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Harness Collaborative Contract Power!

Collaborative Divorce, Relationship Agreements / Michael P Sampson

By Michael P. Sampson ABA Just Resolutions, February 22, 2022 Updated June 25, 2025 A Climate of Positive Energy Valentine’s Day 1990. The founder of the Collaborative movement, Stuart G. Webb, writes to the Honorable A.M. “Sandy” Keith, Justice of the Minnesota Supreme Court. Mr. Webb’s love interest? A power source for creative settlement he’d conceived: the Collaborative process. The “climate of positive energy” Stu had witnessed and wanted to sing about often occurred by accident. He found it happened when lawyers used their “analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement.” In the climate that captivated Webb and other like-minded contemporaries, who deliberately sought to replicate it, people could harness their power to sign binding settlement contracts. They could express creative alternatives to advance their respective and mutual goals… they could stay out of court. Contract Power in the Collaborative Process Alternative dispute resolution (ADR) processes are more intimate than going to the mat with an adversary in court. Negotiating participants in ADR control the processes more than they can in adversarial models. They may make graduated choices to achieve goals after considering options, including options unavailable to a judge. Collaborators working in a confidential, intimate, encouraging environment may achieve — by contract — person-oriented” remedies, like “an apology, a handshake, and invitation.” Collaborators may express choices by contract commitments that advance goals, which may include maintaining personal relationships (for example, so they may coparent effectively), preserving bonds in an interdependent group (for example, a family, a neighborhood, or a social circle), or moving past the dispute in harmony (for example, so they may resume business together). A judge typically couldn’t impose these remedies unrelated to the claims for adjudication. Litigation is not intimate; it’s polarizing. A dominant neutral stranger controls the process. The stranger, typically faced with binary choices, imposes a resolution on the combatants. That happens after they present evidence, under constraints rules of evidence and procedure impose, and argue positions, based on statutes and case precedent. Contract Freedom and An ADR Process That Encourages Its Exercise The collaborative environment Stu Webb imagined, which collaborating professionals have expanded globally, invites exercising contract freedom. Fundamental federal law, state law, and case law have protected freedom to contract as a liberty and property right. States cannot take away the right to contract without due process. The Federal Constitution’s Contract Clause and state constitutions restrict state impairment of contract obligations. A state impairs a contract when it makes the contract worse or diminishes its quantity, value, excellence, or strength, lessens its effective enforcement, or delays its enforcement. Freedom from impairing contracts applies to any contract. The law circumscribes judicial power, too, to impair freely negotiated private contracts by stopping judges from rewriting them. Unless there’s fraud, involuntariness, overreaching, incapacity, violating public policy, or other sufficient grounds, a judge can’t rewrite parties’ contracts to make them fit a “post contractual conception more suitable to the situation of the parties.” Settlement Agreements Are Highly Favored Settlement agreements are binding, enforceable contracts. Basic contract principles govern them. Marital settlement agreements, likewise, are binding contracts, interpreted and enforced under contract law. Public policy and the law in every state highly favors settling disputes with binding settlement agreements. Courts will uphold them, when possible, because, through them, parties amicably resolve doubts and uncertainties and avoid lawsuits. Settlement agreements help: This policy favoring parties’ reaching settlement agreements to provide for stable arrangements extends to matrimonial and other family law disputes and to probate disputes. The UCLA Promotes Settlement The Uniform Collaborative Law Act (UCLA) further promotes highly favored settlement, particularly in family matters. As of this writing, seven of the ten most populous states – Texas, Florida, Pennsylvania, Illinois, Ohio, North Carolina, and Michigan (and twenty-one other states plus the District of Columbia) – have adopted the Uniform Collaborative Law Act. Some adopting states have expressed this public policy encouraging peacefully achieved settlement contracts. For example, Florida’s “purpose” section of its enactment of the UCLA provides: It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process. The collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation. Similarly, Texas’s “policy” section of the UCLA provides: It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including disputes involving the conservatorship of, possession of or access to, and support of a child, and the early settlement of pending litigation through voluntary settlement procedures. Freedom to Contract in the Collaborative Environment Fosters Expanded Choices and Creative Contract Solutions States, public policy, and the UCLA encourage people to exercise their freedom of contract and harness their power to contract to settle disputes. For collaborators, the intimate climate Stu Webb conceived and was smitten with (a love affair grown deeper in the last 30+ years) is inviting. The collaborative environment allows them and their professional team to harness and direct contract power constructively. This freedom to contract empowers collaborative participants to exercise it. By doing so, they expand their choices. Collaborative teams invite and encourage every member to imagine solutions beyond outcomes courts could order, and to commit to them in contracts. By selecting among imagined solutions and expressing them in contracts, participants can achieve resolutions a judge, constrained by statutes, case precedent, and rules of procedure and evidence, couldn’t otherwise impose. Family law cases illustrate such expanded contractually achieved choices. Family Law Settlement Agreements to Obligations A Judge Could Not Otherwise Order Consider the power of contract in the family context. Obligations parties took on contractually that a judge couldn’t have ordered otherwise include: Bounds of Contract Freedom in Family Law: Respecting Contracts but Safeguarding Children Contract freedom has bounds. The State retains authority “to safeguard the vital interests of its people” and appropriately and

