Pre/Post-Nups Archives - Goldberg Simpson - Family Law Group https://www.louisvilledivorce.com/tag/pre-post-nups/ When it's time to talk. Tue, 21 Jul 2020 16:39:25 +0000 en hourly 1 https://wordpress.org/?v=6.9.4 https://www.louisvilledivorce.com/wp-content/uploads/2020/07/favicon.png Pre/Post-Nups Archives - Goldberg Simpson - Family Law Group https://www.louisvilledivorce.com/tag/pre-post-nups/ 32 32 Transfer of Real Properties to LLC Did Not Change Their “Separate” Natures Under Premarital Agreement – Published Opinion from Kentucky Court of Appeals https://www.louisvilledivorce.com/2019/10/17/transfer-of-real-properties-to-llc-did-not-change-their-separate-natures-under-premarital-agreement-published-opinion-from-kentucky-court-of-appeals/ Thu, 17 Oct 2019 14:44:31 +0000 http://test-wordpress.jborseth.net/blog/transfer-of-real-properties-to-llc-did-not-change-their-separate-natures-under-premarital-agreement-published-opinion-from-kentucky-court-of-appeals/ Herbener v. Herbener   Husband held separate property, which he transferred to an LLC, which was owned by Husband and Wife. Wife argued that the transfer of the property to the LLC after the marriage transformed the ownership to Husband and Wife’s concurrent ownership. The Court of Appeals held that concurrent ownership is limited to […]

The post Transfer of Real Properties to LLC Did Not Change Their “Separate” Natures Under Premarital Agreement – Published Opinion from Kentucky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

]]> Herbener v. Herbener

 

Husband held separate property, which he transferred to an LLC, which was owned by Husband and Wife. Wife argued that the transfer of the property to the LLC after the marriage transformed the ownership to Husband and Wife’s concurrent ownership. The Court of Appeals held that concurrent ownership is limited to ownership by people, not by an organization. Thus, the transfer of Husband’s separate property to the LLC was not sufficient to change its character to property concurrently owned by Husband and Wife.

 

Wife claimed an interest in Husband’s separate property because of her efforts and work in them. The Court of Appeals held that she waived any such rights in the premarital agreement, as she specifically waived “any claims for services rendered, work performed, and labor expended.”

 

Wife argued that Family Court abused its discretion by awarding Husband attorney’s fees. The Court of Appeals held that that Family Court did not abuse its discretion in awarding Husband attorney’s fees, because an indemnification provision existed in the premarital agreement, which granted attorney’s fees to a non-prevailing party who made a claim to the prevailing party’s separate property, and Wife made a claim on Husband’s separate property, which did not prevail.

 

Wife argued Family Court abused its discretion by not awarding her 100% of her retirement accounts, because the premarital agreement defined them as separate property. Before trial, the parties stipulated that certain percentages of her retirement account were marital property. There were no conditions to the stipulation, such that it would become moot of the premarital agreement was found to be enforceable. The Court of Appeals held that Family Court divided those accounts as the parties agreed and did not abuse its discretion.

 

Finally, Wife argued that Family Court erred by finding her to be in contempt when she entered the martial residence without notice. Family Court had entered an order permitting Wife peaceful access to the marital residence to retrieve personal property upon twenty-four hours’ notice to Husband’s counsel. Wife entered the marital residence without giving notice. The Court of Appeals held that Wife’s own testimony was sufficient evidence to support a finding of contempt and that Family Court did not abuse its discretion in so finding.

 

Digested by Nathan R. Hardymon

The post Transfer of Real Properties to LLC Did Not Change Their “Separate” Natures Under Premarital Agreement – Published Opinion from Kentucky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

]]> Full Digest of Grasch v. Grasch, Ky Court of Appeals Published Opinion of September 23, 2016 https://www.louisvilledivorce.com/2016/10/03/full-digest-of-grasch-v-grasch-ky-court-of-appeals-published-opinion-of-september-23-2016-now-posted-to-our-blog/ Mon, 03 Oct 2016 17:37:01 +0000 http://test-wordpress.jborseth.net/blog/full-digest-of-grasch-v-grasch-ky-court-of-appeals-published-opinion-of-september-23-2016-now-posted-to-our-blog/ GRASCH v. GRASCH Husband, an attorney, and Wife, who managed his law firm, divorced after a thirty year marriage. After four years of litigation, the parties appealed and cross appealed numerous issues for the Appellate Court to review. Contingency Fees The first issue the Appellate Court addresses is whether contingency fee cases are marital property […]

The post Full Digest of Grasch v. Grasch, Ky Court of Appeals Published Opinion of September 23, 2016 appeared first on Goldberg Simpson - Family Law Group.

