Are Foreign Prenuptial Agreements Enforceable in Florida?

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A prenuptial agreement (“prenup”) is an contract signed by both spouses-to-be before marriage. The general purpose of a prenup is for future spouses to agree to certain rules for property and asset distributions in the event of death or divorce. For instance, a couple might agree to waive rights to alimony or set monetary limits to alimony. Some couples agree to exclude certain property from being considered marital property. This could be an inherited family estate or business. Meaning, this property would not be subject to division in the event of divorce.

A foreign contract is one that was executed outside of Florida. This can be an agreement from another state or country. In the case of foreign foreign prenuptial agreements, one question that frequently arises is whether the agreement is valid and enforceable in Florida. In short, “yes” is the answer. Prenups are contracts; Contracts signed in other states or foreign countries are enforceable by Florida courts. However, there are some caveats. Courts give prenuptial agreements a higher level of scrutiny than business contracts. This is because:

  • Prenups involve personal rights (to property, for example)
  • There is a higher risk of overreach and undue or nefarious influence in the making of a prenup and
  • Often, prenups are signed in the absence of legal representation

For a foreign prenuptial agreement to be valid in Florida, wo legal requirements must be met. First, the prenup must be valid in the jurisdiction when and where it was signed. Second, the prenup must not counter to Florida public policy. The courts will use the “choice of law” doctrine, to evaluate a foreign prenup in relation to Florida public policy.

What is “Choice of Law”?

Every nation and every state in the US enacts various laws. Sometimes the laws are the same, but most often, the laws are different. Sometimes, in a given situation, different laws might apply and the different laws might be in conflict. When that happens, a court must make a choice between the competing laws.

Take a simple example related to speed limits. In parts of Germany, there are no speed limits for automobiles on the autobahn, the German freeway system. By contrast, in Florida, we have speed limits on our highways and freeways. Imagine a German tourist comes to Florida and drives 120 miles an hour down I-75. Of course, Florida Highway Patrol will pull over the tourist and issue a ticket. Now imagine that the tourist is standing before a Florida judge and attempts to escape paying the fine by stating: “But, in Germany, I can drive 120 miles an hour.” The judge will rightly and quickly respond: “Yes, but this is Florida and you can’t drive 120 miles an hour in Florida.”

Simply speaking, the judge faced a choice of law problem. In theory, German law might apply to a German citizen, but the citizen was driving in Florida. With two conflicting laws, which law should apply? In our example, the Florida judge chose to enforce Florida law since Florida has a higher interest in protecting its citizens on its roads and highways.

Why is Choice of Law Important?

The same choice of law analysis applies to prenuptial agreements. Take an example involving a prenup and a waiver of spousal support. Imagine that, in 1984, the couple married in a Midwest state. Their agreement states that in event of divorce, neither spouse could seek alimony or any sort of spousal support. In 2000, the parties moved to Florida and now are seeking divorce. The divorcing spouse asks the Florida judge to void the portion of the prenup waiving the right to alimony.

In making its decision, the Florida judge will engage in a choice of law analysis. Likely, the judge will rule that Florida law should be applied since the couple lives in Florida. After deciding the choice of law question, the judge will make a decision about awarding alimony based on Florida law. Under Florida law, alimony can be waived if certain conditions apply. Whether the spouse seeking support will become a dependent of the state is one consideration. Also important, is whether the prenup was signed under any sort of duress or fraud.

Therefore, foreign prenups are enforceable in Florida, but will be subject to a high level of scrutiny and to a choice of law analysis.

For a Closer Look at Your Prenuptial Agreement, Call Us Today.

Legal issues with respect to foreign prenuptial agreements are complex and can make a substantial impact on your future. If you need to know your rights under a prenuptial agreement, then consult a top-tier Florida family law attorney. Whether the contract was created in Florida or abroad, contact us by calling (407) 574-2573 or sending us a private message through our secure contact form. Appointments are available by telephone or video-conference for your safety and convenience.

