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The Basics of Elder Law in Florida

Understanding Florida Elder Law

man and woman working discussing elder law

The term “Elder Law” actually refers to a variety of legal services people may need at various points in their lives. Working with a Florida elder law attorney can help you and your loved ones with the following types of services:

Planning for Incapacity

Planning ahead can help you and your loved ones be prepared in the event a serious illness or incapacity strikes. In an elder law context, planning for incapacity generally involves preparing both financial powers of attorney and medical directives.

  • Powers of Attorney. These legal documents authorize one or more named agents to handle financial and legal matters during lifetime periods of incapacity.
  • Health Care Surrogate. Naming a health care surrogate in a legal document authorizes someone else to be your voice for medical decisions, if you are unable to speak for yourself.
  • Living Will. A living will states your wishes about end-of-life care.

Planning for the Orderly Administration and Distribution of Assets at Death

An important part of elder law is ensuring that estate plans, including wills and/or trusts and beneficiary designations, are current and accurately reflect your wishes. Your estate planning documents should identify how assets should pass at your death, and who should be in charge of that process.

Asset Protection and Planning for Future Care Needs

Another aspect of elder law involves legally protecting assets from the reach of creditors, as well as planning ahead to implement Medicaid planning strategies in case you need nursing home care later in life. Nobody should live in fear of impoverishment because they, or their spouse, needs long-term care.

Understanding how eligibility for government programs works can be a challenge; your elder law attorney should be able to help you understand various options. These may include financing long-term care through insurance, self-funding, or using government programs including Medicaid, Supplemental Security Income (SSI) or veterans’ benefits.

Find Out How an Elder Law Attorney Can Help

The time to begin elder law planning for yourself or for your aging loved ones is now, before an illness or incapacitating crisis occurs. The Judy-Ann Smith Law Firm in Jacksonville helps clients put thoughtful, deliberate plans into motion, helping ensure their wishes will be honored if and when the time comes.

To learn more about the services the firm provides, contact a skilled attorney today online or call 904-562-1369.

Understanding Probate in Florida: Nuts and Bolts

The Nuts & Bolts of Probate in Florida

image of nuts and boltsWhen someone who owned property in Florida dies, some or all of their assets may be subject to probate proceedings. Simply put, probate is the process of settling the deceased person’s estate, including determining to whom assets should pass.

What Assets are Subject to Probate? 

Not all assets need to be administered through Florida probate courts. Assets owned as joint tenants with rights of survivorship with one or more other joint owners will pass outside of probate to the other named joint owner(s). Similarly, retirement accounts, life insurance policies and any other assets for which the deceased person had named beneficiaries will pass to those beneficiaries. Finally, assets inside of a trust will also avoid probate, and will pass according to the terms of the underlying trust agreement. Collectively, these are referred to as “non-probate assets.”

The assets that are generally subject to probate administration include anything the deceased person owned in his or her name alone, without joint owners and without beneficiaries, real estate owned as tenants in common, and assets for which the beneficiary was the deceased person’s estate.

What is Involved in a Probate Proceeding?

The probate process generally involves identifying and safeguarding the deceased person’s assets, identifying beneficiaries and heirs, paying valid debts and claims against the estate, and distributing assets according to what is stated in the deceased person’s will or according to Florida law if there was no will.

photo of stamp with the word Probate Formal Administration vs. Summary Administration

If the value of the deceased person’s estate did not exceed $75,000, exclusive of his or her homestead, or if more than two years have passed since his or her death, the estate may be able to be settled using a streamlined probate process called “summary administration.”

Most other estates that need to go through probate will need to proceed through a formal administration process.

Talk to a Florida Probate Attorney to Learn More

If a loved one has passed away and you believe you may be entitled to an inheritance, talking to a knowledgeable Florida probate attorney is an important starting point. Every situation is different; your attorney will be able to advise you on suggested next steps and can explain whether a probate proceeding will be necessary.

The Judy-Ann Smith Law Firm provides a variety of services, including probate, estate and trust administration. To learn more, call 904-562-1369 or contact the firm online today.