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Collaborative Family Law: Florida Favors Settlement Agreements

Collaborative Divorce, Parenting Issues, Relationship Agreements, Timesharing & Custody / Michael P Sampson

Florida favors settlement agreements of family law disputes. Parents may agree to take on obligations based on future events. That’s true even if a court otherwise couldn’t impose those obligations. This power parents have in collaborative divorce to make marital settlement agreements makes collaborative special. Purpose of Florida’s Divorce Statute Includes Promoting Settlement Since July 1, 1971, the purposes of the dissolution of marriage statute haven’t changed. For 50 years, the purposes of Florida’s divorce statute have been: (a) To preserve the integrity of marriage and to safeguard meaningful family relationships; (b) To promote the amicable settlement of disputes that arise between parties to a marriage; and (c) To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage. See 61.001(2), Florida Statutes. Florida Favors Settlement Florida law highly favors settlement agreements. Griffith v. Griffith, 860 So. 2d 1069 (Fla. 1st DCA 2003); Chovan v. Chovan, 90 So. 3d 898 (Fla. 4th DCA 2012). See also Robbie v. City of Miami, 469 So. 2d 1384 (Fla. 1985); Koung v. Giordano, 346 So. 3d 108 (Fla. 1st DCA 2022); Dozier v. Scruggs, 380 So. 3d 505 (Fla. 5th DCA 2024). Separation agreements executed by husband and wife prior to divorce usually provide for payment to the wife of support or alimony; for support and custody of children; and for settlement of property rights existing between the parties. When such agreements are fairly entered into and are not tainted by fraud, overreaching or concealment, they will be respected by the courts. * * * Provisions of a separation agreement or final decree relating to the support, care and custody of children are always subject to review and approval by the court, the guiding star being the best interest and welfare of the children. Sedell v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958). Parties Who Settle Their Disputes May Take Control of Their Lives Florida, as other states, favors settlement agreements. Settling cases conserves taxpayer and judicial resources. Moreover, whether parents or businesses, parties who settle their disputes determine their own fate, rather than leaving things up to a stranger. As the court observed in a land dispute neighbors settled at mediation: Mediated settlement agreements will be enforced whenever possible because the settlement of cases conserves the taxpayers’ resources invested in the judicial branch. See Robbie, 469 So 2d at 1385; see also Patrick, 745 So. 2d at 580. Further, settlement allows the parties to steward their own affairs—that is, to broker for themselves an acceptable outcome rather than invite into their lives the unwelcome involvement of the machinery of government and the risk of an adverse determination at trial. Dozier v. Scruggs, 380 So. 3d 505 (Fla. 5th DCA 2024) Marital Settlement Agreements Are Contracts These general principles apply equally to settlement of family disputes. Spouses who take control of their lives in Collaborative Divorce: Spouses derive