Divorce Corp...the Movie (Remember, it is Only a Movie)

             As I tried tonight, before leaving the office, to get through the daily deluge of emails, I came across one with the words “**Media Alert**” spaced strategically across the top.    The “alert” notified me that this very evening a screening of Divorce Corp. was schedule for the Oaks Premier Theatre in Melbourne, Florida. “Oh, pshaw,” I said (mainly to myself since nobody was left in the office), “it’s already 7:00 and the movie starts at 8:00 and I’m at least two plus hours away…I’ll never make it.”

             So, after I removed my tongue that I had firmly placed in my cheek, and after I went home, and had dinner, I decided to do the next best thing.  I watched a series of YouTube trailers for the movie on my trusty lap top computer.  Well, I’ll tell you, Herbert Morrison’s famous quote on seeing the Hindenburg burst into flames in 1937, could well have been repeated with equal emotion on viewing these trailers…”Oh, the humanity!!!”

    

             Yes folks, I watched quip after quip of investigators, law professors and people who had been involved in horrific divorces (“Oh the humanity!”) go on and on about how horrible the divorce process is and how it ruins lives.

  

             One trailer opens with an individual stating, “Death is easier than divorce.” Does he know?  Has he previously died?  But, yes, I understand, divorce is an end, and emotionally it has been ranked up there with other life shaking events such as the death of a loved one, losing a job, moving from a home, etc.  Why?  Because divorce is a loss, a big loss.  However, let’s remember that it is a husband, or a wife who initiates the divorce process.  Truly, even if things are slow, I’ve never walked up to a married couple and suggested they get divorced to drum up business.  (Though I have had married friends take dibs on having me represent them if they divorced- I hope in jest-but I did consider it a compliment)

   

             Divorce Corp., or the trailers at least, would have you believe that lawyers cause all of the problems associated with divorce. A quote in point,” I came for help and came out with my family destroyed.”

             Well, person (whoever you were) quoted above, let’s start with the fact that you came to an attorney to get a divorce.   You were already destroying your family as it existed before divorce.  No lawyer did that!

             Or another trailer that discussed that the parties to divorce had “so many incentives to lie in Court.”   People have incentives to lie about many aspects of life…not just divorce….to get what they want.  Can I tell when my clients are untruthful?  Sometimes.  Do I let them go before a court and outright lie?  Absolutely not.  In fact, there are ethical cannons that prohibit lawyers from remaining on a case if they know a client is going to lie on the stand.  This trailer suggests that lawyers actually tell clients to make things up.  Now, I am not so naïve to think that this never happens. Clearly, the Florida Bar News   regularly publishes the names of attorneys who have been disciplined by, suspended from or actually disbarred from the Florida Bar.  Rest assured, however, that the names appearing are not all, and in fact are rarely family law attorneys.

                 

             Besides lying, people (and I mean the clients) are frequently less than truthful in disclosing all of their assets.  So what happens?   The other spouse’s attorney is entrusted in trying to discovery what the person is hiding.  Does that take time?  Yes...  Does that take money?  Yes.  But folks, the situation was not created by the attorney.   The true reality is that when people get divorced, usually one of the parties (and often both) is angry, really angry.  And these former “till death do us part” companions, are, at least figuratively, ready to see that death of the other party during the divorce process.

   

             And, the film tells its viewers, divorce lawyers are in it for the money. Really? Did anyone consider that being a family lawyer is a job, and, as with anyone who has a job, we anticipate getting paid for performing that job? (Otherwise I could sit home and write blogs all day, which, really, is a lot more fun).  But truly, it is, in most cases, the parties…the soon to be ex spouses, who exacerbate the situation and cause cases to drag on and cost a heck of a lot more than they would if the parties were up front honest, understood that prolonged fighting only eats up the marital pie and, in a nutshell, can’t get past moving on.  Sure, there are some attorneys who do fuel the fire, but as one of those who likes to extinguish those “hot spots” with rationality, compassion and a true desire to ensure that a client has a fair resolution and that the parties can still talk to each other, I resent being grouped in with the few who do not share my view.

    

             So maybe it’s my time to produce a movie.  I think I’ll call it “The Cause of Divorce…Marriage.” 