 

Understanding Your Spousal Rights Under Florida’s Elective Share Law

photo of divorce decreeIn the state of Florida, you cannot completely disinherit your spouse. The “Elective Share” provisions (Part II of Ch. 732, Florida Statutes) is designed to protect a surviving spouse from spousal impoverishment because a cruel or vindictive spouse left their entire estate to others.

 

Here are answers to some of the most frequently-asked questions we hear about the elective share:

What is The Elective Share?

The elective share – the amount an otherwise-disinherited spouse can claim – is 30 percent of the elective estate.

In years past, the elective estate was only those assets that passed through the probate estate, excluding things that passed to others through trusts, through joint tenancy or by beneficiary designation. Under current Florida law, however, the elective estate now includes the following assets:

  • Pay on death beneficiary designations
  • Transfer on death beneficiary designations
  • “In trust for” account designations
  • Joint account assets
  • One-half of assets owned as tenants by the entirety
  • Assets inside revocable trusts
  • The cash surrender value of life insurance policies, valued immediately before the date of death
  • Pension plan assets valued immediately before the of death
  • Property transferred to others within one year leading up to the date of death

What Assets are Not Included in the Elective Share?

There are some assets that are specifically excluded from the elective share. Those include property irrevocably transferred before the date of the current law, or before the date of the marriage to the surviving spouse; transfers made with the written consent of the surviving spouse, life insurance policy proceeds beyond the cash value, court-ordered insurance policies, property in a special needs trust, the protected homestead, and the deceased spouse’s interest in community property.

What if The Surviving Spouse Lacks the Capacity to Claim Under the Elective Share?

If the surviving spouse is not able to claim the elective share due to incapacity or incompetence, it can be claimed on his or her behalf by an agent under a valid power of attorney or by a guardian, with approval of Florida courts. 

Are There Time Limits to Claim the Elective Share? 

Yes, the surviving spouse must file an election to claim the elective share “on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death.” Florida Statute §732.2135(1).

A petition for an extension of time to make an elective share may be filed with the court, if needed.

Can the Elective Share be Waived by Agreement?

Yes. Spouses can agree to waive the elective share through a valid prenuptial or postnuptial agreement. 

What Happens if Payment of an Elective Share is Delayed?

Payment of an elective share to the surviving spouse may be delayed for years, especially if litigation is involved, as of July 1, 2017 the law was amended to provide some protection against such delays and states that “any amount of the elective share not satisfied within 2 years of the date of death of the decedent shall bear interest at the statutory rate until fully satisfied, even if an order of contribution has not yet been entered. Contributions shall bear interest at the statutory rate beginning 90 days after the order of contribution.”  Florida Statute §732.2145(1).

Example of How the Elective Share Works

Let’s look at an example that might help illustrate how the elective share works:

Chris has an elective estate of $1.5 million when he dies. His wife, Amy, was named as the beneficiary of Chris’ $600,000 retirement plan account, but he left the rest of the assets to his children and charitable organizations. Because the amount Amy received was more than 30% of the elective estate, Amy cannot receive more by claiming the elective estate.

Using the same example, let’s assume that Chris only left Amy $300,000 of the retirement account. In that case, she could claim the elective share, and she could receive an additional $150,000 (up to a total of $450,000, which equals 30 percent of the total elective estate of $1.5 million.)

Choose The Judy-Ann Smith Law Firm

Married people working on their estate planning strategies should contact an experienced, knowledgeable Florida estate planning attorney. The elective share can be an important consideration in certain circumstances to help structure an inheritance for a surviving spouse and other beneficiaries. It is important to consider the possible implications of various estate planning decisions.

At The Judy-Ann Smith Law Firm, we can help you understand how the Florida elective share might impact your estate plan, and we can help you understand your rights under the law as a surviving spouse. To learn more and to schedule an initial consultation, contact us online or call us at (904) 562-1369.