such control by harnessing their freedom to contract and the power contracts give them. After all, marital settlement agreements are construed under Florida law the same as other contracts. Taylor v. Lutz, 134 So. 3d 1146 (Fla. 1st DCA 2014). See also Antunes v. Oliveira, 341 So. 3d 420 (Fla. 3d DCA 2022); Godwin v. Godwin, 273 So. 3d 16 (Fla. 4th DCA 2019); Ballantyne v. Ballantyne, 666 So. 2d 957 (Fla. 1st DCA 1996); Levitt v. Levitt, 699 So. 2d 755 (Fla. 4th DCA 1997). Contract Law Principles Contract elements For an enforceable contract, there must be an offer, acceptance, consideration, and specification of essential terms. Moore v. Wagner, 377 So. 3d 163 (Fla. 2d DCA 2023); Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen Marina & Yacht Club, LLC, 207 So. 3d 938 (Fla. 4th DCA 2016); Triton Stone Holdings, LLC v. Magna Bus., LLC, 308 So. 3d 1002 (Fla. 4th DCA 2020). The parties’ minds must meet on all essential elements. Greater NY Corp. v. Cenvill Miami Beach Corp., 620 So. 2d 1068 (Fla. 3d DCA 1993); Acosta v. District Board of Trustees of Miami-Dade Cmty. Coll., 905 So. 2d 226 (Fla. 3d DCA 2005). A marital settlement agreement is subject to the law of contracts. Romaine v. Romaine, 291 So. 3d 1271 (Fla. 5th DCA 2020); Knowling v. Manavoglu, 73 So. 3d 301 (Fla. 5th DCA 2011). “Like any contract, a settlement agreement is formed when there is mutual assent and a ‘meeting of the minds’ between the parties — a condition that requires an offer and an acceptance supported by valid consideration.” Pena v. Fox, 198 So. 3d 61 (Fla. 2d DCA 2015). The spouses’ minds must connect on all essential terms of their agreement. The essential terms must be firm or definite. De Cespedes v. Bolanos, 711 So. 2d 216 (Fla. 3d DCA 1998), even if all details aren’t definitely fixed. Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 302 So. 2d 404 (Fla. 1974). When their minds do meet, however, spouses may achieve solutions limited by their imaginations, the law, and, when their agreements involve kids, a judge’s duty to make sure the solutions are best for the kids. The next section highlights creative settlement agreements in which people achieved solutions a judge, absent the agreement, otherwise wouldn’t have been able to order. Parents May Agree to Obligations a Court Could Not Otherwise Order Parties can contract clearly to terms and conditions in agreements a court could not order on its own. It is well-settled in dissolution of marriage proceedings that the parties may enter into settlement agreements imposing obligations the trial court could not otherwise impose under the applicable statutes. Herbst v. Herbst, 153 So. 3d 290 (Fla. 2d DCA 2014) (citing Taylor, 134 So. 3d at 1148). Because Florida favors settlement agreements, parents may agree to assume obligations a court couldn’t otherwise impose. The court’s inability to order provisions without parents agreeing to them doesn’t make their agreements unenforceable. Parents May Agree to Assume Obligations A Judge Couldn’t Order. Examples where divorcing parties agreed to obligations the judge wouldn’t have been able to order without their contract include: Settlement Agreements: Being Creative and Flexible in Collaborative Divorce