International Law: Hague Conventions

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Any practicing international law firm worth their weight should be immediately familiar with Hague Conventions. They have been pivotal in defining many of the laws helping to govern internationally. That is to say, these multilateral agreements stem from more than a hundred years of cooperation. However, it may be surprising to learn there is not one, but some 40 different Hague Conventions. Each of them focusing on unique aspects of international law. We’ll highlight the Convention’s deep impacts on international law, and focus in particular on a Boyer specialty – international family law.

What is the Hague Conference?

The first Hague Conference was held in The Hague, Netherlands in 1893. Formally known as ‘The Hague Conference on Private International Law’, or HCCH, this global intergovernmental organization today brings together 84 states, including the U.S, and the European Union. The organization works to progressively unify the rules of private international law for the betterment of all. 

Differences Between ‘Hague Conference’ & ‘Hague Convention’

The objective of the Hague Conference is to create judicial cooperation between member states to limit issues prevailing international law. For example, conventions exist on forum shopping and fraud of judgments. To clarify, the Conference drafts, negotiates, and ratifies agreements, or ‘Conventions’, aimed at respecting the member country’s judicial authority. This is done by ensuring recognition of foreign judgments.

Various Hague Conventions touch on aspects of litigant privacy. But, not all litigants are equal before the law from one member state to another. For instance, the Conventions are not all ratified by the entirety of the member states comprising the organization. Most importantly, some Conventions are signed by the members but then are not ratified; Unfortunately, this renders them not applicable in the territories which have not ratified the act. However, even if not ratified, the Conventions still help retain a level of influence on the assessment of facts by courts. On the other hand, there are many Hague Conventions that are of universal application because they relate to universally-accepted points.

Hague Conventions Concerning Family Law 

Certainly, the most well-known Hague Conventions are the Conventions ratified by the greatest number of member states. In family law, there are several momentous Conventions that have helped shape the legal landscape:

  • Convention on the International Abduction of Children
    Desires to protect children internationally from harmful removal and to help them return to their families. Ratified on October 25, 1980.
  • Convention on the International Adoption of Children
    Concerns the powers of authorities, the applicable law, and the recognition of decisions in matters of international adoption. Ratified by the Hague Convention of November 15, 1965. 
  • Convention on International Administration of Estates
    Addresses the conflicts of laws relating to the form of testamentary provisions. Ratified by the Hague Convention of October 5, 1961 and the Hague Convention of October 2, 1973.
  • Convention on the Law Applicable to Maintenance Obligations in Respect of Children
    Desires to establish common laws applicable to the maintenance obligations of adults . Ratified by the Hague Conventions of 24 October 1956, April 15, 1958, and October 2, 1973.
  • Convention for the Recognition of Divorces
    Aimed at facilitating the recognition of divorces and legal separations of citizens within different member states. Ratified by the Hague Convention of June 1, 1970.
  • Convention for the Law Applicable to Matrimonial Property Regimes
    Ratified by the Hague Convention of March 14, 1978.

Above all, to determine if one of the Hague Conventions applies to your unique situation, there are a few considerations. Firstly, where did the event take place? Secondly, is that place a member state of HCCH? Likewise, is the issue something the member state has ratified at a convention? Further, what is the applicable rule of international law within the convention? Sound easy?

Navigating International Family Law Issues 

Instead of trying to figure out complex international law issues yourself, call on our experienced team of international attorneys. Moreover, our managing attorney, Francis M. Boyer is one of only a few attorneys in the entire U.S. to achieve Board Certification in International Law. Our dedicated team reviews all of the facts surrounding your case and helps you understand all your options going forward. Contact us now.

What if an Employee Refuses to Return to Work?

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As the economy restarts, many employers are facing the serious problem that some employees are reluctant to return to work. Some of the reluctance is driven by legitimate fears related to the coronavirus and its spread. For others, it is a matter of economics. The legal and practical issues are complex and employers must tread carefully. Retain an experienced Florida business attorney today for help. Here are a few of the legal issues that should be considered and steps to take.

