adversely affected by a premarital agreement.
The Premarital Agreement becomes effective upon the marriage of the parties.
After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.
If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
Reasons to Have a Prenuptial Agreement
Couples use Prenuptial aAgreements to Determine the Following Issues:
Financial and Property management or control during the marriage,
How property will be divided in the event of a divorce or death,
Whether one spouse will be entitled to alimony, the amount and duration,
Will one spouse share in the retirement plan, pension, and savings of the other,
Will the spouse be the beneficiary of a life insurance policy,
Will finances be commingled or kept separate,
Define finances and assets brought into the marriage and not acquired during the marriage that is not marital property.
Should I have a Prenuptial Agreement
There is no rule or law that requires you to have a Prenuptial Agreement. Whether you choose to have an agreement is up to you.
Let’s face it, the old saying that love is blind is true. For this reason it is a good idea to discuss the consideration of a Prenuptial Agreement with a trusted friend or family member. If you want to keep your situation private, discuss whether to have an agreement with a marriage counselor or an attorney.
Many people feel that a Prenuptial Agreement means you do not trust your future spouse or you are not willing to give your all to the marriage. It is a difficult conversation to have with your future spouse. However, by having a conversation and/or entering into a Prenuptial Agreement you and your spouse know where you stand when it comes to finances. It can save you from difficult times ahead.
A Prenuptial Agreement can and should work together with a Will. These two documents provide guidance to any children or others that will inherit.
Enforcement
The Prenuptial Agreement goes into effect when the couple is legally married.
Once the Agreement is in effect it can not be modified cancelled or revoked without the consent of both parties in writing.
The Agreement is enforceable in a Court of Law usually in a separation or divorce proceeding.
The Agreement may be enforced or challenged by either spouse.
A Prenuptial Agreement may be evidence when a Will is contested or in Probate proceedings.
Jurisdiction is usually where the couple or one of the parties has a permanent residence for more than 6 months.
Clauses in a Prenuptial Agreement that are NOT enforceable:
Clauses that limit a child support obligation or a child’s right to receive support from both parents.
Clauses that limit or eliminate a parties tax obligation or liability.
Clauses that limit or eliminate the responsibility of the Petitioner who signed the I-864; Affidavit of Support.
The I-864: Affidavit of Support and the Prenuptial Agreement.
I-864: Affidavit of Support
Is a Contract entered into by the Affiant who is usually the Petitioner with the United States Government.
The Contract may be enforced by the Government or by the Beneficiary.
The liability of the Affiant is 125% of the poverty level.
The liability begins when the beneficiary is admitted into the United States based on a Visa granted as a result of meeting the requirements including a financial sponsor.
Support under the Form I-864 lasts until one of the five Terminating Events defined by federal statutes and regulations. Until one of these five events happens, the Form I-864 sponsor is bound by the contract and required to provide support when needed:
1 – The Beneficiary becomes a U.S. citizen.
2 – The Beneficiary has been employed in the United states for 40 quarters (10 years). the record is kept by the Social Security Administration.
3 – The Beneficiary Is no longer a permanent resident and has departed the United States. As long as the individual remains physically within the United States the I-864 remains in effect. The contract would be terminated only if the individual leaves the United States.
4 – After LPR status is revoked by the immigration court, the beneficiary is granted permanent residency in proceedings based on a different I-864.
5 – Death. The death of the beneficiary terminates a sponsor’s obligation under the Form I-864. Death of the sponsor also terminates the contractual obligation, although the sponsor’s estate can be liable for claims up to the time of death.
Prenuptial Agreement
Is a Contract between to people that enter into the contract before a legal marriage. The Contract is in effect and binding when the marriage is entered into according to civil law in the jurisdiction where the marriage takes place.
The Contract may be enforced by either of the parties. In rare occasions a third party may enforce the contract on behalf of one of the parties.
The liability of either of the parties to the Contract depends on the terms of the Contract.
The Contract is terminated upon divorce or death of one of the spouses. However, a spouse may enforce the contract based on the terms as applied to the period of the marriage and the terms in the Contract.
The Government or a Third Party do not have standing to enforce the Contract.
Where the Prenuptial Agreement does not provide for a spouse over 125% of the poverty line a Court may enforce the I-864 over and above the Prenuptial agreement.
A Clause that limits or removes a spouse’s responsibility based on the I-864 will not be recognized by the Court.
Why Team with Mulder Law
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Commitment
The Mulder Law commitment is to follow through with intention and focus. My commitment to my clients is to follow through with a purpose and a plan of action. I will listen to you in defining your purpose and we will build a plan together. The purpose and plan will be put in writing.
I will answer or promptly return your phone calls,
I will meet with you personally,
I will appear personally at your interviews and hearings.
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Experience
There is no substitute for experience. Think of a weight lifter; the more the weight lifter works out the stronger s/he becomes and the more weight s/he is able to lift. It is the same with the practice of immigration law; the more practice the more knowledgeable and skilled the attorney becomes.
I have over 34 years experience and focus on immigration cases that require a waiver. I have developed a skill at identifying purpose, developing a plan, and implementing the plan.
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Passion
I have been practicing law for more than 34 years. At this stage in my career I have narrowed my practice and I am selective in the clients I choose to team with. My practice is narrowed to Immigration cases that require a waiver. If I choose to team with you, your case is my case and your victory is my victory. I will be with you all the way.
If I can not represent you with passion, I will not take you as a client.