What does an annulment in Florida really mean? Black’s Law Dictionary defines an annulment as “when an event or judgment is treated as if it never happened” So, an annulment makes a marriage disappear as though it never existed. This means you or your spouse cannot invoke the many rights available in a divorce…because the marriage never happened after an annulment is entered by the courts. If a divorce would be on the whole bad for you an annulment may be an option worth looking into. In my experience, most people want an annulment for personal or religious reasons. “Once a marriage is shown to have been ceremonially entered into it is presumed to be legal and valid” Stewart v. Hampton, 506 So.2d 70, 71 (Fla. 5th DCA 1987) So, once you’re married you have only a few options to annul your marriage: 1. Fraud Fraud is one of the few grounds for annulment. Fraud is the making of an intentional misrepresentation, with knowledge that he other party will rely on it , and attaining the other party’s consent as a result. Basically, lying about something important in order to get the other person to marry you. So, if you want to rely on fraud to annul your marriage, the real question is “was the thing that you were lied to about important enough.” The courts have been through dozens of examples of what is sufficiently important to constitute fraud and what is not. Getting married with no intention of living as husband and wife has been held as fraud. Obviously, not disclosing that you’re still married is a fraud (but it’s also bigamy that we’ll also discuss later) However, failure to disclose a serious medical condition has been held to be not fraud for the purposes of annulment. Tsapelas vs. Tsapelas 69 So. 2d 315 (Fla 1954) Even a situation where a husband concealed his extremely extensive criminal record was held to be not fraud for the purposes of annulment. Savini v. Savini 58 So. 2d 193 (Fla. 1952) But there’s a horrible and weird rule in Florida which stems from that criminal record case. If you consummate (have sex with your spouse) the marriage, you can never use fraud as a basis to annul a marriage. 2. Duress Duress is when there is some level of pressure so strong that it removed the willful consent to marriage of the party asking for the annulment. The duress can’t be just one instance. It has to be throughout the entire process of the wedding. Essentially, the shotgun has to be present at the entire shotgun wedding. 3. Bigamy You can’t be married if you or your spouse are already married. This is bigamy and it is an automatic ground for annulment and probably the basis for 99% of all annulments. It’s even a felony in the third degree in Florida to be married twice. Fla. Stat. Sec 826.01. It is a popular trope that a marriage can be annulled if the spouses have not consummated the marriage (had sex). This is not the case. A marriage is not a two step process that goes as follows: 1) ceremony, 2) sex. A marriage is the ceremony. That’s it. As we discussed above, however, consummation can turn a fraudulent and annullable marriage into a valid one. What happens if a marriage is annulled? Well, neither spouse is eligible for any kind of benefits for spouses. This is especially important as it relates to wills and life insurance policies. This begs the questions “can an annulment happen after a person has passed?” No one knows the answer to this particular question as no court has addressed it yet. Can you ask for support if you’re also asking for an annulment? You can in Florida. Burger v. Burger, 166 So. 2d 433 (1964). While asking for marital support while you’re saying the marriage doesn’t exist sounds contradictory, it actually makes sense because the presumption is that married people are married with the rights of married people until they are declared no longer married. You won’t have to refund the money either if the marriage is found to invalid. Smithers v. Smithers, 804 So. 2d 489 (Fla. 4th DCA 2001) Contact my family law office in Naples, Florida for a free consultation to learn more about whether annulment is an option for you. Via https://divorceattorneynaplesfl.com/can-i-get-an-annulment-in-florida/
