Can a Prenuptial Agreement Be Invalidated?

Yes, a prenuptial agreement and/or a provision of a prenuptial agreement can be invalidated by the court.

Courts invalidate prenuptial agreements for reasons like their violation of public policy, duress,  a lack of full financial disclosure, or fraudulent financial disclosure.

Section 61.079(7)(a), Florida Statutes (2019), in relevant part, provides: “A premarital agreement is not enforceable in an action proceeding under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that . . . [t]he agreement was the product of fraud, duress, coercion, or overreaching.” Duress is defined as “a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him [or her] to do and act or make a contract not of his own volition.” Herald v. Hardin, 95 Fla. 889, 891, 116 So. 863, 864 (1928) (citation omitted). In order to prove duress, “[i ]t must be shown (a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side.”City of Miami v. Kory, 394 So. 2d 494, 497 (Fla. 3d DCA 1981).Thus, duress involves a “dual concept of external pressure and internal surrender or loss of volition in response to outside compulsion.” Id. (quoting 17 C.J.S. Contracts§ 168 (1963)).“It is not . . . duress for the proponent of the agreement to make it clear that there will be no marriage in the absence of the agreement.” Eager v. Eager, 696 So. 62d 1235, 1236 (Fla. 3d DCA 1997). Nonetheless, a party may not exploit another “for his [or her] own pecuniary advantage.” Berger v. Berger, 466 So. 2d 1149,1151 (Fla. 4th DCA 1985) (emphasis in original) (citing Paris v. Paris, 412 So. 2d 952 (Fla. 1st DCA 1982)).

For instance, in Zeigler v. Natera, the Third District Court of Appeals upheld a trial court ruling invalidating a prenuptial agreement where it was first presented to the fiance less than a week before the wedding date, signed on the eve of the parties wedding, and was not accompanied by a full and complete financial disclosure.

The parties planned to marry in Venezuela. Six days before their wedding, the husband presented the wife with a draft of an antenuptial agreement. At the time, the wife was four months pregnant with their second child. The only financial disclosures contained within the document were perfunctory references to the husband’s ownership of certain nominal non-convertible bearer shares with corresponding assigned nominal values. The agreement did not provide for equitable distribution or alimony. The husband allowed the wife to peruse the document and then assured her that he would furnish full financial disclosures prior to the wedding. The day before the wedding, having not yet provided any financial documentation, the husband threatened to cancel the ceremony if the wife did not.  Although it appears that the trial judge considered both unconscionability and duress in invalidating the agreement, as a finding of duress is amply supported by the record evidence, any error as to the unconscionability analysis does not dictate reversal. Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“[I] f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).  The agreement did not contain an express waiver of any right to disclosure.

No two cases are identical and you will want to have your prenuptial agreement prepared and/or reviewed for validity and enforceability by a lawyer knowledgeable in the area.

 

National Vaccine Injury Compensation Program Lawyer

To be compensated by the National Vaccine Injury Compensation Program, you must file a petition with the U.S. Court of Federal Claims.   Vaccine attorney, Robert Hanreck is admitted to practice in the United Stated Court of Federal Claims and has assisted clients with National Vaccine Injury Compensation Program claims.

The National Vaccine Injury Compensation Program covers most vaccines routinely given in the U.S.

For a vaccine to be covered, the Centers for Disease Control and Prevention (CDC) must recommend the category of vaccine for routine administration to children or pregnant women, and it must be subject to an excise tax by federal law.

A vaccine claim must usually be brought within 3 years in the case of personal injury or 2 years in the case of wrongful death.

An individual brings a claim by filing a petition.  It is important to gather up all of the medical records relating to the years immediately preceding the vaccination, the vaccination itself, and the injuries caused by the vaccination and resultant treatment to support the claim.

After an individual files a petition with the U.S. Court of Federal Claims the U.S. Department of Health and Human Services reviews the claim to see if in their opinion it meets the required  criteria for compensation, and makes a preliminary recommendation.

