Family Law Matters – The Marriage



By request, and in answer to our many clients’ personal need; and also due to the fact that our economy-driven society requires decisions that many times effects each of us, we hope that this legal sounding board (blog) clears-up some misunderstood issues:

ENGAGEMENT – We all want to think that the engagement between two people is an extension of love when one gallant party on bended knee asks for the hand in marriage of the other party; but, in actuality ENGAGEMENT is a legal period that begins with a commitment by one to the other. In the legal sense the engagement act is an unwritten (for the most part) contract that is usually sealed once the offer is made and the other party accepts the offer and binds it with acceptance of a good faith token (engagement ring) that shows/demonstrates intent to marry. An engagement ring (as is legally recognized in almost all jurisdictions, universally) is more than just a symbol of love, it is a binding and sealing of the (unwritten) contract and is given in good faith that the accepting party guaranties fulfillment of the agreement to marry. If in fact, the parties never marry and ‘break-up’ the engagement ring is then to be returned to the giving party as that is the giver’s property and the party returning the engagement ring did not fulfill the promise to marry. Many would-be brides are under the impression that the engagement ring is a ‘gift’ wherein fact it is a legal symbol worldwide recognized as the binding acceptance of intent to marry. If the marriage never takes place, the contract was broken and the original ring giver is entitled to the return of the engagement ring.

In the event where the marriage was consummated the engagement ring is normally not returned to the ring giver, unless for some reason that is included in the divorce (Dissolution of the Marriage Agreement) where it specifies the return of the engagement ring to the giver; otherwise, since the bride fulfilled the obligation by marrying, the ring then-after belongs to the receiver of the engagement ring (spouse).

Many divorcing parties have argued over rights of possession; however, by legal fact, the engagement ring always belongs to the giver until the marriage is fulfilled, as of the date of marriage. Then after the ring belongs to the receiving spouse in fulfillment of the contract between the parties to marry; unless, the giver gives up the right to the ring, willingly.

Another ENGAGEMENT issue is in regard to PRENUPTIAL AGREEMENTS. Because, in our society today, only 45% of marriages survive and succeed as actual long-term commitments, therefore marriage should never be entered into lightly and without consideration of its legal and financial implications. Every state (and especially in Florida) PRENUPTIAL AGREEMENTS are a very sound and very ethical instrument of love between the parties. As attorneys, we craft or design a legal agreement between a couple during the engagement period to bind in an agreement and understanding of what is to be shared going into the marriage, and if the marriage should fail in the future or one of the couple parties should become disabled (due to mental or physical calamity) or unable to perform in the marriage, how there is to be a separation or division of assets acquired in the marriage or that existed before the marriage. This instrument (‘PRENUP’) is never designed to alienate one party from the other, it is designed to protect or insure the marriage understanding and agreement between the parties. Elements within the prenuptial are: a) assets of each individual party; b) liabilities of each individual party; c) anything anticipated to be bestowed upon, or inherited, by each individual party then or in the future; d) children of the individual parties other than children of this particular union of the couple; e) how assets are to be acquired in the future after marriage is consummated; f) how assets are to be divided in the event the marriage fails for any reason; g) obligation of one person to the other during the marriage and after it should end in dissolution, or otherwise; h) how debt is to be decided and how responsibility is to be divided or shared; i) and any special needs, medical or healthcare or special needs, any consideration or future anticipations of the parties, one to the other or jointly shared. As one can see from this categorical detail, and in consideration of wise forethought, a prenuptial is sound legal advice for any person entering into marriage no matter what the current personal financial standing. It gives a basis of an agreement that can actually prevent future arguments or misunderstandings.

MARRIAGE – Is the legal fulfillment of a commitment of the couple. How each party treats or treasures the spirit of that commitment is to be determined over time, short term or long term. The vows exchanged in the wedding ceremony itself may also be considered part of that original contract of marriage, to HONOR, OBEY, BEFRIEND, AND CARE FOR until death do part. Marriage is a very serious contract and by its nature forever obligates one to the other until like all contractual relationships, is legally ended. The original obligation of the marriage continues indefinitely unless defined otherwise in a PRENUP or by Dissolution of Marriage (divorce) by a judge.

Some parties who never entered into a PRENUP consider POST NUPTIAL AGREEMENTS, which basically is the same device as was discussed in the Engagement section above and meets the same goals; however, it is designed and created AFTER the marriage is legally consummated or during the term of marriage, at any time elected by the couple. Some couples going through marriage counseling actually seek an attorney’s assistance in creating a POSTNUP during that counseling period so that it lessens some strains during counseling in regard to individual legal obligations of the parties. Again, the POSTNUP is designed to fortify a marriage and reduce any barriers, and so there is openness of the couple.

DIVORCE – The legal cessation or end of a legal marriage contract. Many states (as in Florida) legally refer to this as Dissolution of Marriage, and as it says in its name, the marriage ceases or ends forever! Divorce is a very difficult matter to resolve and it also must never be taken lightly or without consulting an attorney. Even though the state permits individuals who do not own property jointly, or do not have children together from the same marriage, to do what is known as Simple Dissolution, even-so that too should never be done unless those individuals seek advice from an attorney to get detailed legal facts to prepare for divorce. Many couples have completed their own divorce package online or at the courthouse with the Clerk (who legally does not assist or give legal advice) have later regretted not spending a few dollars to later save thousands of dollars where a mistake was made and not realized until years later. Weekly we see a new client who obtained a Simple Divorce years prior and now finds out later a major error was made. Those mistakes or errors in good judgment later did not permit them to obtain life insurance, social security benefits were lost, pension money was lost, and death benefits were given to the wrong party. Just recently, this week, we had a client who did a self filing for divorce at the courthouse who was denied his U.S. Citizenship by the INS Hearing Officer because of a minor error in the original filing of the self filed form years ago; he then, had to hire new immigration counsel and pay for us to go before a judge to have the Dissolution of Marriage altered to correct his errors. Not only has this caused this new client major expense, he also lost his timely U.S. Citizenship approval standing that he has waited for almost six years for approval and now must start over again (this example is used only as an actual demonstration of a need to always seek legal advice). To fix those mistakes can cost thousands of dollars in legal and various court fees. Some of these same people come to us admitting they only wanted to save money and did not want to hire an attorney. Divorces are legal issues and require legal opinion. Most attorneys will give a free consultation in regard to divorce issues and at Katz & Associates Law Firm we encourage use of at least one free consult to better understand your legal obligations and rights. When there are children involved, or when there is property or joint debts or legal obligations of the divorcing couple, it becomes a very serious matter that requires serious planning and consideration so there are no warring parties later. Divorcing from a spouse may not end many legal issues or legal responsibilities. A true dissolution requires certain elements: a) Marital Settlement Agreement; b) division of assets and liabilities; c) handling of alimony or support or resettlement of the other spouse; d) visitation of any children or timesharing or custody, education and healthcare issues; e) any special situation needs to be considered. Just as entering into marriage is a legal contractual obligation, so too the divorce is a legal obligation that a judge must determine is properly and legally agreed between the parties in order to get a final end and resolve.

KATZ & ASSOCIATES LAW FIRM provides all clients with free consultation on any FAMILY LAW MATTERS. Call, to arrange for an appointment to make us part of your family planning and your financial welfare and legal safeguarding of assets and legal rights.

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