]]> GRASCH v. GRASCH

Husband, an attorney, and Wife, who managed his law firm, divorced after a thirty year marriage. After four years of litigation, the parties appealed and cross appealed numerous issues for the Appellate Court to review.

Contingency Fees

The first issue the Appellate Court addresses is whether contingency fee cases are marital property subject to division.  On appeal, Wife argues that the Trial Court erred by finding contingency contracts were not property and granting summary judgment prematurely. The Court of Appeals holds that contingency fee cases are income-generation devices and do not give an attorney any ownership interest, therefore they are not determinate things. As contingency fee contracts are not determinate things, they are not property subject to division by the terms of KRS 403.190. The Court of Appeals holds the Trial Court did not err in finding the contingency contracts were not divisible property, and did not err in granting summary judgment without a valuation of the contracts, as no material issue of fact existed given the contracts were not property.

Dissipation

Next, Wife argues the Trial Court erred by finding Husband did not dissipate marital property. The Court of Appeals holds the Trial Court did not err as Wife did not show dissipation by preponderance of the evidence. The record clearly showed both parties traveled, spent extravagantly, and spent marital funds as they had during the marriage. Neither party showed a clear intent to deprive the other of marital funds.

Maintenance

Wife appealed the Trial Court’s maintenance award arguing the amount was too small and the duration was too short. The Court of Appeals holds the Trial Court did not abuse its discretion and properly analyzed Wife’s monthly expenses and modified certain expenses based on testimony granting reasonable maintenance in consideration of the parties’ lifestyle and the property division.

Husband appealed the Trial Court’s maintenance award arguing Wife should not have been granted maintenance as her property generated enough income to meet her reasonable needs. The Court of Appeals again held there was no abuse of discretion as the Trial Court properly considered reasonable needs in light of the parties situation stating, “what constitutes ‘reasonable needs’ varies based on the marital situation” and cannot be determined in a “vacuum.”

Husband also argued it was an error for the Trial Court to award Wife maintenance beyond her retirement age citing the Weldon case. Weldon v. Weldon, 957 S.W.2d 2283 (Ky. App. 1997). The Court of Appeals disagrees holding Weldon supports the Trial Court’s decision as here the Trial Court awarded a modest amount of maintenance for a definite number of years.

Attorney Fees

Wife appealed the Trial Court’s decision not to award her additional attorney fees. The Trial Court had considered the financial resources of both parties, noted the marital estate had paid for $14,000 of Wife’s fees and Husband had paid $10,000, and found Wife received significant assets before denying Wife’s request for fees. The Court of Appeals affirms the Trial Court’s order as the Trial Court did not abuse its discretion.

Non-marital Interest in Marital Residence

Husband appealed the Trial Court’s calculation of Wife’s non-marital interest in the marital residence. There is no question that Wife invested $125,000 of her nonmarital funds in the parties’ first home. Upon the sale of that home, which increased in value, Wife’s full non-marital share remained. The Court of Appeals did not assign any increase in value to Wife’s nonmarital share, holding that the presumption is that an increase in value is due to marital contributions unless proven otherwise. Wife did not meet her burden of proving the increase in value was due to “general economic conditions rather than marital contributions.”

The parties then purchased land and constructed their second home with $125,000 of Wife’s non-marital funds and the $85,000 of marital funds from the sale of their first home, as well as loans totaling $825,000. The non-marital and marital funds were co-mingled in the construction of the house and the parties ultimately lost money on the home selling it for $878,000, a loss of $157,000. Due to the reduction in the mortgage, the parties received $137,717.02 in proceeds from the sale of the home. The Trial Court award wife her $125,00 non-marital share and order the parties to equally divide the remaining $12,717.02.

Upon review, the Court of Appeals holds that loss due to general economic circumstances should be shared equally between a marital and nonmarital interest. The court applies the Brandenburg formula to reduce the marital and non-marital shares accordingly. As some factual findings regarding a $50,000 marital contribution were unclear, the Court of Appeals remands the issue to the Trial Court to make the relevant finding and use the Brandenburg formula to reduce the Wife’s non-marital share from $125,000 to $51,386.95 or $44,713.32.

Post-nuptial Agreement

Husband and Wife entered into an agreement during the marriage that Wife intended to use $35,000 of her non-marital funds to pay off marital debts. The agreement stated that if the funds could not be clearly traced to a marital asset upon dissolution, Wife would receive the funds from the marital property. Husband, without citing any law, argues on Appeal that the Trial Court erred in awarding Wife the $35,000 because the funds could not be traced. The Court of Appeals holds the Trial Court did not abuse its discretion noting no evidence was offered at trial in support of Husband’s claim other than an expressly refuted assertion by Husband.