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Florida Parenting Plan Basics: Collaborative Family Law

Collaborative Divorce, Parenting Issues, Relationship Agreements, Timesharing & Custody / Michael P Sampson

What is a Parenting Plan? In Florida, a ‘Parenting Plan’ governs the relationship between parents “relating to decisions that must be made regarding the minor child.” Section 61.046(14), Florida Statutes. See CN v. IGC, 316 So. 3d 287 (Fla. 2021). A court’s authority to order parenting plans comes from section 61.13(2), Florida Statutes. That section sets out minimum required parenting plan provisions. For example, they include “time-sharing schedule arrangements” that specify when the child will be with each parent. You and child’s other parent may agree to a parenting plan in Florida. Moreover, courts often prefer and approve agreed parenting plan provisions to those on which parents don’t agree. Still, the court need not approve your proposed plan. Instead, it may develop its own plan. The court may do that when it finds it’s best for your child. See Section 61.046(14)(a), Florida Statutes. Minimum Requirements for Florida Parenting Plans As discussed above, section 61.13(2)(b), Florida Statutes requires a parenting plan provide, at minimum. 1. Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; 2. Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent; 3. Designate who will be responsible for: a. Any and all forms of health care. If the court orders shared parental responsibility over health care decisions, either parent may consent to mental health treatment for the child unless stated otherwise in the parenting plan. b. School-related matters, including the address to be used for school-boundary determination and registration. c. Other activities; and 4. Describe in adequate detail the methods and technologies that the parents will use to communicate with the child. See Laws of Florida, Ch. 2023-213 (amending section 61.13(2)(b)3., effective July 1, 2023). A parenting plan that doesn’t meet the statutory requirements of section 61.13(2)(b), Florida Statutes is legally insufficient. Scudder v. Scudder, 296 So. 3d 426 (Fla. 4th DCA 2020). For example, in Hernandez v. Mendoza, 346 So. 3d 60 (Fla. 4th DCA 2022), a parenting plan provided for shared parental responsibility over health care decisions. However, the plan failed to provide that either parent may consent to mental health treatment for their kids. The Fourth District sent the plan back to the trial court to add this missing provision section 61.13(2)(b)3.a. requires. For further discussion of a parent’s retained consent to “mental health treatment” for a child, read the Sampson Collaborative Law series beginning with Florida Parenting Plans: Consent to Child’s Mental Health Treatment. Judges and Florida Parenting Plans – Best Interests and Modification Section 61.13(3) lists factors a Florida judge must consider when figuring out your child’s best interests and adopting a parenting plan. Additionally, the court may consider any other factors. See Section 61.13(3)(t). Under Florida law, a judge may modify your Parenting Plan. But the judge can’t do that unless one parent proves a “substantial change in circumstances” and that requested changes are in your child’s best interest. See Section 61.13(3, Florida Statutes and Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005). These principles apply in paternity cases, too. Section 742.031(1), Florida Statutes. The Substantial Change in Circumstances Test: Extraordinary Burden for Modifying Florida Parenting Plans. A parent seeking modification of parenting plan provisions must show: For more about the substantial change in circumstances test, read here. A parent who wants to change the “status quo” of a parenting plan must file a petition and properly serve process on the other parent. Clark v. Clark, 204 So. 3d 589 (Fla. 1st DCA 2016). Statutory Exception to Best Interest Standard: Modification Modification of a Florida parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances. See section 61.13(2)(c), Florida Statutes. That means the parent seeking to modify a parenting plan, “must show that (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child’s best interests justify changing custody.” Hutchinson v. Hutchinson, 287 So. 3d 695 (Fla. 1st DCA 2019) (quoting Korkmaz v. Korkmaz, 200 So. 3d 263 (Fla. 1st DCA 2016)). 2023 Update: Amended Law Removes Requirement a Substantial Change Be Unanticipated On June 27, 2023, the Florida Governor received a proposed amendment to Florida law on timesharing. Effective July 1, 2023, Florida law on modification axes the requirement a substantial change in circumstances for modification be unanticipated. See CS/HB 1301, amending section 61.13(3), Florida Statutes; Laws of Florida, Ch. 2023-301. Effective July 1, 2023, the remaining required elements for modification of a parenting or time-sharing schedule will be: Can You Anticipate and Provide in Your Parenting Plan Modifications for Future Events? As stated earlier, a parent who seeks modification must show the parents didn’t anticipate the change in circumstances. See Patel v. Patel, 324 So. 3d 1001 (Fla. 1st DCA 2021) (emergency room doctor dad failed to show scheduling challenges, which made weekend timesharing difficult, differed substantially from those he faced when the judge adopted the parenting plan). So, does that mean in Florida you and the judge can’t anticipate and provide in your Parenting Plan for future changes? What if things that you and the other parent predict will happen do happen? Can you avoid returning to court? Parents may agree to modify custody for future changes, when certain milestones happen. That’s what parents agreed would take place in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). Their parenting plan expressly set forth a series of timesharing schedules. Over three years, upon milestone events happening, dad’s timesharing with the child would increase. Neither parent would have to return to court for the agreed modified schedules to take effect. Moreover, the extraordinary “substantial change in circumstances” burden for modification wouldn’t apply. In the next section, learn more about agreements you and the other parent might reach for events you predict. Related Blog Posts:

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Domestic Partnership Agreements: FAQs