The U.S. Department of Justice develops a report that includes medical recommendation of the Department of Health and Human Services, and their legal analysis and submits it to the Court.

The report is presented to a court-appointed special master, who decides whether the petitioner should be compensated, often after holding a hearing in which both parties can present evidence. If compensation is awarded, the special master determines the amount and type of compensation and orders the U.S. Department of Health and Human Services to award compensation.

The special master’s decision may be appealed and petitioners who reject the decision of the court (or withdraw their petitions within certain timelines) may file a claim in civil court against the vaccine company and/or the health care provider who administered the vaccine.

If you have a question about the vaccine program or want to bring a vaccine injury claim contact our vaccine lawyer to discuss your situation.

 

How Do I Get Alimony?

If you have a need for financial support from your spouse to sustain the standard of living maintained during the marriage, your spouse has the ability to pay, and the marriage was of sufficient length to justify the type of alimony you are asking for, be it bridge the gap alimony, rehabilitative alimony, durational alimony, or permanent alimony,  you start by asking the Court to award you alimony in your divorce petition or counter-petition.

You will then need to develop and present evidence to the court to support the statutory alimony factors in Florida Statute Section 61.08, and the factors applicable to the specific type of alimony you are seeking.

When trying to get alimony it is important to present the right evidence to support the specific type of alimony you are seeking.  For instance, you can not expect to get rehabilitative alimony without presenting a rehabilitative plan to the Court.

The facts of your case  determine what type of alimony you should ask for, what evidence needs to be presented in support of that type of alimony, how the other side will likely defend against your alimony claim, and the amount, and duration of an alimony award.

Depending on the facts of your case you may also be entitled to temporary support during the time the divorce case is going on.

If you have questions about alimony in your case contact us.

 

Florida Supreme Court Adopts the Daubert Standard for the Admission of Scientific Evidence To Replace the Frye Standard

Effective immediately the Daubert standard for the admission of scientific evidence has replaced the Frye standard in Florida.  The legislature previously attempted to do the same thing but it was decided by the Florida Supreme Court that for constitutional reasons it was within the Court’s rule making powers to change the standard for the admission of scientific evidence in Florida’s Courts and not that of the legislature.

The majority opinion of the Florida Supreme Court Opinion Stated in part as to the rationale for the replacement as follows:

“Additionally, as outlined in the Committee minority report, the Daubert amendments remedy deficiencies of the Frye standard. Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589 (holding that the Federal Rules of Evidence superseded Frye). Moreover, also as argued in the minority report, the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”
The following is a link to the full opinion:

Florida Uniform Deployed Parents Custody and Visitation Act

deployed parent child custody What about time-sharing, visitation, custody ,and parental responsibility for a service member’s children when the service member is being deployed?

Florida has adopted the Uniform Deployed Parents Custody and Visitation Act.  Florida Statute Section 61.703 et seq.

The Act has sections that relate to giving notice of deployment, out of court agreements for the period of deployment, the possibility of a non-parent having temporary care-taking responsibility during a deployment, and expedited proceedings where agreements can not be reached out of court so an order can be entered prior to deployment and not during the deployment.

This Act serves to supplement the Service members Civil Relief Act, formerly known as the Soldiers and Sailors Civil Relief Act, which also provides some protections for service members.

If you or the other parent of your child are a service member who is being deployed and you have questions about your legal rights you are welcome to contact us to arrange a consultation with an attorney.

Selected to Expertise, “Best Divorce Lawyers In Miami”

We are please to announce we have been selected by Expertise for 2019 as among the “Best Divorce Lawyers In Miami”.  The selection was made based on reputation, credibility, experience, availability to clients, and professionalism. Thank you to our team of attorneys, staff, and clients.

Expertise Best Divorce Lawyers Miami 2019

How Much Does A Divorce Cost?

Divorce or dissolution of marriage cases can vary dramatically in cost depending on what is involved, complexity, and the amount of work that is required.