Amendment of Findings of Fact and Conclusions of Law

Husband argues the Trial Court erred in amending the findings of fact and conclusions of law pursuant to CR 59.05 citing Gullion v. Gullion  which favorably cited the standards set forth for reconsideration of judgment under the Federal Civil Rules. Gullion v. Gullion, 163 S.W.3d 888 (Ky. 2005). The Court of Appeals find no Gullion error holding the Trial Court did not err by granting the CR 59.05 motion.

Mortgage and Property Taxes

Husband’s last argument is that the Trial Court erred in ordering him to pay the mortgage and taxes on the marital home while Wife resided in the home post-trial. The Court of Appeals reviews only for manifest injustice as Husband’s brief did not conform with the Civil Rules for Appellate Briefs. The Court of Appeals affirms the Trial Court noting its “yeoman’s effort” to divide the marital property pursuant to KRS 403.190(1).

Digested by Elizabeth M. Howell

The post Full Digest of Grasch v. Grasch, Ky Court of Appeals Published Opinion of September 23, 2016 appeared first on Goldberg Simpson - Family Law Group.

]]> Spencer v. Spencer, Prenuptial Agreement https://www.louisvilledivorce.com/2008/02/25/spencer-v-spencer-prenuptial-agreement/ Mon, 25 Feb 2008 17:02:32 +0000 http://test-wordpress.jborseth.net/blog/spencer-v-spencer-prenuptial-agreement/ Spencer v. Spencer, ____ S.W.3d ____ (Ky. App. 2008), 2007-CA-000277-MR Spencer v. Spencer, ____ S.W.3d ____ (Ky. App. 2008), 2007-CA-000277-MR Prior to the parties’ marriage, they executed an Antenuptial Agreement. During the marriage, Charles signed an authorization to transfer stocks, bonds, and money market funds held in his individual account to a new joint account […]

The post Spencer v. Spencer, Prenuptial Agreement appeared first on Goldberg Simpson - Family Law Group.

]]> Spencer v. Spencer, ____ S.W.3d ____ (Ky. App. 2008), 2007-CA-000277-MR

Spencer v. Spencer, ____ S.W.3d ____ (Ky. App. 2008), 2007-CA-000277-MR

Prior to the parties’ marriage, they executed an Antenuptial Agreement. During the marriage, Charles signed an authorization to transfer stocks, bonds, and money market funds held in his individual account to a new joint account at Edward Jones listing the owners as “Charles F. Spencer and L. Faye Spencer” with no mention of survivorship. After Charles died, his estate demanded that Faye release the assets in the account under the terms of the Antenuptial Agreement. The circuit court held, under KRS 391.315 and KRS 391.320, that Faye became the owner of the account on the date of Charles’ death.
The Court of Appeals reversed and remanded, holding that the Antenuptial Agreement did not preclude Charles from giving Faye an interest in the account, but that the use of the conjunctive “and” created a tenancy in common under Kentucky’s common law. Therefore, upon Charles’ death, Faye is entitled to half the account, and his estate is entitled to the other half. The brokerage account does not fall under the definition of “account” utilized in KRS 391.315 and KRS 391.320; therefore, the Court was bound by the common law articulated in Saylor v. Saylor, 389 S.W.2d 904 (Ky. 1965).
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

The post Spencer v. Spencer, Prenuptial Agreement appeared first on Goldberg Simpson - Family Law Group.

]]> Failure To Plead Prenup Is Failure to Plead Affirmative Defense And Bars Court Consideration Of Agreement https://www.louisvilledivorce.com/2007/08/06/failure-to-plead-prenup-is-failure-to-plead-affirmative-defense-and-bars-court-consideration-of-agreement/ Mon, 06 Aug 2007 10:00:00 +0000 http://test-wordpress.jborseth.net/blog/failure-to-plead-prenup-is-failure-to-plead-affirmative-defense-and-bars-court-consideration-of-agreement/ A recent Missouri case holds that a party seeking to enforce a prenup must raise the issues in a pleading. Failure to do so prevents the court from enforcing the prenup. Homan v. Holman, which can be found here. In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and […]

The post Failure To Plead Prenup Is Failure to Plead Affirmative Defense And Bars Court Consideration Of Agreement appeared first on Goldberg Simpson - Family Law Group.