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My Naples, Florida lawyers with free consultations are rare but I am one of them. Many other divorce lawyers in Naples do not offer free consultations. Whether offering a free consultation is a signal for the quality (or lack thereof) of a divorce lawyer depends on a lot of factors. Typically, whether a free consultation is offered by a divorce lawyer depends on the kind of consultation you’re looking for. Free Consultations My office here in Naples, Florida offers free consultations largely because I was used to offering free consultations at my Chicago, Illinois family law firm. Chicago’s market was extremely competitive with hundreds and hundreds of divorce lawyers competing for tens of thousands of clients. I am glad to offer a more boutique service here in Naples, Florida but I still provide a very similar free consultation to my Florida clients as i did to my Chicago clients. Standard Advice During A Free Consultation Upon scheduling a free consultation, my staff will typically send you an intake sheet where you can fill out the broad sketches of your financial life (as far as you know) and details about your minor children. Before the consultation, I will have perused the intake form and will ask some very pointed questions about what your goals are after the divorce. Specifically, where do you imagine yourself a year from now? Two years from now? Five years from now? And then, I offer the same advice I offer to everyone: we should begin at the end. “Beginning at the end” means that we should prepare the final documents before we prepare the initial petition for dissolution of marriage. as you would imagine them to look in a perfect world where your spouse would agree to everything you desired (within reason). There is little risk in doing this. The worst your spouse can say is “No” to everything. The best that can happen is that they will simply agree for the sake of expediency (this happens way more often than you’d think). The only risk involved in preparing final documents at the beginning of a case is that you may not have access to all of your financial information immediately. More to the point, you probably don’t have access to all of your spouse’s financial information. Even more the point, you don’t know if you have access all of your spouse’s financial information. Not to worry, the final documents do not have to be complete. They can contain fillable blanks. I usually put bold letters to draw attention to the unknown in my clients’ final documents like “INSERT FINANCIAL INFORMATION HERE.” Upon preparing and approving the final documents for your divorce, I typically give the final documents to my client so they can have them ready when they announce, “I want a divorce.” My clients can subsequently say, “I’ve already talked with a divorce lawyer here in Naples, Florida and he prepared these final documents as an example of what our final agreement would look like.” Being tendered the final documents for a divorce at the moment that you communicate your desire for a divorce may sound cold and calculated but it produces a wonderful effect. The spouse receiving the divorce announcement and the final documents will initially feel extreme and expected anxiety but, upon reading the final documents moments later, will feel that anxiety subside to an acceptable level. The final documents will lay everything out even if some of the clauses are blank because of a temporary lack of information. As you can see even in the worst case scenarios by “beginning at the end” 50% of the work involved in a divorce is often done during the very first step. Paid Consultations Paid divorce lawyer consultations are common in Naples, Florida. Paid consultations are completely appropriate for both the lawyer and the client if the purpose of the paid consultation is to educate the client on what might happen if they did file for divorce. Unlike, a free consultation where the best advice is, “let’s just begin a the end” a paid consultation doesn’t have a real “beginning.” The client who needs a paid consultation needs to educate himself/herself on what will happen in a divorce and what strategies are necessary both now and in the future to ensure the best outcome. Evrery Divorce lawyer in Naples, FL went to an undergraduate university for four years, law school for 3 years and then took a multi-day bar exam to be just certified to answer questions about divorce in Florida. Subsequently, most of us have practiced family law to the exclusion of any other kind of law for years. It is incredibly difficult to provide a detailed strategy in advance of a divorce in just a few moments. In these situations, a paid consultation is absolutely warranted. If the potential client’s goal is to be educated about divorce in Collier County, Florida, I will charge for my time. When educating a potential client on divorce in Naples, Florida, I will not give just a review of their finances and ask what the client would like “in a perfect world” so as to prepare the final documents. I recognize and am extremely familiar that there are numerous strategies a person should consider while considering divorce. Please contact me so we can discuss all these strategies privately. Important Considerations During Any Naples, Florida Divorce Consultation If you are researching divorce online, you are probably familiar with the rule that lawyers cannot have even a consult with an attorney and then subsequently represent the opposing party. This will automatically trigger