Property Distribution, Relationship Agreements / Michael P Sampson

This final installment of a 7-part series about domestic partnership agreements answers frequently asked questions (FAQs) about them. Using the Collaborative Process for Negotiating a Domestic Partnership Agreement The Collaborative Process can assist a couple with negotiating a domestic partnership agreement. A full collaborative team includes a lawyer for each party, a neutral financial professional, and a neutral mental health professional may work with the parties in negotiating a domestic partnership agreement or, if the parties intend to marry, a premarital agreement. The couple and their collaborative team meet together. First, they identify each person’s goals and interests. Next, they work on gathering and exchanging financial information. Together, they explore best options and their lawyers work on an agreement expressing the couple’s decisions. In collaborative settlement agreements, the parties may agree to submit any future disputes to an agreed-upon collaborative process, even using the same team as the one used during negotiations. Related Blog Posts Read more about Florida Domestic Partnership Agreements:

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Domestic Partnership Agreements: Financial Disclosures

Property Distribution, Relationship Agreements / Michael P Sampson

This sixth installment of a 7-part series about Domestic Partnership Agreements discusses financial disclosures and privacy. To avoid later attack on the domestic partnership agreement, the partners should make fair and reasonable financial disclosures to each other. Disclosures to Consider For Florida “family law matters” (which Florida Family Law Rule of Procedure 12.010 defines broadly) such as divorce, Florida Family Law Rule of Procedure 12.285 mandates extensive financial disclosures. “Family law matters” includes matters arising from support unconnected with dissolution of marriage and declaratory actions related to premarital agreements. The list below includes items modified from the list that the Florida Supreme Court approved on November 12, 2020. Before domestic partners sign their agreement, each should consider disclosing: Trusts and all trust amendments for any trust of which either party is a beneficiary or may be in the class of beneficiaries or for which either party is a trustee. Documents sufficient to show each party’s ownership interest in any corporation, limited liability company, professional association, partnership, family limited partnership, joint venture, franchise, or other entity. Buy-sell or other agreements between or among either party and other owners of any business or family entity. Documents sufficient to reflect each party’s ownership of any tangible and intangible personal property, including vehicles, intellectual property (patents, trademarks), deferred compensation (such as stock options, restricted stock units), furniture and furnishings, collections, equipment, or contracts. Complete federal and state personal income tax returns, gift tax returns, and foreign tax returns for the past 3 years. Include all attachments, Forms W-2, 1099, K-1, and all schedules and worksheets comprising the entire tax return. IRS forms W-2, 1099, and K-1 for the past year, if the income tax return for that year hasn’t been prepared and for the prior 2 years beyond the past year, if the return hasn’t been filed for those years. Pay stubs or other evidence of earned income for the past 6 months. For the past 24 months, all loan applications, financial statements, and credit reports. Deeds evidencing ownership in property held during the last 3 years. Promissory notes or other documents evidencing money owed in the last 24 months. Leases for property on which the party is receiving or has received payments in the last 3 years or in which the party owns or owned an interest. Statements for the last 12 months for all checking and other bank accounts. Accounts include held in the party’s name individually, jointly with any other person or entity, as trustee or guardian for a party or a minor or adult dependent child, or in someone else’s name on the party’s behalf. Brokerage account statements held within the last 12 months. The most recent statement and statements for the past 12 months for any profit sharing, retirement, deferred compensation, or pension plan. Examples are IRAs, 401(k)s, 403(b)s, SEPs, KEOGHs, or other similar accounts. The most recent statement and statements for the past 12 months for any virtual currency transactions in which the party participated or holds an interest. The declarations page, the last periodic statement, statements for the past 12 months. Include the certificate for all life insurance policies insuring the party’s life. Current health and dental insurance cards covering the parties or their dependent children. If the party has an ownership or interest in a corporation, partnership, or trust, corporate, partnership, and trust tax returns for the last 3 tax years. Promissory notes evidencing debt for the last 24 months, whether since paid or not, and all credit card and charge account statements. Present lease agreements. Written premarital or marital agreements (or domestic partnership agreements) entered into at any time between the parties. Any court orders directing a party to pay or receive spousal or child support. Confidentiality and Nondisclosure Protections Domestic partnership agreements may provide for protecting the privacy and confidentiality of private financial information. Such information may include private family business information or trade secrets. Parties may agree to limit who may access confidential information. They may agree not to file confidential information in any future court action. They may agree to invoke court rules for sealing confidential documents being filed in court. Agreed Dispute Resolution: Collaborative Process They may agree to resolve future disputes through the collaborative process. The collaborative process enables out-of-court resolution of disputes with a team. The collaborative team includes a lawyer for each party, a neutral financial person, and a neutral mental health professional. Read more about Florida Domestic Partnership Agreements: Domestic Partnership Agreements: Overview Domestic Partnership Agreements: The Home and Joint Expenses Domestic Partnership Agreements: Separate and Joint Property Support When the Relationship Ends Survivor’s Rights on Domestic Partner’s Death Domestic Partnership Agreements: FAQs