]]> A recent Missouri case holds that a party seeking to enforce a prenup must raise the issues in a pleading. Failure to do so prevents the court from enforcing the prenup. Homan v. Holman, which can be found here.

In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances . . . .

A recent Missouri case holds that a party seeking to enforce a prenup must raise the issues in a pleading. Failure to do so prevents the court from enforcing the prenup. Homan v. Holman, which can be found here.

In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances . . . . A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.[(FN3)]

“An affirmative defense is waived if the party raising it does not plead it.” In re Estate of Kilbourn, 898 S.W.2d 583, 586 (Mo.App. 1995).

Based on the foregoing, we determine the trial court abused its discretion in permitting Husband to introduce the Agreement at trial because Husband failed to assert the Agreement as an affirmative defense in his pleadings. It has long been held that “[m]atters seeking avoidance of a valid contract are affirmative defenses and must be set out in the pleadings.” Id. The terms of the Agreement clearly provide “‘additional facts [other than the statutory considerations of section 452.300] that permit [Husband] to avoid the legal responsibility alleged'” by Wife, i.e., that there was marital property to be divided. Smith v. Thomas, 210 S.W.3d 241, 244 (Mo.App. 2006) (quoting Mobley v. Baker, 72 S.W.3d 251, 257-58 (Mo.App. 2002)). A party that fails to raise an affirmative defense in his pleadings, waives that issue at trial. In re Estate of Kilbourn, 898 S.W.2d at 586.

The post Failure To Plead Prenup Is Failure to Plead Affirmative Defense And Bars Court Consideration Of Agreement appeared first on Goldberg Simpson - Family Law Group.

]]> Post-Nuptial Agreements On the Rise https://www.louisvilledivorce.com/2007/02/08/post-nuptial-agreements-on-the-rise/ Thu, 08 Feb 2007 10:54:00 +0000 http://test-wordpress.jborseth.net/blog/post-nuptial-agreements-on-the-rise/ Post-nuptial agreements, sometimes called mid-marriage agreements, are contracts entered into by a married couple for some reason other than an anticipated divorce or separation. Sometimes they are reconciliation agreements. Most states hold that the standard for enforceability is the same as with prenuptial agreements and must be fair, reasonable, and made with full disclosure. Post-nuptial […]

The post Post-Nuptial Agreements On the Rise appeared first on Goldberg Simpson - Family Law Group.

]]> Post-nuptial agreements, sometimes called mid-marriage agreements, are contracts entered into by a married couple for some reason other than an anticipated divorce or separation. Sometimes they are reconciliation agreements. Most states hold that the standard for enforceability is the same as with prenuptial agreements and must be fair, reasonable, and made with full disclosure.

Post-nuptial agreements, sometimes called mid-marriage agreements, are contracts entered into by a married couple for some reason other than an anticipated divorce or separation. Sometimes they are reconciliation agreements. Most states hold that the standard for enforceability is the same as with prenuptial agreements and must be fair, reasonable, and made with full disclosure.
Last month, the AAML released a survey of its members and some comments:

CHICAGO, Jan. 31. In a recent poll of American Academy of Matrimonial Lawyer (AAML) members, 49% of the divorce attorneys cited an increase in postnuptial agreements during the past five years. Interestingly enough, 58% of the respondents most frequently draw up the agreements as a result of a request made by both parties, rather than it coming from either a husband or wife individually.
Rising in popularity throughout recent years, postnuptial agreements are voluntary marriage contracts between couples who are already married. The terms of postnuptial agreements can cover a wide variety of issues within a marriage, including disputes over potential finances, assets, children, and household chores. Couples can also seek a postnuptial agreement if the financial status of one or both partners changes dramatically after the marriage. The overall goal of the agreements is to help stop any potential conflicts and promote a stronger relationship.
“Postnuptial agreements, where valid, can be a good tool for addressing and solving problems spouses might be experiencing in their marriage,” said Gaetano “Guy” Ferro, president of the AAML. “Having a written document with expectations and obligations clearly set forth reduces the areas of disagreement for spouses and can remove a good amount of stress from everyday married life.”
Among the strangest items included in some postnuptial agreements, AAML members have noted: limits of the future number of children, provisions for pet visitation and care, and the dividing up of cemetery plots in the event of divorce.
About AAML
Founded in 1962, The American Academy of Matrimonial Lawyers (AAML) is committed to encouraging the study, improving the practice, elevating the standards, and advancing the cause of matrimonial law, in order to better protect the welfare of American families.
Comprised of the top 1,600 matrimonial attorneys throughout the nation, members are recognized experts in the specialized areas of matrimonial law, including divorce, prenuptial agreements, legal separation, annulment, custody, property valuation and division, support, and the rights of unmarried couples..