Using Florida’s Homestead Laws to Protect and Transfer Your Home

image of hands over small model of a house

If you are like most homeowners in Florida, your home is, if not your largest asset, certainly an important part of your overall estate. Florida law provides some protections for your home from the claims of creditors. As long as your home falls under the definition of a “homestead” in Florida, the state constitution says it is exempt from certain judgment creditors’ forced sales. From an estate planning standpoint, it can be comforting to have this protection from creditors.

It’s important to understand when property qualifies, when the exemption does not apply, and how homestead property passes at the owner’s death. 

How Does Property Qualify for the Homestead Exemption?

There are some limitations to what is protected. Property will generally qualify as homestead property if it meets one of the following definitions:

  • A personal residence located within city limits (in a municipality) on up to 1/2 acre, including all buildings on that land; or
  • A personal residence located in the country on up to 160 contiguous acres of land, including all buildings on the land.

A “personal residence” does not need to be a single-family home in order to qualify; manufactured homes, condominiums and mobile homes all may qualify. However, the owner must be a Florida resident and a natural person (including a revocable living trust or a land trust), and must use the property as his or her primary residence. Property you own, but rent out to someone else will not qualify. Similarly, vacation property will not qualify, unless it is your personal and primary residence. 

Understanding When Homestead Protection is in Effect

The most important element of determining whether or not homestead protection applies is the intent of the property owner. If you begin occupying a Florida residence and intend to make it your permanent Florida residence, you have protection under the homestead law. Unlike in some other states, there is no requirement to apply for homestead creditor protection treatment for your property, although you do have the option of filing a document in your county called a “Declaration of Domicile.” 

In order to receive homestead tax treatment, property owners must file paperwork with the county where the property is located. However, the asset protection is available to homeowners whether or not they apply for or qualify for homestead tax treatment. 

No Protection Limits

Except for bankruptcy proceedings as described more fully below, there are no limits to the amount of equity you can protect from judgment creditors under Florida’s homestead exemption. This makes the exemption a powerful estate planning and asset transfer planning tool. Here’s why: a Florida homeowner could decide to use other, non-protected assets to purchase a larger personal residence or to pay down (or pay off) a mortgage on an existing personal residence in order to protect those assets from creditors’ judgment claims. 

As it relates to bankruptcy, there are asset protection limits that apply unless a homeowner has claimed the Florida homestead exemption for at least 40 months before filing for bankruptcy. 

 

What the Homestead Exemption Will Not Do 

Of course, there are some caveats and limits to what you may use the homestead exemption for. While the law provides protections from forced sales to pay off creditors, it does not offer protection from any of the following types of claims or obligations:

  • Outstanding mortgage loans on the property
  • Tax liens for unpaid federal, state or local tax obligations
  • Mechanic’s liens, for unpaid labor and/or materials contractors used to improve your property
  • Liens related to homeowners’ or condo owners’ association dues
  • Civil judgments in the same county as your homestead, recorded before you began occupying the homestead property

Treatment of Homestead Property after the Owner’s Death

Florida laws are designed to protect a surviving spouse from becoming impoverished by a vindictive spouse. If one spouse who owned homestead property in his or her name alone dies, the surviving spouse receives a life estate on the property, with the remainder interest going to the original owner’s children, if applicable. If the decedent was married without children, title will pass to the surviving spouse.

When the decedent leaves both children and a surviving spouse, the surviving spouse can, within six months from the date of the original owner’s death, elect to take a one-half interest in the property immediately, with the other one-half being owned by the deceased owner’s children. These rights apply regardless of what the deceased spouse’s will says, unless the surviving spouse had waived his or her rights to inherit through a prenuptial agreement. In fact, the Florida Constitution says that homestead property cannot be de

vised by will or trust, except to the property owner’s spouse and/or to his or her children, if there was no surviving spouse. In the case of a single property owner without children, the property owner can freely devise homesteaded property. 

Understand How the Florida Homestead Law May Affect Your Estate

If you are a Florida resident and own real estate, the homestead laws may offer important protections and potential limitations on your property. To learn more, consult with an experienced Florida asset protection and estate planning attorney. To schedule an initial consultation. call the Judy Ann smith Law Firm in Jacksonville today at (904) 562-1369, or contact us online

Is It Possible To Dispute A Will In Florida?