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Survivor’s Rights on Domestic Partner’s Death

Beneficiary Designations, Property Distribution, Relationship Agreements / Michael P Sampson

This fifth installment of a 7-part series about Domestic Partnership Agreements discusses survivor’s rights on death. Florida law provides for survivor’s rights if a married person dies before the other spouse and they have no premarital or postnuptial agreement. But for unmarried domestic partners, Florida law provides no survivor benefits upon the decedent’s death. Through careful planning and drafting of a domestic partnership agreement, however, partners can achieve similar financial rights on death. Elective Share – Create Equivalent Survivor’s Rights for Domestic Partners? A survivor’s right available to a surviving spouse, but not to unmarried couples, is the “elective share.” See section 732.201-732.2155, Florida Statutes. The elective share is a surviving spouse’s right to a share of the decedent’s estate no matter what the will provides. A marrying or married party may waive that right. Florida law specifies the property included in the “elective estate.” The amount of the elective share is generally 30 percent of the “elective estate.” For example, for married couples, if a spouse’s will provided the other spouse would get $100,000 upon death, and the rest of the wealth, money, and property would go into a trust for someone other than the surviving spouse, but the decedent’s “elective estate” calculated under Florida law were worth $1 million, the surviving spouse could elect to take $300,000. Options for Survivor Death Benefits of Domestic Partner To provide for survivor’s rights, domestic partners may use definitions similar to those for the spousal elective share. Their agreement could provide for irrevocable commitments that the survivor partner would share in the decedent’s estate. These irrevocable commitments for survivor death benefits would stand, regardless of what a later will were to provide. The draft agreement could lay out alternative provisions for either party to consider: There will be a partial waiver and release of property and estate rights and a specific waiver of any right to include the value of the interests in trusts in a partner’s share upon the other’s death. Both parties will waive and release property and other estate rights upon the other’s death. Absent later different written arrangements, there will be specific irrevocable rights in the other party’s estate upon the party’s death. Related Blog Posts Read more about Florida Domestic Partnership Agreements: Domestic Partnership Agreements: Overview Domestic Partnership Agreements: The Home and Joint Expenses Domestic Partnership Agreements: Separate and Joint Property Support When the Relationship Ends Domestic Partnership Agreements: Financial Disclosures and Privacy Domestic Partnership Agreements: FAQs

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Domestic Partnership Agreements: The Home and Joint Expenses

Collaborative Divorce, Property Distribution, Relationship Agreements / Michael P Sampson

This second installment of a 7-part series about domestic partnership agreements discusses the home and joint expenses. Partners Acquiring a Home Together Two people may acquire a home together. They may contribute different amounts to the purchase price. During their relationship, they may contribute different amounts towards improvements, the mortgage, insurance, and property taxes. Further, they will undoubtedly have home and joint expenses. Recognizing these contributions, domestic partnership agreements may establish a fair formula for splitting net proceeds if (i) the home is later sold or, (ii) if one person dies before the other and they are still together, a buyout from the decedent’s estate. The couple may say how they’ll handle their joint household expenses. Calculators: Growth in Real Property and Accounts Owned Before the Domestic Partnership Each partner may bring separate real property or personal property into their domestic partnership. Many couples agree any growth – no matter why – in value of such property during their relationship remains the owner’s separate property. That may be their written agreement no matter how long their relationship lasts. Still other couples, however, may consider alternative ways to handle growth in value. That way, if during their relationship, the value grows from passive market growth or from either person’s contributions, they can allocate the growth fairly. Calculators useful in the marital context may help the couple think about what might be “fair” allocation of asset growth during their domestic partnership. One real property calculator helps calculate increased value of real property. The other personal property calculator helps calculate growth in value of other assets, like investment accounts. Questions to think about: (a) If the couple has children, are still together, and one parent dies, what would they like to happen with the home? (b) Is the answer different if they’ve been together for 2 years or 15 years? Would they want the surviving parent and children to stay in the home until there are no longer dependent children? (c) If the couple has children and one wants to end the relationship, what would they like to happen with the home? Is the answer different if they’ve been together for 2 years or 15 years? (d) If the couple has no children together, how would they like the home handled if one dies before the other or if one gives wants to end the relationship? Handling Home and Joint Household Expenses A committed couple may provide for a joint household account or other joint accounts to pay home and joint expenses. Their agreement may allow deposits into joint accounts of funds either party may earn. One may agree some distributions from a trust will go into the joint account. The couple may decide a percentage of their separate money will go into a joint account for household bills or improvements. Joint funds may be deemed joint property. But ownership in trusts or each party’s separate accounts, and any growth in the value of such ownership or interests during the parties’ relationship, ordinarily would remain separate. Read more about Florida Domestic Partnership Agreements:

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Domestic Partnership Agreements: Overview

Property Distribution, Relationship Agreements / Michael P Sampson

This first installment of a 7-part series gives an overview of domestic partnership agreements. Married and Unmarried Committed Couples Many couples who could not legally marry now can. In Obergefell v. Hodges, The United States Supreme Court described the fundamental right to marry, commit to, and intimately associate with the person you love through marriage as one of identity and liberty. But thousands of people in committed intimate relationships choose not to marry. Instead, they choose to stay happily unmarried. Their identity and liberty interests allow them that choice. Property and support issues are no less important to people in unmarried committed relationships than they are to married people. Domestic partnership agreements can protect committed, unmarried couples, as premarital agreements do for marrying couples. Domestic Partnership Agreements In this series, we provide an overview of domestic partnership agreements and issues couples typically address. Issues include where they’ll live during their relationship, paying home and joint bills, handling separate property, property they may acquire together, support if their relationship ends, death, and financial disclosures. The series concludes with FAQs about domestic partnership agreements. Overview: Domestic Partnership Agreements Premarital agreements, also known as “prenuptial” or “antenuptial” agreements, express the wishes of a marrying couple regarding their property and support rights upon (i) death of one party or (ii) divorce or separation. For estate planning, each party’s family may have transferred assets into trusts or business entities. One goal might be to retain control of family companies and other assets. Provisions in the agreements should be consistent with this goal. Issues addressed Domestic partnership agreements may include provisions for a joint household account; support; what happens on death; and keeping the agreement private. The agreement typically will define and cause, if the relationship ends, each party’s interests in separate assets and family trusts and in other property to be deemed each party’s separate property. Next, the agreement will define each party’s separate property, and, unless either party directs otherwise, typically provide for the income, distributions, dividends, appreciation, and benefits from each party’s separate property will also be that party’s property. The agreement should describe each party’s ownership interests and trust interests in which either party may acquire rights and benefits during the parties’ relationship. It will provide for waiving interests if the relationship ends or one party dies. Related Blog Posts The following blog posts discuss other issues that often arise in negotiating domestic partnership agreements. Read more about Florida Domestic Partnership Agreements:

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Domestic Partners: Support When the Relationship Ends