The post Post-Nuptial Agreements On the Rise appeared first on Goldberg Simpson - Family Law Group.

]]> Premarital Agreements and the Young Couple https://www.louisvilledivorce.com/2007/01/16/premarital-agreements-and-the-young-couple/ Tue, 16 Jan 2007 09:00:00 +0000 http://test-wordpress.jborseth.net/blog/premarital-agreements-and-the-young-couple/ Premarital Agreements and the Young Couple by Linda J. Ravdin is a very helpful article at Wealth Strategies Journal. Emotional Issues in Estate Planning: Planning for the Guardianship of Minor Children is the title of a promised January, 2007 article. The founders, editors, and advisory board are an impressive crew. Premarital Agreements and the Young […]

The post Premarital Agreements and the Young Couple appeared first on Goldberg Simpson - Family Law Group.

]]> Premarital Agreements and the Young Couple by Linda J. Ravdin is a very helpful article at Wealth Strategies Journal. Emotional Issues in Estate Planning: Planning for the Guardianship of Minor Children is the title of a promised January, 2007 article. The founders, editors, and advisory board are an impressive crew.

Premarital Agreements and the Young Couple by Linda J. Ravdin is a very helpful article at Wealth Strategies Journal. Emotional Issues in Estate Planning: Planning for the Guardianship of Minor Children is the title of a promised January, 2007 article. The founders, editors, and advisory board are an impressive crew.
Thanks to the Kentucky Law Blog for finding this promising site. Now, if it just had RSS feed. You can subscribe to email updates, but who has time for any more email?

The post Premarital Agreements and the Young Couple appeared first on Goldberg Simpson - Family Law Group.

]]> More On Pre-Nups and Lane v. Lane https://www.louisvilledivorce.com/2007/01/04/more-on-pre-nups-and-lane-v-lane/ Thu, 04 Jan 2007 09:00:00 +0000 http://test-wordpress.jborseth.net/blog/more-on-pre-nups-and-lane-v-lane/ When Lane v. Lane (on pre-nups) was initially rendered, I was taken aback by the division of the court. Our initial posting simply quoted from Justice Lambert’s opinion, Justice Grave’s concurring opinion and Justice McAnulty’s dissent. I thought the quotes quite clearly and tellingly illustrated insight into the high court’s view of marriage rights and […]

The post More On Pre-Nups and Lane v. Lane appeared first on Goldberg Simpson - Family Law Group.

]]> When Lane v. Lane (on pre-nups) was initially rendered, I was taken aback by the division of the court. Our initial posting simply quoted from Justice Lambert’s opinion, Justice Grave’s concurring opinion and Justice McAnulty’s dissent. I thought the quotes quite clearly and tellingly illustrated insight into the high court’s view of marriage rights and responsibilities.

When Lane v. Lane (on pre-nups) was initially rendered, I was taken aback by the division of the court. Our initial posting simply quoted from Justice Lambert’s opinion, Justice Grave’s concurring opinion and Justice McAnulty’s dissent. I thought the quotes quite clearly and tellingly illustrated insight into the high court’s view of marriage rights and responsibilities. The case had the potential to be campaign fodder, and I was prepared that this site would be a sounding board without me interjecting my views. Several women lawyers were vocal that this case illustrated why we needed a woman on the Kentucky Supreme Court. No comments were posted at that time, though.
The case is now final and was digested here. Since then I received these comments by email:
from Mike Stevens, Kentucky Law Blog:
“I must still be a romantic as I really have a problem with antenuptials addressing the property rights acquired in the future and the obligations of the parties in the event of a divorce. Why can’t they simply make sure what is separate property now stays separate and no intent to commingle or make marital, and any maintenance issues be treated like any maintenance issues now based upon standard of living parties became accustomed too, length of marriage, etc.”
“I, for one, will miss the cut through to the chase, common sense, no nonsense analysis offered by Justice Graves in this opinion and his other opinions (Earle v. Cobb, for example). Whether or not you agree with his jurisprudential analysis of what transpired in this agreement or others of similar ilk, you must surely agree that he addressed the real problems presented by antenuptial agreements which must transcend simple contract analysis in the context of families and children.”
“I know you might disagree with me on this but just wanted to bug you a tad. The more marriage is considered a business and financial contractual relationship, the more likely the children end up being marital assets and the parents being marital asses.”
And (this case lit a spark!) in a follow up email giving me permission to post, he added:
“On an aside, the more the courts analyze the covenant of marriage as a civil contract, the harder it will be to dispute the encroachment of civil union contracts of same sex couples. Although, I disagree with the encroachment and object to same sex marriages for a host of reasons (not all Biblical), I can not ignore the logic and precedent being set up by this type of contractual and bargaining analysis premised on unconscionability. For that reason I usually use the term “anti-nuptial contracts”; unequal bargaining, giving up rights without knowing what the rights are and what you are getting in return, purely speculative and without consideration (monetary or personal), and worse yet – a preplanned exit strategy. Hmmmmm. Sounds more like rules of disengagement than an engagement.”
All interesting points.
And, as we posted here, drafting these contracts is not for the faint of heart.
.