When someone you love dies, it can be a highly emotional time for the family. It can be even more difficult if it becomes known that the now-deceased family member left a will that disinherited a child or spouse. When someone seemingly intentionally leaves a loved one out of the will, there can be many questions. Why would she not think of me? Did she do this on purpose? Why did he leave everything to someone else?

In most cases, courts will strictly apply the wishes expressed in a will. There are, however, some situations in which it may be worth disputing a will. Here are three examples of times when it may make sense to dispute a will.

The Decedent was Not Competent to Make a Will

Florida law requires that a person have a basic, minimum level of capacity to make a will. However, it is a low standard. The Florida Supreme Court once stated that “even a lunatic may make a will…in a lucid interval.Murrey v. Barnett National Bank of Jacksonville.

Courts are reluctant to invalidate a will on these grounds, but there have been cases of nefarious caretakers convincing dementia patients to alter a will or sign a new will, leaving everything to strangers. In extreme cases, there may be grounds for fighting a will.

image of Florida will

Technical Deficiencies

Florida law sets forth specific rules for creating a valid will. For instance, there are a few basic requirements for creating a valid will in Florida:

  • You must be 18 or older to create and sign a will
  • It must be written. Florida does not recognize verbal wills
  • Will must be signed by the testator (or another at the testator’s direction)
  • The will must be signed by at least two witnesses while in the presence of each other and of the testator (the person making the will)
  • The person creating the will must acknowledge signing it in front of two witnesses

Undue Influence and Duress

One of the key requirements to create a valid will in the state of Florida is that the testator (person creating the will) must be creating and signing it of his or her own volition, without being pressured to do so. Florida Statutes 732.5165 provides that a will be considered void if it was “procured by fraud, duress, mistake or undue influence.”  In addition, the statute provides that, if a will was revoked under duress, the revocation will not be valid. 

If there are concerns that a loved one’s Will was signed or revoked because someone else was threatening physical harm or was otherwise using coercion, it may be possible to challenge the Will in court. When someone alleges that a will was executed or revoked under duress, the evidence is largely circumstantial.

Florida courts typically examine a variety of factors when evaluating claims of duress. As set out in a 1971 Florida duress case, In re Carpenter’s Estate, 253 So. 2d 697, 704 (Fla. 1971), those considerations include the relationship between the person creating the will and the person who allegedly applied duress, whether that person was present at the time the will was executed or revoked, whether the alleged wrongdoer was involved in recommending an attorney, knew of the contents of the will, gave the attorney instructions about what was to be in the will, whether he or she was involved in lining up witnesses to make the execution of a will valid, and whether he or she was responsible for safekeeping the will after it was executed.

Of course, it is not necessary to answer each of these affirmatively for duress to be proven. And, “yes” answers to these questions don’t by themselves mean that there was duress. Your estate planning attorney can help you understand what measures can protect against later claims of duress or undue influence for your estate planning documents. 

Forgeries

Although rare, some may suspect that a will was created through the use of a forged signature or by the commission of some sort of fraud. Cases of true forgery are rare, especially given the requirement of having two witnesses sign in each other’s presence. However, it can happen.

Can I Lose My Share for Disputing a Will?

Generally, no. Under Florida law, so-called “no contest” clauses in wills are not valid and are not enforced. However, there may be limited exceptions. Likewise, if the will was originally written outside of Florida, courts may apply different laws to the interpretation of such clauses. Every case is unique and should be discussed with an experienced probate attorney.

Suspect Wrongdoing? Want to Dispute a Will in Florida?

If you suspect problems with a Florida will, you should immediately consult with a local probate lawyer who can review the facts and fight to protect your rights. Call the Judy-Ann Smith Law Firm at 904.562.1369 to discuss your case today. 