the thought, “I will just consult with every good lawyer in Naples, Florida and then my spouse won’t be able to hire any of them.” I assure you that this is a futile and counter-productive strategy. If in fact, if you do spend 40+ hours interviewing all of the divorce lawyers in Naples, Florida your spouse will merely end up hiring someone from Lee County or the Miami area. Your spouse’s attorney expenses, including the expense of commuting to Collier County for the court date, may end up being partly your responsibility as all expenses until you are divorced are considered marital expenses to be bourn by both parties. Feel free to contact my Naples, Florida family law office for a free initial consultation to determine if you need representation or a paid consultation to consider all of your options as I have described above. Via https://divorceattorneynaplesfl.com/divorce-attorneys-in-naples-fl-with-free-consultations/?utm_source=rss&utm_medium=rss&utm_campaign=divorce-attorneys-in-naples-fl-with-free-consultations What does “Child Custody” mean in Naples, Florida? From a very broad perspective, the Natural Guardians statute in Florida governs what people think of as custody, or at least how custody is initially determined in Florida. If you are married to your spouse you have joint custody per statute, “The parents jointly are the natural guardians of their own children and of their adopted children, during minority” Fla. Stat. Sect 744.301. Furthermore, “If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries.” Fla. Stat. Sect 744.301. Divorce is contemplated by the statute but not elaborated upon much except to say, “If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians.” Fla. Stat. Sect 744.301. Upon filing a divorce action, the divorce statute takes over from the default assumption that both parents have joint custody. If the parents aren’t married, then the mother has custody until further order of court. “The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.” Fla. Stat. Sect 744.301. Child custody can be determined by Florida courts for children who live in Florida at the time of the filing of whatever action was filed to determine custody. Or, if the child is no longer in Florida, a Florida court can still determine the custody of that child if the child’s home state was Florida within the last 6 months. Fla. Stat. Sec. 61.514 More specifically, to pursue child custody in Naples, Florida the children, themselves, must live in Collier County not just one of the parents. Child custody, as in the right to determine of how to raise your children has been found to be a fundamental constitutional right per the Supreme Court of the United States. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054. While the term “custody” is still used in Florida when referring to guardianship issues (when anyone but the parents is acting as the custodian of the child), the divorce law in Florida has completely eliminated the word “custody” from its statutes. This has been a common trend throughout the United States in order to take the power and taboo of having or losing custody away from the parties and better serve the best interests of the child. In my experience this has been a wonderful development as the public image of having “lost custody” is such a taboo that parties will often fight for the title of custody rather than for the best interests of the child. If the parents disagree about the custody or “parenting plan” of the children, the matter will be resolved by the courts. The procedure the courts use for determining the parenting plan is the same whether the parents of the child were married or not. Determining the parenting time between two parents will be discussed in another article. If a parent neglects, abuses or abandons a child the state, a relative, or even a friend or acquaintance can bring an action to terminate the parental rights, custody, and place the child in foster care or adoption proceedings. This is obviously such an extreme solution that very strict requirements must be met if custody is to be permanently removed from a parent as custody is that parent’s fundamental constitutional right. Custody in Florida can obviously mean many things from total control of the child’s life to having significant parenting time. It’s not as simple as asking a judge, “Please give me custody.” A specific parenting schedule and listing of parenting responsibilities is necessary that goes far beyond filling out a form and checking boxes. Your kids should be the most important thing in your life so spend the extra time and expense to make sure the document governing their parenting is done properly. Contact my Naples, Florida family law office to schedule an initial consultation with an experienced family law lawyer. You’ll feel better when you know what will happen and what