The post More On Pre-Nups and Lane v. Lane appeared first on Goldberg Simpson - Family Law Group.

]]> Lane v. Lane https://www.louisvilledivorce.com/2006/12/27/lane-v-lane/ Wed, 27 Dec 2006 08:55:00 +0000 http://test-wordpress.jborseth.net/blog/lane-v-lane/ Lane v. Lane, 202 S.W.3d 577 (Ky. 2006) Issue and Holding: Whether an ante-nuptial agreement, entered into by the parties three days prior to their marriage, can be strictly enforced as written after a nine and a half year marriage and change of circumstances. The Court held no, portions of the agreement were unconscionable at […]

The post Lane v. Lane appeared first on Goldberg Simpson - Family Law Group.

]]> Lane v. Lane, 202 S.W.3d 577 (Ky. 2006)

Issue and Holding:
Whether an ante-nuptial agreement, entered into by the parties three days prior to their marriage, can be strictly enforced as written after a nine and a half year marriage and change of circumstances. The Court held no, portions of the agreement were unconscionable at the time of enforcement.

Lane v. Lane, 202 S.W.3d 577 (Ky. 2006)

Issue and Holding:
Whether an ante-nuptial agreement, entered into by the parties three days prior to their marriage, can be strictly enforced as written after a nine and a half year marriage and change of circumstances. The Court held no, portions of the agreement were unconscionable at the time of enforcement.

Facts:
Three days prior to their marriage, the parties entered into an ante-nuptial agreement. At the time, the wife was 29 years old, a high school graduate, and working at a hotel for $19,000 a year. The husband was a 26 year old college graduate and stockbroker, earning $166,000 a year. Two children were born of the marriage, and the wife stayed at home to care for them and the house. By the time the marriage was dissolved, nine and a half years later, the husband was earning about one million dollars a year and was a partner in a regional brokerage firm.
The ante-nuptial agreement waived the parties rights to claim maintenance if the marriage was dissolved. It also stated that the separate property of each would be deemed nonmarital in the event of divorce. The agreement specifically identified two parcels of real estate, a partnership interest in Edward D. Jones, and the husband’s pension plan, profit sharing plan, and voluntary profit sharing plan through Edward Jones as the husband’s separate property. Further, the agreement stated that if either party defaulted in or breached any obligations within the agreement, the defaulting party would be responsible for attorney fees, court costs, costs of depositions, transportation, lodging, and other related expenses.
The trial court found the portions of the agreement involving waiver of maintenance and the imposition of attorney fees on the defaulting party to be unconscionable. It also found the husband’s 401(k) plan to be marital property and divisible. The trial court ordered that the husband pay $12,000 per month in maintenance for three years. It also ordered that the husband pay the wife $59,271.08 in attorneys fees. The trial court also determined the husband’s general partnership interest in Edward D. Jones to have been acquired during the marriage and divisible. The court valued the interest at $269,876.00.
The Court of Appeals strictly enforced the agreement, reversing the trial court’s award of maintenance and the 401(k) plan. It upheld the award of attorney fees, since it did not regard the wife as a defaulting or breaching party under the agreement. It also upheld the trial court’s valuation of the husband’s general partnership interest in Edward D. Jones.
The Supreme Court granted discretionary review.