Requests for Accommodation

Under the federal Americans with Disabilities Act (“ADA”), employers must consider any request from an employee for reasonable accommodations for a legitimate disability. See 42 U.S. Code §12101 et seq. The ADA prohibits discrimination against people with physical or mental disabilities in employment. This is relevant because certain employees might legitimately claim disability based on being COVID-19 “high-risk individuals.” Examples include workers who are elderly, have compromised immune systems, or serious comorbidity health factors.

A “high-risk individual” might ask for various accommodations, such as:

  • Working from home
  • Working in a different physical work area, which may provide more social distancing
  • A modified work schedule, which might be less busy and less risky
  • Something else

What Are Employer’s Obligations?

If not requested, employers do not have to provide accommodations. In other words, no blanket rules apply. Document every request made and address them individually. An employer is not required to accept all requests for accommodation. A request to work from home can be rejected if the employee’s physical presence at the place of work is an essential part of the job. A waitress, for example, must be present physically at a restaurant to serve the customers. The ADA requires some give and take. The employer can offer an alternative, if the job duties cannot be accomplished with the proposed accommodation. In our waitress example, the employer might suggest a different schedule, such as lunch shifts, which might be less risky in terms of exposure. If the employee rejects an alternative accommodation, then the employer can consider termination.

There is no obligation to grant requests to work from home, even if the work can be accomplished remotely. Certainly, there are legitimate business concerns that may preclude an employer from granting this request. Workplace safety regulations, accountability, adequate supervision, enforcing labor laws, and cyber-security are examples of these concerns..

Practical Considerations About Unemployment Benefits

Some employees are reluctant to return to work for economic reasons. To clarify, the enhanced unemployment benefits approved by Congress in the first stimulus package ($600 per week), some employees lose money by returning to work.

Meanwhile, those who are collecting unemployment benefits must periodically report job offers to Florida unemployment officials. Therefore, and employer can subtly coax an employee back to work by being direct about their return to work. Providing a specific date, time, and at a given location. This constitutes a “offering a job” as defined by the unemployment benefits regulations.

A benefit recipient who refuses a job offer can lose his or her unemployment benefits. If this happens, then the employee has no job and no unemployment benefits. When faced with this dilemma, many employees will return to work. Employers must be careful not to threaten employees with loss of unemployment benefits. Threats could lead to litigation and, in any event, termination of benefits is not within the control of an employer.

Communication and Documentation

Proper communication with returning workers is key. Some employers make the mistake of having general, vague, and exploratory conversations with their workers. So, employers must specify when and where employees are expected to return to work. Most importantly, document ALL communications. The documented communication is proof of the employer’s expectations. In short, employers should ensure expectations are clear and legitimate accommodation requests are considered. After that, employees refusing to return to work can be terminated for job abandonment.

For an Evaluation of your Business Needs Call Boyer Law Firm

With our team of experienced Florida business attorneys in Orlando, Jacksonville, and Miami, we can help guide you through the practical and legal issues discussed in this article. Call Us at (407) 574-2573 or send us a message through our secure contact form. Appointments are available only by telephone or video conference.

Remote Notarization of Estate Documents Begins

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On July 1, 2020, remote online notarization of wills and estate documents will go into effect in Florida. See Florida Ch. Sec. 117.201 et seq. Remote online notarization has already been in effect for other types of legal documents. In the past, ensuring the validity of estate documents required the physical presence of a certified notary. Now, a notary can certify these documents remotely using audio-visual technology. The technology must be real-time and allow for the participants to see, hear, and talk with one another. In addition, the video transaction must be recorded and preserved.

What Estate documents can be remotely notarized starting July 1st?

  • Revocable trusts
  • Powers of attorney
  • Health care surrogate designations
  • Living wills
  • Medicaid documents
  • And more

What is the Remote Notarization Procedure?