can happen in your pending parentage or divorce case. Via https://divorceattorneynaplesfl.com/what-is-child-custody-in-florida/?utm_source=rss&utm_medium=rss&utm_campaign=what-is-child-custody-in-florida I have an English first and last name, I’m 6’2” and I certainly don’t look Spanish. So, people are surprised when I speak Spanish naturally with a pretty good accent (if I do say so myself). Being a Spanish speaking lawyer in Naples, Florida has been a personal and professional accomplishment. What’s more, I can speak and understand Spanish on the telephone. This is something very few non-native Spanish speakers can do effectively. It’s been my pleasure to help Spanish speakers in both Chicago and Naples, Florida resolve their legal issues while communicating with them in their own native language. Frankly, English-to-Spanish computer translators just don’t work. Having seen thousands of translators in and out of court, words and concepts just get glossed over. It takes more time to say something in Spanish that it does to say it English so the translator simply must skip words. Worse yet, the translator won’t be familiar with legal concepts and will get essence of the translation wrong. Beyond that, there is simply not a personal connection when there is a translator between the lawyer and his client. The lawyer is helping a client through the most difficult period in his or her life and a translator makes that process cold and impersonal. My clients have even told me, “Quiero hablar con el dueno del circo no con los monos,” which very impolitely means “I want to talk to the owner of the circus not the monkeys.” Nonetheless, their point is taken. When you’re spending good money for a lawyer, you want to talk to that lawyer not his assistant. I learned to speak Spanish as an adult. I was 28 with my first job as a lawyer in a neighborhood law office in Chicago, Illinois. The neighborhood in question was largely full of Spanish-speaking residents. After a month of seeing Spanish-speakers walk through the door I committed myself to learning Spanish. Luckily, being Canadian, I already spoke French. The grammar system of both languages almost identical and there are lots of the same root latin words. I drove through the Chicagoland area listening to “learn Spanish” tapes in my car. Then I started seeing a tutor for an hour before court every day. Finally, I quit my job and went to a Spanish learning academy in Cuernavaca, Mexico for a month. At the end, I was dreaming in Spanish. I later opened up my own law firm and I’ve always had a solid base of Spanish speaking clients whether they were from Mexico, Puerto Rico, Cuba, Argentina, Guatemala or the Dominican Republic. Today, roughly 25% of my clients are Spanish speakers. It’s my pleasure to help hard working people get through life’s legal problems with the dignity and respect that anyone else would expect no matter what language they speak or where they are from. Because of my Spanish-language clients, I have plenty of experience with immigration issues even though that is not my specialty. I refer immigration cases to other attorneys but if the issue is about immigration and the issue effects a divorce, I know all about it. If you speak Spanish or know someone who needs help that would prefer to discuss their problem in Spanish, please contact me. If I cannot help you or your Spanish-speaking friend, I will find a Spanish-speaking lawyer in Naples, FL that can help. If we can’t find a Spanish-speaking lawyer, I will happily translate Spanish-to-english and vice-versa with an English speaking lawyer so you can get the help you need. Contact my Naples, Florida family law office today. Via https://divorceattorneynaplesfl.com/being-a-spanish-speaking-lawyer-in-naples-florida/?utm_source=rss&utm_medium=rss&utm_campaign=being-a-spanish-speaking-lawyer-in-naples-florida What does an annulment in Florida really mean? Black’s Law Dictionary defines an annulment as “when an event or judgment is treated as if it never happened” So, an annulment makes a marriage disappear as though it never existed. This means you or your spouse cannot invoke the many rights available in a divorce…because the marriage never happened after an annulment is entered by the courts. If a divorce would be on the whole bad for you an annulment may be an option worth looking into. In my experience, most people want an annulment for personal or religious reasons. “Once a marriage is shown to have been ceremonially entered into it is presumed to be legal and valid” Stewart v. Hampton, 506 So.2d 70, 71 (Fla. 5th DCA 1987) So, once you’re married you have only a few options to annul your marriage: 1. Fraud Fraud is one of the few grounds for annulment. Fraud is the making of an intentional misrepresentation, with knowledge that he other party will rely on it , and attaining the other