The Basics of a Jacksonville Divorce

Depending on the couple, a divorce can be easy or rough. Divorce is the permanent end to a marriage. It allows the couple to go their separate ways and be free to start their lives again and date other people.

Types of Divorces in Jacksonville

Although there is only one way to divorce a spouse, there are two ways to accomplish the goal: contested and uncontested divorce. A contested divorce is more complicated and takes longer to obtain. One spouse may not want the divorce or both spouses may want the divorce, but cannot agree on distributing property, child custody/timesharing, or debt division.

A contested divorce does require a final hearing on the unsettled issues. The hearing does not involve a jury. The judge listens to testimony from both sides and any witnesses and the final ruling is then made by the judge.

An uncontested divorce is the fastest and easiest divorce to obtain. Both spouses agree on all divorce-related issues and the judge signs off on the agreement. The spouses do not usually have to go to court to obtain the divorce, if there is a full agreement on all the issues.

Basics of Getting Divorced in Jacksonville

Every state has specific rules to follow before an individual can file a petition for a divorce. One rule is that at least one of the spouses must have lived in the state six months prior to filing for divorce. Another rule is that the marriage must be irretrievably broken. This means that the marriage cannot be repaired.

Florida is a no-fault divorce state, which means either party may seek a divorce simply because one spouse or both do not want to be married anymore. Neither spouse is required to assert or prove that the other spouse has done something wrong to be granted a divorce.

Understanding Divorce Terminology in a Jacksonville Divorce

Beginning the divorce process involves more than just filing the paper work. A divorce, called a dissolution of marriage, is filed at the local circuit court. Within the divorce, many issues must be settled by the couple. If they are not settled by the couple, a judge will settle them for the couple. These issues include:

  • Marital Assets: Any money made, property acquired, or assets obtained during the marriage are called marital assets. They are equitably distributed among the spouses. Any assets, property, or money acquired or made prior to marriage will not be distributed to the other spouse, unless comingling occurred.
  • Marital Liabilities: Debts acquired during the course marriage. Marital debts are equitably distributed. If there is a mortgage on property, the judge may order the couple to split the debt. Any debt that occurred prior to marriage is the sole responsibility of that spouse who acquired that debt.
  • Alimony: Alimony is the amount of money paid by one ex-spouse to another. It is determined by whether either party has an actual need for alimony and whether either party has the ability to pay alimony. The court shall consider factors such as the standard of living established during the marriage, physical condition, age, length of marriage, and others. Alimony is not guaranteed.

A Spouse can Appeal a Divorce Ruling in Jacksonville

After the judge determines who gets what, the divorce is finalized. However, if a spouse does not like the outcome, he or she can appeal the ruling. The appeal goes to the District Court of Appeals. To this, the spouse must file the appeal by the deadline. The appeals court will determine if the trial court made an error or errors regarding its decision.

Contact Judy Ann Smith Law Firm About Your Jacksonville Divorce

Whether you are ready to file divorce or what to understand more about the process, contact us at 904-562-1369.

Mandatory Parenting Classes for Florida Divorces

Mandatory Parenting Classes for Florida Divorces

If you are considering filing for divorce in Florida, you may have heard about the four-hour mandatory parenting classes that are required of divorcing couples with children before a court will allow a divorce to be finalized. Some see this as an intrusion and an inconvenience, but it is simply one of the realities of the divorce process that must be met. An experienced Jacksonville divorce attorney can help you meet all obligations, including making sure that you are in compliance with the parenting course requirement.

Why Require a Class?

According to Florida law, children often suffer from painful negative impacts of divorce, including unintended financial, educational, and emotional outcomes. The law was written to assist parents in making better parenting choices in the context of divorce. The program is designed to provide support and guidance on key issues thought to be most likely to lead to problems for children.

How is the Program Governed?

The Florida Department of Children and Families (DCF) oversees the program, and each course is referred to as a “Parent Education and Family Stabilization Course.” DCF maintains a list of eligible and approved providers who are allowed to certify the attendance of individuals who are required to complete the course.