In a divorce in which the husband and wife already agree on all matters such as support, property, custody, and child support, a fixed fee may be appropriate, providing the case remains uncontested.

Since legal fees are partly determined by the services rendered, it usually is not possible to determine in advance the total fee for a case that has any contested issues.  In such a case, we would tell you our minimum fee, the amount of time we would credit you for that fee, and our hourly rate and fees beyond that should additional work be required.

Lawyers may not charge contingent fees in divorce cases.  Sometimes in a divorce the court may order the other side to pay all or some of the fees and costs incurred.

In addition to legal fees costs may be incurred.   At a minimum there is a filing fee, unless you can establish indigence.  For instance, the Miami-Dade County Clerk of Court presently charges $409 for the filing of a divorce plus a credit card processing fee.  There can be other court costs associated with issuance of a summons and otherwise.

Litigated cases usually entail costs associated with records requests, subpoenas, and depositions. Where child related issues or mental health issues are contested there may be costs associated with experts in the field and court appointed professionals.  Where financial issues are contested there may be costs associated with experts such as appraisers and forensic accountants.

If you need an estimate of the costs of a divorce please call us on (786) 539-4935 so we can identify the issues in your case and determine if your case qualifies for a flat fee or the amount of the minimum fee that will be required.

What Needs To Be Established For A Domestic Violence Injunction?

To get a domestic violence injunction restraining order it needs to be established the petitioner is a victim of domestic violence or is in imminent danger of becoming a victim of domestic violence.

domesticviolence injunction

Domestic violence includes: any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, (including cyber stalking) aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death of one family or household member by another family or household member. §741.28(2).

In determining whether Petitioner has “reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence,” §741.30(6)(b) requires the court to consider all relevant factors alleged in the petition for injunction for protection against domestic violence, including, but not limited to:

1. The history between the petitioner and the respondent, including threats,harassment, stalking, and physical abuse.

2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.

3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.

4. Whether the respondent has intentionally injured or killed a family pet.

5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.

6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.

7. Whether the respondent has a criminal history involving violence or the threat of violence.

8. The existence of a verifiable order of protection issued previously or from another jurisdiction.

9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.

10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.

Termination Of Alimony Because Of Supportive Relationship

Pursuant to Florida Statutes Section 61.14(b)(1) a court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. The burden is on the obligor to seek the modification and prove by a preponderance of the evidence that a supportive relationship exists.

In Pollack v. Pollack, the Fifth District Court of Appeals for the State of Florida confirmed that a termination of alimony on such grounds should be retroactive to the time of filing a petition for modification rather than the beginning of the supportive relationship itself.

Delaying in the filing a petition for modification can cost you the alimony payments owed between the time of the beginning of the supportive relationship and the time of actual filing of the petition for modification.  A party seeking the modification on such grounds will want just enough time to pass to be able to obtain and present clear evidence of the supportive relationship to the court.

If you need to talk to one of our lawyers about the modification of alimony, please call our office to schedule a consultation.

Modification Of Child Support Limited To Date of Filing Petition For Modification Of Child Support

child support

Child support does not automatically modify when there is a change in circumstances that warrants it, a party must file a supplemental petition for modification of it.  When there has been a substantial change in circumstances warranting a modification of child support a parent needs to file a supplemental petition for modification of child support as soon as possible after the change has occurred as a court can only modify child support from the date of filing of the supplemental petition.

Where courts have attempted to modify child support from before the date of the supplemental petition they have been reversed on appeal.  For instance, in Tatum v. Tatum the Fifth District Court of Appeals for the State of Florida reversed the trial court’s decision to retroactively modify child support to a date prior to the date of the filing of the petition for modification.

If you need to seek an upward or downward modification of child support you need to get your supplemental petition filed as soon as possible after the substantial change in circumstances has occurred so that it the change can be retroactive to as close to the date of the change warranting the modification as possible.