party’s consent as a result. Basically, lying about something important in order to get the other person to marry you. So, if you want to rely on fraud to annul your marriage, the real question is “was the thing that you were lied to about important enough.” The courts have been through dozens of examples of what is sufficiently important to constitute fraud and what is not. Getting married with no intention of living as husband and wife has been held as fraud. Obviously, not disclosing that you’re still married is a fraud (but it’s also bigamy that we’ll also discuss later) However, failure to disclose a serious medical condition has been held to be not fraud for the purposes of annulment. Tsapelas vs. Tsapelas 69 So. 2d 315 (Fla 1954) Even a situation where a husband concealed his extremely extensive criminal record was held to be not fraud for the purposes of annulment. Savini v. Savini 58 So. 2d 193 (Fla. 1952) But there’s a horrible and weird rule in Florida which stems from that criminal record case. If you consummate (have sex with your spouse) the marriage, you can never use fraud as a basis to annul a marriage. 2. Duress Duress is when there is some level of pressure so strong that it removed the willful consent to marriage of the party asking for the annulment. The duress can’t be just one instance. It has to be throughout the entire process of the wedding. Essentially, the shotgun has to be present at the entire shotgun wedding. 3. Bigamy You can’t be married if you or your spouse are already married. This is bigamy and it is an automatic ground for annulment and probably the basis for 99% of all annulments. It’s even a felony in the third degree in Florida to be married twice. Fla. Stat. Sec 826.01. It is a popular trope that a marriage can be annulled if the spouses have not consummated the marriage (had sex). This is not the case. A marriage is not a two step process that goes as follows: 1) ceremony, 2) sex. A marriage is the ceremony. That’s it. As we discussed above, however, consummation can turn a fraudulent and annullable marriage into a valid one. What happens if a marriage is annulled? Well, neither spouse is eligible for any kind of benefits for spouses. This is especially important as it relates to wills and life insurance policies. This begs the questions “can an annulment happen after a person has passed?” No one knows the answer to this particular question as no court has addressed it yet. Can you ask for support if you’re also asking for an annulment? You can in Florida. Burger v. Burger, 166 So. 2d 433 (1964). While asking for marital support while you’re saying the marriage doesn’t exist sounds contradictory, it actually makes sense because the presumption is that married people are married with the rights of married people until they are declared no longer married. You won’t have to refund the money either if the marriage is found to invalid. Smithers v. Smithers, 804 So. 2d 489 (Fla. 4th DCA 2001) Contact my family law office in Naples, Florida for a free consultation to learn more about whether annulment is an option for you. Via https://divorceattorneynaplesfl.com/can-i-get-an-annulment-in-florida/?utm_source=rss&utm_medium=rss&utm_campaign=can-i-get-an-annulment-in-florida People are getting married less and less often in Florida. That doesn’t mean that people are not getting into relations where they rely on each other’s mutual promises, however. A relationship can be whatever you want it to be under Florida law and you can enforce the terms of that relationship in an oral or written cohabitation agreement. What Is A Cohabitation Agreement In Florida? A cohabitation agreement is just like any other contract two people would enter into asking for assurances from each other in the present and future. “The right to contract is one of the most sacrosanct rights guaranteed by our fundamental law. It is expressly guaranteed by article I, section 10 of the Florida Constitution” Chiles v. United Faculty of Florida, 615 So. 2d 671 – Fla: Supreme Court 1993 In the old days, people didn’t want unmarried people contracting with each other…because that looked a lot like prostitution. Today, however, all contracts between unmarried adults in Florida will stand so long as they are not purely for sex. “[A]n agreement for support between unmarried adults is valid unless the agreement is inseparably based upon illicit consideration of sexual services.” Posik v. Layton, 695 So. 2d 759 – Fla: Dist. Court of Appeals, 5th Dist. 1997 Even if the parties are having sex (of course they are) that doesn’t turn a cohabitation agreement into a voidable prostitution/sugar baby contract. “[A]dults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights…. So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose” Marvin v. Marvin (1976) 18 Cal.3d 660, 666 [134 Cal. Rptr. 815, 557 P.2d 