Analysis:
Ante-nuptial agreements are not per se invalid as against public policy. Yet, courts may analyze such agreements for unconscionability at the time of enforcement. A trial court may modify or invalidate all or part of an ante-nuptial agreement if enforcement would be unconscionable. Each agreement should be reviewed on a case-by-case basis. However, the more one-sided the agreement is at the time it is made, the more likely it is that courts will invalidate the agreement at the time enforcement is sought.
The Court began by noting that the agreement in the instant case not only prevented the wife from receiving the bulk of the marital estate, but also prevented her from receiving rehabilitative maintenance. It also noted that the wife’s staying home to raise the children and maintain the household should be a substantial factor, along with the affluent standard of living during the marriage, towards rendering the waiver of maintenance under the agreement unconscionable.
The Court reinstated the trial court’s award of maintenance, since the court made appropriate findings of fact to support its ruling that the maintenance waiver was unconscionable. The Court also affirmed the trial court’s award of attorney’s fees, since the award of such fees is within the broad discretion of the trial court. Although, the Court remanded the case back to the trial court to determine whether additional fees should be awarded for costs incurred during the appellate process. The Court also affirmed the trial court’s and the Court of Appeals’ valuation of the husband’s general partnership interest in Edward D. Jones. Finally, the Court did not address the merits of whether the husband’s 401(k) should be marital property, since the wife did not preserve the issue for review.
Accordingly, the Court affirmed in part, reversed in part and remanded the case back to the trial court for further proceedings.

Justice Graves concurred in a separate opinion.
Justice Graves agreed with the majority opinion, but wrote separately to address social policy concerns involving ante-nuptial agreements. He argued that ante-nuptial agreements tend to promote marital instability. He also took issue with the fact that women are often treated unfairly by ante-nuptial agreements. As in the instant case, where under the agreement the wife was to receive the mere satisfaction of bearing two children and the privilege of being a wife, while the husband walked away with the family’s fortune. Justice Graves argued that more emphasis needs to be placed on the contributions made by homemakers to the marital property.

Justice McAnulty dissented.
Justice McAnulty argued that the agreement should be strictly enforced. He stated that the agreement was not unconscionable, just a bad bargain on the wife’s part. He believed there was a lack of evidence that the marriage forced the wife to forego the completion of her education. Since the parties signed the agreement with the advice of independent counsel, it should be fully enforced.

The post Lane v. Lane appeared first on Goldberg Simpson - Family Law Group.

]]> Surge In Prenuptial Agreements https://www.louisvilledivorce.com/2006/10/10/surge-in-prenuptial-agreements/ Tue, 10 Oct 2006 17:59:20 +0000 http://test-wordpress.jborseth.net/blog/surge-in-prenuptial-agreements/ Survey of Nation’s Top Divorce Lawyers Reveals Surge In Prenuptial Agreements Prenups Most Popular With Baby Boomers Survey of Nation’s Top Divorce Lawyers Reveals Surge In Prenuptial Agreements Prenups Most Popular With Baby Boomers CHICAGO, Oct. 10 /PRNewswire/ — An overwhelming 80% of divorce attorneys cited an increase in prenuptial agreements during the past five […]

The post Surge In Prenuptial Agreements appeared first on Goldberg Simpson - Family Law Group.

]]> Survey of Nation’s Top Divorce Lawyers Reveals Surge In Prenuptial Agreements
Prenups Most Popular With Baby Boomers

Survey of Nation’s Top Divorce Lawyers Reveals Surge In Prenuptial Agreements
Prenups Most Popular With Baby Boomers

CHICAGO, Oct. 10 /PRNewswire/ — An overwhelming 80% of divorce attorneys cited an increase in prenuptial agreements during the past five years in a recent poll of American Academy of Matrimonial Lawyer (AAML) members. In addition, 65% of those surveyed answered that prenuptial agreements are most often sought by men and women in the age range of 40-60 years old, revealing that people in the Baby Boomer generation are currently the most likely to request the contracts.

“It can be a sensitive subject, but in the same way you would discuss your future goals and dreams with a partner, prenuptial agreements can often represent the best way to ensure the needs of both parties are considered in the event of divorce,” said Cheryl Lynn Hepfer, president of the AAML. “A married couple hopes never to have to enforce the terms of a prenup, but they also realize divorce proceedings could be much more unpleasant without such an agreement in place.”

In a survey question that asked about the strangest items included in prenuptial agreements, 31% of the attorneys noted provisions being made for a family pet, while some of the lawyers shared even more offbeat areas that have been addressed. These unique agreements have included adultery penalties, terms for frequency of intimacy, limitations on weight gain, and schedules for housekeeping.

About AAML:
Founded in 1962, The American Academy of Matrimonial Lawyers (AAML) is committed to encouraging the study, improving the practice, elevating the standards, and advancing the cause of matrimonial law, in order to better protect the welfare of American families.
Comprised of the top 1,600 matrimonial attorneys throughout the nation, members are recognized experts in the specialized areas of matrimonial law, including divorce, prenuptial agreements, legal separation, annulment, custody, property valuation and division, support, and the rights of unmarried couples.