Providers are limited in what they can discuss in training. Program providers are strictly prohibited from soliciting divorcing parents to become their private clients. Courses can be as affordable as just $25. Providers cannot give medical, psychological, or legal advice.

What Issues are Covered by the Course?

  • Handling legal issues between divorced parents
  • The emotional and psychological impact of divorce on parents and children
  • Family and relationship goals and challenges
  • Financial issues of parenting
  • Child abuse, neglect, and general child welfare
  • Work-life balance and childcare responsibilities

How Long do I Have to Take the Course?

Petitioners filing a new divorce or paternity case in Florida have 45 days from the date of filing in order to complete a parenting course. The responding party has 45 days from the date served with the petition.

Can I be Excused From Taking the Course?

Yes, but given the tight deadline for completing the course, you should contact an attorney right away. The court can only excuse the course requirement for “good cause.” This is determined by the presiding judge in your case.

Can Things I Say in the Course be Used Against Me?

Generally, no.  Of course, specific questions should be addressed with your attorney well before attending a course. However, the law says specifically that “information obtained or statements made by the parties at any educational session required under this statute shall not be considered in the adjudication of a pending or subsequent action, nor shall any report resulting from such educational session become part of the record of the case unless the parties have stipulated in writing to the contrary.” See Fla. Stat. 61.21.(8).

What Happens if I Fail to Take the Course?

Unless excused by the court, the judge can levy serious penalties for refusing to take the course or failing to meet the requirement within the time period allowed. While you may be entitled to an exception, you can be held in contempt of court if you fail to comply with the requirement. In addition to contempt, a judge can restrict parenting access, deny joint parenting in the final order, or even apply financial sanctions, as he or she deems appropriate.

Do I Have to See My Spouse at the Classes?

No. The law is clear that divorcing spouses shall not be required to attend together. In fact, even if they want to attend together, the court can actually prohibit couples from attending together if there is a history of domestic violence. In short, the court has broad power to limit, excuse, or restrict the manner in which couples comply with the course requirement.

Talk to an Attorney

If you are considering filing for divorce or initiating a paternity case in Florida, you should contact an experienced family law attorney. The Judy-Ann Smith Law Firm is available to assist with divorces, custody, and support modification or enforcement throughout the Jacksonville area. Call (904) 562-1369 to get the guidance you need today.

  

How Are Prenuptial Agreements Enforced by Courts of Law?

Prior to marriage, couples might want to have a prenuptial agreement in place to handle the various financial details that can arise in a divorce. Merely understanding what prenuptial agreements are, however, is not enough. Couples who are about to be married must also understand the importance of the agreement and how it can be enforced so that in the event the agreement is tested in a court of law, it will stand up. It is critical to understand that prenuptial agreements cannot be presented at the last minute and must be reviewed by attorneys who decide whether the agreements are agreeable to all involved parties.

 

Requirements of a Prenuptial Agreement

 

There are certain elements that must exist in prenuptial agreements for these documents to be considered lawful. The various terms in a prenuptial agreement must be based on fact and cannot attempt to distorted or fail to omit information to make the prenuptial agreement appear like a better arrangement for the other spouse.

 

All of the elements in the prenuptial agreement must also be legal, which some important elements related to marriage including child support cannot be included in these agreements. Because even one valid clause in a prenuptial agreement has the potential to render the entire agreement invalid, it is essential that the entirety of the agreement be reviewed by Florida law. It is also important to understand that prenuptial agreements cannot be signed under duress, which can also result in the agreements being declared invalid.

 

Some of the most common elements of prenuptial agreements include the following:

 

  • Designation of each spouse’s property and the decision whether that property will be viewed as marital or nonmarital.
  • The division of property and assets during a marriage.
  • Estate planning elements.
  • Responsibility for liabilities associated with a marriage.
  • Selections about what law will apply to decisions regarding a marriage.