106] A written cohabitation contract will always contain non-sexual terms that will make the agreement valid. “A cause of action based on an express contract … is enforceable regardless of the fact that the parties may be cohabiting illicitly as long as it is clear there was valid, lawful consideration separate and apart from any express or implied agreement, regarding sexual relations.” Poe v. Estate of Levy, 411 So.2d 253, 256 (Fla. 4th DCA 1982) Written Cohabitation Agreements In Florida Ideally, a contract should be in writing so the terms of the contract can be memorialized and interpreted. “Because of the potential abuse in marital-type relationships, we find that such agreements must be in writing. The Statute of Frauds (section 725.01, Florida Statutes) requires that contracts made upon consideration of marriage must be in writing. This same requirement should apply to non-marital, nuptial-like agreements.” Posik v. Layton, 695 So. 2d 759 – Fla: Dist. Court of Appeals, 5th Dist. 1997 A mere piece of paper will not be enough to make a cohabitation contract enforceable. “It is elementary that for an enforceable contract to exist there must be an offer, an acceptance, consideration, and sufficient specification of terms so that the obligations involved can be ascertained.” Townsend Contracting v. JENSEN CIV. CONST., 728 So. 2d 297 – Fla: Dist. Court of Appeals, 1st Dist. 1999 The contract and its signatures represent the offer, acceptance of offer and the sufficient specifications but there must be some kind of consideration in addition. Consideration is something of value given by both parties which induces them both to enter into the contract. “Something (such as an act, a forbearance, or a return promise) bargaining for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act.” Black’s Legal Dictionary. Anything can be consideration. Mutual contribution to housing expenses. Cleaning the household. Care of one another. Again, the only thing that can’t be consideration is sex. “[I]f the consideration for the agreement is not sexual intercourse then the mere fact the parties are not married should not ipso facto preclude the parties from contracting according to law.” Poe v. Estate of Levy, 411 So. 2d 253 – Fla: Dist. Court of Appeals, 4th Dist. 1982 A written cohabitation agreement will contain the terms of their ongoing relationship like who pays what percentage of the mortgage. More importantly, a written cohabitation agreement will contain the terms the parties agree to abide by during and after the parties’ separation. Sample language of a cohabitation contract can look like this: “SEPARATION: In the event the Parties separate or no longer wish to live together at MEDITERRA, the parties agree to the following:
Additionally, a written cohabitation agreement can contain instructions if either party becomes incapacitated or dies. There is almost no limit on what can be contracted for between unmarried couples. One of the only limitation is that if the unmarried couple has children, they cannot contract for custody or child support in advance of their break up. Oral Cohabitation Agreements In Florida Most cohabitation agreements are actually oral contracts and not written contracts. So, if you’re living with someone else…you are probably in a cohabitation agreement whether you know it or not. “[N]othing in the statute of frauds, section 725.01, Florida Statutes, requires that [a cohabitation] agreement be in writing.” Armao v. McKenney, 218 So. 3d 481 – Fla: Dist. Court of Appeals, 4th Dist. 2017 “An oral agreement between cohabiting parties, if proved, is enforceable.” Dietrich v. Winters, 798 So. 2d 864 – Fla: Dist. Court of Appeals, 4th Dist. 2001 “An oral contract… is subject to the basic requirements of contract law such as offer, acceptance, consideration and sufficient specification of essential terms.” St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004). The problem with oral contracts is that “a party who asserts an oral contract must prove its existence by a preponderance of the evidence.” St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004). Again, what looks like a purely sexual relationship will not be enough to establish an oral cohabitation agreement. “Mutual promises to live together in a meretricious or illegal relationship are not sufficient consideration to support an agreement of partnership.” Botsikas v. Yarmark, 172 So. 2d 277 – Fla: Dist. Court of Appeals, 3rd Dist. 1965 Other activities that look like cohabitation agreements or the result thereof will establish an oral cohabitation agreement. “[C]o-signing of the note, the pledging of the certificate of deposit and the promise to repay the loan all constituted valid and lawful consideration separate and apart from any express or implied agreement regarding sexual relations” Stevens v. Muse, 562 So. 2d 