 

 

The post Surge In Prenuptial Agreements appeared first on Goldberg Simpson - Family Law Group.

]]> Kentucky PreNup: Waiver Of Maintenance Unconscionable At Time Of Enforcement https://www.louisvilledivorce.com/2006/09/22/kentucky-prenup-waiver-of-maintenance-unconscionable-at-time-of-enforcement/ Fri, 22 Sep 2006 20:37:03 +0000 http://test-wordpress.jborseth.net/blog/kentucky-prenup-waiver-of-maintenance-unconscionable-at-time-of-enforcement/ After the Kentucky Court of Appeals decided Blue v. Blue, 60 S.W.3d 575 (Ky. App. 2001), we wondered whether there were any circumstances that could cause an ante-nuptial agreement to be declared unconsionable. Now we have one. In an opinion rendered September 21, 2006, Lane v. Lane, the Kentucky Supreme Court reversed the Court of […]

The post Kentucky PreNup: Waiver Of Maintenance Unconscionable At Time Of Enforcement appeared first on Goldberg Simpson - Family Law Group.

]]> After the Kentucky Court of Appeals decided Blue v. Blue, 60 S.W.3d 575 (Ky. App. 2001), we wondered whether there were any circumstances that could cause an ante-nuptial agreement to be declared unconsionable. Now we have one. In an opinion rendered September 21, 2006, Lane v. Lane, the Kentucky Supreme Court reversed the Court of Appeals and affirmed the trial court finding that the waiver of maintenance was unconscionable at the time the agreement was sought to be enforced. The young couple were ages 26 and 29 at marriage, when she earned $19,00 per year and he earned $166,000 per year. By the time the divorce petition was filed in 2002, the wife was a stay-at-home mom with two children and the husband earned $1million per year.

After the Kentucky Court of Appeals decided Blue v. Blue, 60 S.W.3d 575 (Ky. App. 2001), we wondered whether there were any circumstances that could cause an ante-nuptial agreement to be declared unconsionable. Now we have one. In an opinion rendered September 21, 2006, Lane v. Lane, the Kentucky Supreme Court reversed the Court of Appeals and affirmed the trial court finding that the waiver of maintenance was unconscionable at the time the agreement was sought to be enforced. The young couple were ages 26 and 29 at marriage, when she earned $19,00 per year and he earned $166,000 per year. By the time the divorce petition was filed in 2002, the wife was a stay-at-home mom with two children and the husband earned $1million per year.

The opinion by Chief Justice Lambert noted,
“The more one sided an agreement appears at the time it is made, the more likely courts are to invalidate the agreement at the time enforcement is sought. Bare-knuckling bargaining is not an appropriate practice. As this was a first marriage between younger persons, it is curious that these parties even wanted an ante-nuptial agreement. Their situation differed vastly from the customary and proper ante-nuptial agreement circumstances where parties desire to preserve their assets for their children and grandchildren. But they made their agreement and it will be enforced, subject to judicial scrutiny for unconscionability.”

An attorney fee award of $59,271.08 was affirmed, and that issue was remanded to the trial court for consideration of whether additional attorney’s fees and costs incurred during the appellate process should be granted.

The concurring opinion by Justice Graves, in which Justices Roach and Wintersheimer joined, noted:
“The ante-nuptial agreement in this case is fundamentally unfair in large part because it accords almost no consideration for the wife’s contributions as a homemaker in this marriage. Were we to hold as the dissent suggests it would be foolish, indeed, to continue investing in a marriage through the role of a homemaker as such a contribution would be accorded diminished status under the laws of Kentucky and hence, this court would be contributing to the feminization of poverty.”

The dissent by Justice McAnulty includes the following:
“The highest number that Paula agrees that she received in the trial court’s division of marital property is $233,593.12. I do not disagree that David is in a significantly better financial position with his monthly income, as found by the trial court, of $95,728.33, but I cannot agree with Paula that the amount she received will not support her while she sensibly and responsibly pursues her career interests. Nor can I agree that affluent lifestyle as opposed to a comfortable lifestyle (which I believe Paula and her children can enjoy with her property award plus $3,000 per month child support) should necessarily render the maintenance provision unconscionable.”

Here is the link to the opinion: http://opinions.kycourts.net/SC/2004-SC-000151-DG.pdf

Thanks to Kentucky Cases for the prompt posting of the Supreme Court minutes from which we could easily link to the case.

The post Kentucky PreNup: Waiver Of Maintenance Unconscionable At Time Of Enforcement appeared first on Goldberg Simpson - Family Law Group.

]]>