The process is relatively simple as long as you have access to an audio- and video-enabled device. With “Facetime,” “Zoom,” or “Skype,” you can have estate planning documents signed, witnessed, and notarized without leaving home. The online notarization procedure consists of six steps:

  • Receipt of documents: A registered and authorized online notary (not a traditional notary) receives documents to be signed and notarized.)
  • Authentication: The statute requires that the online notary authenticate the communications. The identity of the signer will be verified through means of various authentication protocols. These protocols may include verification emails; the signer might sign into the notary’s website and respond to questions, etc. Similarly, witnesses must also go through an authentication process.
  • Two-way video conferencing: The notary and all other parties join in a two-way video conference; witnesses must either be with the notary or the signer. For authentication purposes, the signer and witnesses will be asked various questions.
  • Identification: As in the past, unless known personally to the notary, the signer — and witnesses — must provide proof of identity.
  • Signature and notarization: While everyone watches, the signer signs and the notary electronically notarizes the documents.
  • Record keeping: The notary saves and retains the audio/video recording.

Limitations for Remote Notarization

Note that remote notarization is not appropriate for all circumstances. For instance, certain individuals defined by statute as “vulnerable adults” cannot have documents electronically notarized. “Vulnerable adults” are those who suffer mental impairment, such as from brain damage or “infirmities of aging.” Such limitations may impact clients in nursing homes and other care facilities. Therefore, such persons must pursue face-to-face notarization with a traditional notary.

Call Boyer Law Firm to Discuss your Estate Planning Needs

A last will and testament and other estate planning documents are important for everyone at every stage of life. The first step is obtaining guidance from an experienced and reputable Florida estate attorney at Boyer Law Firm, P.L. If you have questions about remote online notarization, please call (407) 574-2573 or submit our secure contact form. Appointments are available only by telephone or video conference. We proudly serve clients in the communities of Orlando, Jacksonville, Miami and New York City.

Mistakes to Avoid in Barter Transactions

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Bartering is the process of exchanging goods or services for other goods or services without the use of money. While this alternative form of payment is generally thought of as an antiquated business practice, it is a practice that may prove to help businesses survive the economic impact of crises. The primary benefit of exchanging goods or services is that it preserves your working capital. During a time of economic crisis, business owners must get creative in generating income, making barter transactions a worthwhile option. At the same time, these agreements should be carefully planned to avoid the most common mistakes.

Plan Carefully

Carefully  planning terms of your barter agreement  is necessary to protect your business. This type of transaction requires additional due diligence since it is easier to stiff someone on a trade than in a traditional cash transaction.

Take into consideration the following four pitfalls to avoid in barter transactions:

  1. Choosing a bad trade partner. Ensure the items or service, offered by a prospective trade partner, are of value to your business. Verify the items or service are of good quality. Secure a readily available point of contact should problems arise.
  2. Not planning for taxes: The IRS makes inquiries about barter transactions during audits. In general, barter transactions are taxable, with a few exceptions, such as a “like-kind” exchange in commercial building transactions.
  3. Not using an original document: It is tempting to reuse another company’s contract. Avoid this temptation. You can find many barter agreement templates online that appear to be written by lawyers. Non-lawyers redrafted many of these samples. Reusing someone else’s barter contract could be considered copyright infringement as well.
  4. Not evaluating Fair Market Value (FMV) accurately: Beauty is in the eye of the beholder, which means that barter transactions are highly susceptible to debate over the FMV of the items or services in exchange. Significantly over- or undervaluing the trade can result in one party ending up on the wrong side of the deal.

The most practical way to avoid mistakes in a barter agreement is by discussing the exchange with a Florida contract lawyer. He or she can counsel and represent client interests in establishing fairness.

Contact Boyer Law Firm, P.L. to Draft Your Barter Agreement

If you are considering barter agreements as part of your business during the COVID-19 outbreak, you should reach out to a Florida business law attorney at Boyer Law Firm, P.L. We can review your current business situation and provide additional recommendations to strengthen your company’s stability on a solid legal foothold.

Contact us for your complimentary case evaluation with our team of legal professionals. You can request yours by calling (305) 921-9665 or sending us a message through our secure contact form.