    

Prenuptial Agreements…Where there’s a Will, There’s Not Necessarily a Way

Do you know someone who is thinking of getting married.  This time it will last forever….”Till death do us part,” as the vows say.  No worries about divorce, but what about your grandpa’s money when he dies.  No worries.  Grandpa’s will provides for all the grandchildren so we are fine.

It is time to think again. There is a “dirty little legal secret” lurking in Florida (and perhaps other states as well), that creates a trap for the uninformed.  Now, if you continue to read on you will no longer be part of the uninformed and hopefully, neither you nor your loved ones will fall into this potential trap.

Okay, here we go… Let’s say you have two loving grandparents who always told you they would pay for your college (and, if lucky, graduate school) or would give you money for your first house, or Mercedes or whatever…. “We have it all written out in our wills,” they assure you.

Then Grandma passes away.  Grandpa gets a little lonely until he hooks up with the widow “Bernice,” who he meets at the Century Village Clubhouse in Broward County, Florida.   After about a year of Bernice wooing Grandpa with pot roast and apple pie (and heaven knows what else), Grandpa decides to do the honorable thing and tells the family he’s tying the knot.  After seeing the expression on your face  (L), Grandpa takes you aside and assures you that, regardless of what happens, you are still in his will, and he will make good on his promises.

Of course you trust that Grandpa is still thinking with his heart, and all is well.

A month after the wedding, and three weeks after your acceptance to Harvard Dental School, Grandpa dies of a heart attack.  “He died with a smile on his face,” Bernice says. Obviously you are saddened that Grandpa is gone and he won’t have the joy of seeing you graduate from dental school.  But you know that Grandpa will be with you in spirit because, after all, his generosity is helping make this deal happen.

Several weeks later, as that hefty deposit for Harvard is about due, you call Grandpa’s estate attorney and ask if it would be possible to get the necessary funds.

“Unfortunately,” you hear the attorney say, “Your Grandpa’s wife has opted to elect against the will and claim her spousal share of Grandpa’s estate.”

“Huh?” you reply. “Mind translating from legalese into English, please.” 

What you hear next, at least in your life, makes a root canal seem mild.  Essentially, under Florida law, notwithstanding that a spouse has a will, the surviving spouse has certain rights, including the right to take a FULL THIRD of the dead spouse’s entire estate that is subject to probate, REGARDLESS of what the will says.  So once Bernice gets her third, if the distribution per the will of your share of the remaining two-thirds does not cover that Harvard Dental School bill you are, essentially, out of luck.

So what “could” Grandpa have done to prevent these unintended results?  Think hard….like Jeopardy, the questions hints at the answer….  Ding, ding, ding.You got it!  Grandpa could have had Bernice sign a prenuptial agreement that would have waived Bernice’s rights to any of those otherwise inalienable spousal rights under Florida probate code.    Now why would Bernice have agreed to this, you might ask?

Although the list of possible reasons are plentiful, rather than take up megabytes of computer space on this exercise, suffice it to say that with a well crafter prenuptial agreement, the more affluent spouse can still provide for the other spouse and still ensure that his or her intent for other relatives is carried out.

Now, obviously, the completely fictitious example above (got to include those legal disclaimers, folks) is merely once instance where a person believes the provisions in  his or her will to be ironclad, and that is simply not the case.  An uncle, who never had kids and wants to leave all of his money to his nieces and nephews, (and does so in his will), marries a wealthy woman (who doesn’t need his money).  The uncle passes and the family discovers that she gained most of her wealth by taking other’s money including a third of the nieces’ and nephews’ in this case.

The moral of the story is simple….wealth is not the sole consideration for getting a prenuptial agreement.  In fact “wealth” may not even be a consideration at all.  It is about resolving matters as the parties intend.

So, if you or someone you know (who might want to include you in his/her will) has announced an engagement during this holiday season, suggest they consult with a seasoned family law attorney about a prenuptial agreement. Often, as I do, the family law attorney will work together with an estate planning attorney before the marriage as the future bride or groom may be able to ensure that his or her intents are carried out through trusts and other estate planning tools. 

So encourage your loved ones (or yourself) to consult with a family law attorney and think before they ink. The money they save may be your own!