Question:

I am engaged to a great person we plan to be married in October. We are both college educated. I own my own business and fiancé works as a teacher. Do we need a prenup? I want to talk with my fiancé but it is like discussing the divorce before the marriage. What should I do?

Answer:

Pre marital agreements ( “prenups”) are agreements entered into before the marriage that allow you to predetermine the disposition and character of property, and settle support, attorneys’ fees, retirement issues and other matters. Prenuptial agreements MUST be in writing , MUST be drafted precisely and full disclosure is critical. Don’t wait for the last minute to present the agreement to your [prospective] spouse. If you wait too long, the agreement can be subject to attack when it is needed. Prenuptial agreements can be a sensitive subject because in some ways you’re contracting for the divorce before the wedding.
You draft a prenp when you are in love but for use at a time when emotions flare, trust wanes and regret abounds. Allegations of incomplete disclosure, coercion, duress and threats are often used to attack a prenup. I have drafted many prenups. A comprehensive and well-drafted prenup written by an experienced family law attorney is a must.

Questions:

I was divorced 5 years ago after an 18-year marriage. I pay $3,500 per month in permanent alimony. My ex, although not remarried, has been living with someone for over one year. Can I stop paying alimony because of this relationship?

Answer:

You question raises several issues. First, your alimony would have to be modifiable for the presence of this new relationship to make a difference. Awards of rehabilitative, durational and permanent alimony are generally modifiable unless there is an agreement in place stating otherwise. Based on your question, you ex may be in a “supportive relationship” and the presence of such a relationship has the potential to warrant a reduction in your alimony obligation.

You have to demonstrate a substantial change in circumstances to support an alimony modification. Florida recognizes that an alimony recipient’s participation in a “supportive relationship” may provide the substantial change in circumstances needed to eliminate or decrease the alimony recipient’s need for further support. The law does not define a “supportive relationship” but it lists eleven factors to be considered; nine of which are economic in nature. Some states will find a supportive relationship based solely on cohabitation but not Florida. Florida focuses on the economic impacts of the relationship. An economic contribution by a third-party cohabitant is the essential element to the existence of a supportive relationship.

If your ex is living with someone and receives economic support equivalent to that of a marriage, you may be able to reduce or eliminate your alimony obligation. You will have to demonstrate that the alimony recipient’s needs have actually been reduced. Proving a supportive relationship can be complicated so be sure to have an experienced family law attorney assist you.

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Questions:

I was divorced 3 years ago after a turbulent 7 year marriage. We had one child, Madison, who is ADHD and has some learning disabilities. My ex has contacted Madison’s doctors and therapists without me. The doctors have ordered speech and occupational therapy but he refuses to pay and claims she is fine. She also needs educational testing but he won’t pay for that either. I just want what is best for Madison. He is disrupting her care and our lives. What can I do?

Answer:

In most cases, medical expenses not covered by insurance are split by the parents in proportion to their incomes. Under shared parental responsibility, you and your ex have to confer and agree on medical issues concerning Madison. In all likelihood, you and your ex must confer and agree upon Madison’s medical treatments. If you cannot agree, bring him to court. Sometimes the filing of a motion makes people more reasonable. But if he will not budge, present the clinical facts to a judge, tell him your story and ask the court to order the treatments and testing for Madison. You can ask for an order prohibiting your ex from contacting your Madison’s providers. If your situation is really bad, ask the court to give you control over Madison’s medical care and ask for a modification of child support to so that your daughters medical bills are built into child support. Nevertheless, each case is different so I suggest that you see an experienced family lawyer to discuss your particular situation and determine the relief to which you may be entitled.

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Question:

My wife and I have decided to divorce. We have two children, own properties, retirement accounts and other assets. I do not want a “messy divorce”. What are our options?

Answer:

Some couples choose to cooperate rather than litigate their case. Cooperation works when the parties are honest and fully disclose all information – particularly information about assets, income and liabilities. Without trust and candor litigation may become necessary but you can avoid a trial if you resolve your case by reaching an agreement.
If you set about settling early, your only visit to the courthouse may be for the final hearing. Most cases settle but many cases are litigated for a while before being settled at mediation. Sometimes spouses refuse to cooperate or the history between them makes it difficult to settle. Litigation is often unavoidable if a party conceals income, misstates the value of assets or contests parenting and timesharing issues litigation unavoidable. I have heard more than one person claim to prefer payments to their attorney over payments to their spouse.
I encourage my clients to settle their cases but litigation is sometimes unavoidable or necessary. Settlement can occur early in a case when both parties are open to it. Many factors determine whether and when a particular case can be settled and I can help to guide you through the process and protect your interests.

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QUESTION:

I was divorced 3 years ago. The court set child support but my ex wants to reduce his payment. He had a good job when we were divorced but now he is an “entrepreneur”. Although some things did not pan out, he continues to live well. Is my ex entitled to reduce his child support?

ANSWER:

This issue comes up a lot. Support modification cases are very fact-specific and frequently require an evidentiary hearing to resolve. Nevertheless, there are certain basic rules that apply. The party moving for a modification of child support has the burden of proving three fundamental prerequisites. First, there must be a substantial change in circumstances. Second, the change was not contemplated at the time of final judgment. Third, the change is ‘sufficient, material, involuntary, and permanent in nature. Finally, when the original child support amount is based on an agreement there is a heavier burden on the party seeking a downward modification.

In the case of child support (and alimony) payments do not fluctuate with business cycles. I have had cases where the timing of child support has been adjusted to accommodate significant seasonal fluctuations in income. Temporary reductions of income without a showing that the payor is using his or her best efforts to create income (through employment or otherwise), generally will not support a modification. Promotions from an hourly employee to management may be an exception to the rules but I leave that discussion for another day.

The fact that there is no visible change in his lifestyle may also important, particularly in the absence of a lifestyle change. The impacts of a modification can last for many years. Be sure to have an experienced family law attorney guide you through the process.