Rubinstein, Holz & King, P.A. Rubinstein, Holz & King, P.A.
Call Us Today At: 239-332-3400
Main Site Navigation View Our Practice Areas

Fort Myers Family Law Blog

Separation: an option for when you are not ready to divorce

There are Florida couples who find that their romantic relationship is over, yet seeking a divorce is not the right choice at that time. In this situation, simply moving out and living apart may not be the right option, even when living together is not feasible. If you find yourself in a place where you wish to end your marriage but are not yet ready to move forward with a divorce, then a legal separation could be right for you.

Couples who wish to live separately while remaining legally married will find it beneficial to draft a legal separation agreement. This can protect the interests of both parties, as well as outline financial responsibilities, property division and custody.

Prenuptial agreements and financial behavior

Prenuptial agreements are regularly misunderstood, and often the individuals who create them believe that they are magical documents that somehow allow them to stipulate whatever they want to their spouse. However, these agreements are merely legal documents, not magic tomes, and they must respect a number of limitations to what they can dictate. One of the most commonly misunderstood areas in prenuptial agreements are those things that an agreement can dictate about behavior within a marriage as it relates to finances.

A prenuptial agreement is excellent for laying out guidelines for personal and professional responsibility within a marriage. For instance, a strong agreement might include clause that deal with how one spouse is to manage recurring expenses and bills around the house or credit card payments and spending limits. Such guidelines might also lay out how each spouse is expected to contribute to joint savings and investments, and how those savings and investments should be divided if and when a divorce occurs.

Protecting your inheritance from divorce

If you and your spouse are headed toward divorce, you may some concerns about protecting resources you received from your family. Under general divorce laws in every state, including Florida, inheritances are generally protected separately from other types of property. Whereas marital property must undergo fair division in a divorce, inheritances usually do not qualify as marital property. However, there are some circumstances that can complicate this issue.

Let's suppose you and your spouse have been married for a few years when one of your relatives passes away and leaves you an inheritance of $100,000. Under the law, that money probably does not count as marital property — unless you commingle these funds with other marital property. If you choose to spend the inheritance on property of some kind, that property generally becomes marital property.

A poorly made prenuptial agreement protects no one

A prenuptial agreement is only an invitation for greater conflict both inside and outside of your marriage if it is carefully, professionally crafted. Far too many couples have created faulty prenups and seen them crumble when they were needed. If you and your future spouse are considering creating a prenuptial agreement, be sure to take all the proper precautions to ensure that it is valid and dependable.

There are, generally speaking, two basic kinds of faults that undermine prenuptial agreements. Many well-intentioned couples either create legally weak agreements or do not properly give one party enough input in the process. Unfortunately, there is a common misconception that a prenuptial agreement can be whatever the creators want it to be. In fact, there are a significant number of restrictions on what can and cannot go into a valid prenuptial agreement.

Be sure to include your pet in a prenuptial agreement

When putting together a prenuptial agreement, it is important to be very thorough to ensure that no piece of property is left unaddressed — especially property like a pet, which few people remember to think of as "property " in the first place. Creating a fair, well-crafted prenuptial agreement that provides for your pets is a helpful way to prepare for how your marriage will consider your pets and ensure that, even in a worst case scenario, your animal family members are properly provided for.

Pets exist in an interesting realm of estate planning. On the one hand, they are certainly property in a legal sense. However, unlike most other kinds of property, pets require very specific daily upkeep and interaction, much like a child does. A prenuptial agreement should address not only who gets a pet in a divorce, but also how the division of property and assets will provide for the pet's ongoing needs.

Can I avoid unfair taxation after divorce?

The greater the assets within your marriage, the more complicated the terms of your divorce are likely to be. Specifically, many spouses approaching divorce worry that separating their assets may leave them vulnerable to taxation draining away resources that previously enjoyed protection within the marriage. There are no simple answers to this concern, since different types of assets are subject to wildly different taxation, but it is certainly an important factor to consider when negotiating a fair divorce settlement.

The good news is that the law generally allows spouses to transfer property between themselves because of divorce without triggering taxation. However, this is generally contingent on being able to demonstrate clearly that the divorce was the reason that the transfer took place, and does not necessarily protect against capital gains taxation.

Understanding joint custody's implications for your family

Making decisions regarding child custody are some of the most difficult during a divorce. Parents know that the end of their marriage can be difficult for the kids, and for this reason, they often decide to set aside disagreements and pursue a custody plan that allows the children to maintain a healthy relationship with both biological parents.

A joint custody arrangement is a common type of custody plan that can allow you to accomplish this goal. While it won't work in every situation, it could be an option for your family. If you would like to explore how you could share custody or how a joint custody plan may work in your individual situation, you would be wise to seek this information as soon as possible.

Does high asset divorce have to be messy?

When divorce involves significant assets, it is very unlikely that the matter can be settled without proper legal guidance. While some couples who have very few assets may choose to divorce quickly and simply without lawyering up when there are significant assets on the table, that willingness to simply walk away and call "no harm, no foul" is exceptionally rare. So, how can you keep your divorce civil and professional when it involves significant assets?

Money, and the prospect of gaining or losing a great deal of it, has a strange way of bringing out irrational behavior in many people, even those who are otherwise reasonable individuals. In order to keep your divorce on track, it is always wise to enlist the guidance of a divorce attorney who fully understands the intricacies of high-asset divorce and can keep the process focused and professional.

Address creative works in a prenuptial agreement

Creating an effective prenuptial agreement is not a simple matter, and requires both parties to work together to create a truly comprehensive strategy for protecting each other and the relationship. Ultimately, should your marriage end in divorce, there is no substitute for a well-crafted prenuptial agreement. However, if you fail to plan properly, you may still face difficulty in property division. One of the most common areas that couples fail to address in a prenuptial agreement when they are building it is the matter of intellectual property.

The issue may seem far off and irrelevant, but it is a very real problem. In general, anything that you acquire while married possibly is considered marital property. This can absolutely extend to your creations, especially if they are valuable.

Should I take lump sum alimony?

If you expect to receive spousal support after your divorce, you may want to consider pushing for a lump-sum payment rather than receiving ongoing payments from your former spouse. Lump sum alimony can be advantageous for both spouses in many ways, leading to a cleaner separation after the divorce finalizes and giving you greater opportunities for starting fresh on your own.

The principles behind opting for lump sum alimony are similar to taking a lump sum award if you were to win the lottery. When you take a lump sum payment, you not only get your entire payment at one time, you also also avoid the possibility of receiving less if one of you passes away prematurely while in a monthly alimony arrangement.