Tuesday, December 2, 2008

When Reasonable Minds Differ - Appeal!

Charles Rubin of Rubin on Tax has a lovely post, SEPARATION DOES NOT EQUAL DIVORCE, about what can go wrong (and right) between writing a prenuptial agreement and a trial judge. I several lessons to be learned for various types: 1) why there are dangers in writing your own legal documents, 2) that judges can go off the rails in Florida as well as Indiana, and 3) why we must never forget that there is a Court of Appeals.

Here is the issue:

A husband and wife enter into a prenuptial agreement. The agreement provides that it continues to apply even through "separation and reconciliation." Instead of separating and reconciling, the couple divorces and remarries. The issue arises whether the agreement continues to apply to the new marriage.

This was the issue in a recent Florida case, where after remarriage the husband died, and the wife sought to exercise property rights she had given up under the prenuptial agreement. Do you think the agreement continued to apply - that is, does "separation and reconciliation" mean the same thing as "divorce and remarriage?"

I agree with Mr. Rubin - divorce ought to have ended the prenuptial agreement. After all, clients create prenuptial agreements contemplating divorce.

Here is what the trial court did (and a prime example of why I tell my clients never to bet on what a judge will do):
In my mind, the answer is no way - divorce is the legal dissolution of marriage - separation is just that, the parties ceasing to live together but without divorce. The trial court didn't agree with me (or the surviving wife), and held that "separation and reconciliation" = "divorce and remarriage," and thus the agreement continued to apply to the new marriage. It held this, even though as a general rule a prenuptial agreement does not survive the termination of a marriage.
The Florida Court of Appeals agreed with Mr. Rubin and reversed the trial court. Thankfully, Mr. Rubin's client had the funds with which to appeal.

Reasonable minds can disagree and there can be an outright stupidity amongst judges. The appellate courts exist for both cases. For more articles here about appeals, click the link below for "appeals".

But why does this article show the dangers of DIY legal documents? After all, Mr. Rubin's article does not explicitly state that non-lawyers wrote the prenuptial agreement. Precisely. I presume attorneys did write the prenuptial agreement. Let me return to Mr. Rubin's post:
Clients often wonder why lawyers often take 10 words to say something in an agreement that could have been said in 5. This case is one reason - no matter how obvious a word may seem, sometimes you have to add a lot more language to make sure every knows what you meant if the parties want to fight about it. Its also a little bit scary, since this is not the first time I have seen plain language distorted by a trial judge beyond what was ever intended or its common, everyday meaning. Luckily, the appellate court was able to correct the error in this case, but there are instances where it is not economically viable to appeal or where the appellate court is not of a mind to disturb the ruling of the trial court.
If the trial court can misread a lawyer's writing, then I say it can even easier misread a lay person's writing. One thing comes to mind when I write a document: what will a stranger make of this? I see people who have written their own legal documents (or have used a store bought form) with realizing how the language might appear to third parties. That is when the trouble starts, and the money saved by doing the paperwork themselves evaporates in the fees charged for litigation.

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