 

Signs that a Prenuptial Agreement Is Not Enforceable

 

Because prenuptial agreements have the potential to be declared, not enforceable in the event that any unfair terms are contained in the agreement, it is important to be alert to any signs that a prenuptial agreement contains unfair terms. Some of these signs include the following:

 

  • Too few provisions for a spouse in a prenuptial agreement, this likely means that the other spouse is attempting to conceal or not fully disclose all important elements about the divorce.
  • A potential spouse’s parents might attempt to control the terms of a prenup. Cases where a parent dictates the terms of a prenuptial agreement suggest that a parent might be controlling the terms of a prenuptial agreement.
  • If the prenuptial agreement creates friction between spouses or fails to establish an adequate foundation for marriage, it might be a wise idea to avoid entering a prenuptial agreement.
  • Prenuptial agreements should be avoided if there are not too many terms in the agreement for the other spouse, this is likely a sign that there is a lack of consideration in the agreement.

 

Situations in Which a Prenuptial Agreement Is Not Enforceable

 

Florida courts are reluctant to set aside efforts by individuals to invalidate prenuptial agreements. There are certain situations in which prenuptial agreements are likely to be declared invalid. Courts consistently refuse to acknowledge that regret or remorse is not a strong enough reason to make a prenuptial agreement invalid. Some of the most common reasons why courts declare prenuptial agreements invalid include the following:

 

  • If spouses disagree about the terms of an agreement at the time of signing.
  • In the event that the ex-spouse failed to sign the prenuptial agreement voluntarily, the agreement is likely to be declared invalid.
  • The other spouse lied about their assets, attempted to conceal their earnings, or made any type of statement about their assets that turned out to be false.
  • A person signed a prenuptial agreement as the result of threats or acts of violence.
  • A person takes advantage of a prenuptial agreement through fraud or any other act of unconscionable conduct.
  • The court finds a prenuptial agreement unfair or unreasonable in nature.
  • Parties failed to disclose all of the important details about a prenuptial agreement which most often extends to issues about assets and debt.

 

Consult with a Knowledgeable Family Law Attorney

 

The legal counsel at the Judy Ann Smith Law Firm strives to assist clients in obtaining customized strategies and achieving their goals. Do not hesitate to contact our law office today by calling (904) 562 – 1369 or emailing our office at info@jasmithlawfirm.com. Our legal counsel understands the importance of your case and will begin taking steps today to make sure that your case resolves in a positive manner.

What is a Prenuptial Agreement

Prenuptial Agreement

When couples decide to marry, it is easy to become overwhelmed with romantic feelings and forget the important details about the terms of marriage. Marriage planning, however, should also fully encompass details regarding how property will be shared between a couple. It is a wise idea to take all potential and emotional elements into considerations during marriages. Prenuptial agreements are one type of legal document that are useful to fully protect each spouse’s financial interests. Although a common myth exists associating prenuptial agreements with divorce, In reality, prenuptial agreements can apply to situations other than divorce including cases where one spouse is anticipated to die from an illness. Some parties also refer to prenuptial agreements as antenuptial agreements or pre-marital agreements.

People Who Might Benefit from a prenuptial Agreement

Originally, prenuptial agreements were designed to protect wives and make sure that they received a fair amount of assets in the event of divorce or when a husband died. Instead of being focused on just the wealthy, prenuptial agreements are for many more types of couples than just the rich. Statistics reveal that an increasing number of couples are using prenuptial agreements to achieve various reasons. Some of the types of people who find prenuptial agreements particularly beneficial include the following:

 

  • Avoid arguments that might arise if a divorce occurs by specifying exactly how property will be divided and whether spouses will receive alimony.
  • Clarify Financial Rights. Couples frequently use prenuptial agreements to articulate the various financial rights involved in a marriage.
  • Individuals who want to use prenuptial agreements to pass property to children from previous marriages. Without a prenuptial agreement in these cases, a surviving spouse might have the option to claim a large portion of the other spouse’s property which can result in any involved children receiving significantly less.
  • Sometimes, prenuptial agreements are used to protect one spouse’s debts from the other spouse and can also address various other issues related to financial protection.