852 – Fla: Dist. Court of Appeals, 4th Dist. 1990 “When the existence of a contract is clear, the [finder of fact] may properly determine the exact terms of an oral contract.” Perry v. Cosgrove, 464 So. 2d 664 – Fla: Dist. Court of Appeals, 2nd Dist. 1985 Determining the terms of an oral cohabitation agreement is very difficult. The parties will have to testify to what they agreed to orally and corroborate that agreement by proving they abided by the known terms. What a court cannot do is say “This sounded an awful lot like a marriage so I’m going to divide their stuff like they were married.” One appeals court opined that “[i]t appears that the trial court divided the parties’ assets in a manner like an equitable distribution in a dissolution of marriage action. However, we cannot approve of such a division of property between two nonmarital partners under the circumstances of this case. On remand, the trial court should consider what, if any, agreement the parties had concerning the acquisition of assets and should consider what relief may be proper under the theories of law pleaded.” Hustin v. Holmes, 508 So. 2d 535 – Fla: Dist. Court of Appeals, 2nd Dist. 1987 A Florida court cannot order a divorce-like solution for a marriage-like relationship. For an unmarried couple, it will be very difficult to distinguish what was consideration and performance pursuant to the agreement and what was just a living expense they were going to incur anyways. “[C]ontribution toward the mortgage payments on the home during [a relationship] does not entitle [one]…to an equitable distribution of the home as the payments represented no more than her fair contribution to the joint living expenses of the parties.” Moore v. Moore, 490 So. 2d 1342 – Fla: Dist. Court of Appeals, 3rd Dist. 1986 Constructive Trusts And Cohabitation Agreements In A Florida Divorce When there is no specific agreement (virtually all oral agreements) the court can make up an unwritten trust in which to hold the disputed property. This is called a “constructive trust.” “[A] constructive trust is a relationship adjudicated to exist by a court of equity based on particular factual situations created by one or the other of the parties. The element of intent or agreement either oral or written to create the trust relationship is totally lacking. The trust is “constructed” by equity to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem.” Wadlington v. Edwards, 92 So. 2d 629 – Fla: Supreme Court 1957 Establishing a constructive trust is not easy. “We have held that one who asserts the existence of a constructive trust must establish it by proof to the exclusion of all reasonable doubt. A mere preponderance of the evidence is insufficient.” Smith v. Smith, 108 So. 2d 761 – Fla: Supreme Court 1959 A constructive trust looks more to fairness than the terms of the oral agreement…which would probably never be determined with any kind of specificity anyways. “[A] constructive trust may be imposed to do equity between unmarried cohabitants…A cause of action for a constructive trust is maintainable between parties cohabiting illicitly as long as it is clear that there was a valid, lawful consideration separate and apart from any express or implied agreement regarding sexual relations, labor, and material — separate and distinct from spouse-like services — are valid consideration that will support the imposition of a constructive trust.” Evans v. Wall, 542 So. 2d 1055 – Fla: Dist. Court of Appeals, 3rd Dist. 1989 If you’re living with someone and not married to them, you probably need a cohabitation agreement. A cohabitation agreement is a great way to ease your partner into a prenuptial agreement should things get even more serious. Contact my Naples, Florida family law law office today to discuss writing up a cohabitation agreement. Otherwise, you may be bound by the presumed oral cohabitation agreement you’ve already entered…whether you know it or not. Via https://divorceattorneynaplesfl.com/cohabitation-agreements-in-florida/?utm_source=rss&utm_medium=rss&utm_campaign=cohabitation-agreements-in-florida |
About UsDivorce and other family law matters can be stressful. If you are considering a divorce in Florida, it is best to work with an experienced, dedicated divorce attorney. It is very important to get an attorney who can help you understand the legal implications of all your decisions and offer a supportive environment. When picking a divorce attorney, it is always best to work with someone who will help you determine your options, the next steps to take, and where you want to be at the end. Divorce Lawyer Russell Knight and his team of lawyers at The Law Offices of Russell D. Knight in Naples, Florida can help families during their most difficult time. Call us today at (239) 202-0455 to schedule a consultation. ArchivesNo Archives Categories |