Common Elements of a Prenuptial Agreement

One of the most advantageous elements of prenuptial agreements is that the terms contained in a particular prenuptial agreement change based on the wishes of the couple. Some of the terms that can be included in prenuptial agreements include:

  • Assign spouses the responsibilities of various debts involved in the marriage.
  • Decide which spouses will manage banking and business details.
  • Indicate that funds from a certain source belong to one or both spouse as well as what amount.
  • Protection of assets that accumulated in the course of a marriage prior to a new marriage so that children have the opportunity to inherit these assets.
  • Sometimes, couples include non-financial related issues including issues like which spouse is assigned the responsibility of taking out the garbage.
  • Waiver of a new spouse’s rights as a beneficiary of a retirement plan in the event previous spouses or children from earlier marriages are named as beneficiaries instead.

Additional Considerations for prenuptial Agreements in Florida

There are many other important elements of prenuptial agreements that parties who are creating or signing a prenuptial agreement must understand. Without a full understanding of these laws, a person is at risk of discovering that they have signed away important rights in a marriage without meaning to do so. As a result, it is important to retain the services of a skilled attorney if you are interested in creating a prenuptial agreement. One issue that is not affected by prenuptial agreements are arrangements concerning children.  It is also important to understand that in the event a couple separates or a marriage ends, a prenuptial agreement can be abandoned, changed, or revoked. In cases where a marriage is voided, prenuptial agreements are only enforceable to the degree necessary to avoid an inequitable or unfair result.

Speak with an Experienced Jacksonville Family Law Attorney

Even though it is possible to download a prenup from the internet, it is often a good idea to avoid doing so because these prenups will be less likely to successfully stand if challenged and will also likely not state the intentions of the parties clearly resulting in results different than those desired by the parties. At the Judy Ann Smith Law Firm, our goal is to help clients resolve various complicated legal issues that can arise in their lives by creating unique strategies. Call our law firm today by contacting (904) 562 – 1369 or emailing our law office at info@jasmithlawfirm.com for a free consultation. Our legal counsel is ready and willing to help you today.

 

Developing a Parenting Plan

Florida law states that in matters related to child custody, a Parenting Plan must be created to and approved by the court to meet the needs of the individual child. A Parenting Plan is a document that governs the custodial agreement between the parents. In basic terms, a Parenting Plan sets forth how the parties will proceed in all decisions and situations related to the child. The Parenting Plan must at a minimum:



  • Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child;
  • Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
  • Designate who will be responsible for any and all forms of health care. If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child.
  • Designate who will be responsible for school-related matters, including the address to be used for school-boundary determination and registration.
  • Describe in adequate detail the methods and technologies that the parents will use to communicate with the child.

These items are not exhaustive, but are the minimum issues that must be addressed by the Parenting Plan. Other items the parties will want to include should address any unique requirements for raising the child as well as specific needs of the parents.

Due to the issues that must be decided in the Parenting Plan, it is important that both parents cooperate to create a parenting plan concerning how the child will be raised and how each parent will participate in doing so. However, if the parents cannot work together to create a mutually agreed upon Parenting Plan or present a Parenting Plan that the court will not approve, then the court will decide the Parenting Plan to be enforced. Therefore, it is imperative for the parties to work together to have a Parenting Plan that is decided upon by the people it will directly involve and affect. When reviewing a Parenting Plan, the court will consider the following factors:

  • Each parent’s ability to maintain a close emotional relationship with the child;
  • Each parent’s ability to ascertain the specific needs of the child and take the appropriate actions to address those needs;
  • The geographic location of each of the parents in relation to the child;
  • Each parent’s ability to provide a stable residence and home life for the child;
  • The emotional, mental, and physical health of each of the parents;
  • Any evidence of abuse, neglect, or abandonment of the child;
  • The educational and development needs of the child; and
  • Any other facts or circumstances that impact the wellbeing of the child.

The team at the Judy-Ann Smith Law Firm will work with you and if possible, the other parent, in order to develop a Parenting Plan that meets the needs of all parties and children involved in your case. We will work diligently to ensure that this parenting plan is then agreed upon and ordered into effect by the judge.