Property Distribution, Relationship Agreements / Michael P Sampson

This fourth installment of a 7-part series about Domestic Partnership Agreements discusses support when the couple’s relationship ends. Florida law generally provides, when there is no premarital agreement, a spouse’s right to alimony on divorce depends on the spouse’s need for alimony and the other spouse’s ability to pay. But, when a couple is not married, how are support rights determined? No Palimony…But Creating Support Rights by Contract Although Florida courts will honor common law marriages validly established in other states, Florida itself no longer has common law marriage. Florida law provides no support (or “palimony”) for unmarried couples. But domestic partnership agreements may establish contract rights and obligations for support. Creative Options for Domestic Partners Support There are many, creative ways to structure support. Most provide for a fair amount based on how long the couple stay together and their respective financial positions if their relationship were to end. Among many alternative support options, couples may consider providing for: A. Nonmodifiable payments. The amount could vary based on how long the couple stays together. Agreements may provide different amounts of support to the partner if there are children of the relationship. B. A fixed amount of support, e.g., (a) for 2 years if the relationship is under 7 years; (b) for 4 years if the relationship is more than 7 and but less than 12 years; (c) for 10 years if the relationship is more than 12 and but less than 18 years; (d) for the provision to be void if the parties are together more than 18 years. C. A percentage of support based on each party’s prior year’s gross taxable income. The payment schedule could be as in Option B. But the amount, rather than being a fixed sum, could be a percentage of each party’s prior year’s gross taxable income less a percentage of the other party’s prior year’s gross taxable income, then dividing by 12 months. For example, if the greater money earner’s gross income for the prior year was $100,000 and the partner’s gross income were $30,000, annual support could be (30% X $100,000) – (20% X $30,000), or $24,000, and monthly support would be $2,000. Taxes IRS Publication 504 states, unmarried domestic partners (who are not considered “common law married”) can’t file joint U.S. tax returns, but may file only individual 1040 tax returns. Individuals who have entered into registered domestic partnerships, civil unions, or other similar relationships that are a legal marriage under state (or foreign) law are not married for federal tax purposes. Nevertheless, unmarried domestic partners, with the assistance of a tax professional, could calculate and make creative (legal!) financial agreements to lessen the tax burden them and retain more of their wealth. Related Blog Posts Read more about Florida Domestic Partnership Agreements: Domestic Partnership Agreements: Overview Domestic Partnership Agreements: The Home and Joint Expenses Domestic Partnership Agreements: Separate and Joint Property Survivor’s Rights on Domestic Partner’s Death Domestic Partnership Agreements: Financial Disclosures and Privacy Domestic Partnership Agreements: FAQs

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Why Jeff Bezos should have gotten a prenup & why you should too

Property Distribution, Relationship Agreements / Michael P Sampson

By: Hanna Horvath, Policygenius The richest couple in the world is a couple no more. What is a prenup? Jeff Bezos, the CEO of Amazon and the richest man in the world, announced he and his wife, MacKenzie, are getting divorced. The couple hadn’t signed a prenuptial agreement, meaning his soon-to-be ex-wife could be walking away with half of his approximately $136 billion fortune. Michael Sampson, a divorce attorney from Florida, describes it as a “contract between two marrying people and their agreement on how finances will be handled in divorce or in death.” Prenups became prominent after the establishment of no-fault divorces in the 1970s and are becoming more common as couples get married older and sometimes more than once. Sampson said couples typically sign prenups so their kids aren’t disrupted financially by a second marriage or because they have a family inheritance to protect. A prenup is different than a will. Your spouse is entitled to an “elective share” of your entire estate after you die, typically around 30%. If you leave them out of your will, they can make a claim against your estate for that share. Only a prenup would waive your spouse’s elective share, if they agree to it. Sounds romantic. But Sampson argues a prenup forces a couple to discuss something important before their marriage: money. “I think it strengthens the marriage because it forces them to consider certain realities,” he said. “It has couples look at their money in an adult way.” According to a Policygenius survey, one in five couples don’t share money. An even greater percentage don’t discuss finances. This can negatively impact a marriage and lead to divorce, said Sampson. Even if you manage money separately or have it hidden under your mattress, it will almost always come out in a divorce proceeding and be divided evenly. So what’s going to happen to Bezos? Though Bezos’ wealth may make him an exceptional case, Sampson predicts the divorce will proceed like any other: Both parties will disclose their assets to each other, figure out how much they need to pay in child support and disclose any liabilities. A judge will value everything and divide things as equally as possible. Sampson said this high-profile divorce points to the importance of planning ahead. You never know where you’ll be financially (and romantically) in the future. “You get this storybook picture of couples who are in love and think they will never break up,” he said. “They don’t think they need a prenup because they will be together forever. And that’s not always the case.” This article originally appeared on Policygenius.

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Aerial view of houses. Separate Property and Jointly Acquired Property by Domestic Partners

Domestic Partnership Agreements: Separate and Joint Property

Property Distribution, Relationship Agreements / Michael P Sampson

This third installment of a 7-part series about Domestic Partnership Agreements discusses separate and joint property. Separately-Acquired and Jointly-Acquired Property Domestic partnership agreements should list or include an attached schedule of each party’s separate property. If the parties agree, the agreement should protect ownership of property and interests in trusts as separate property. Such agreements typically say how income from separate property will be treated while the couple remains together – will the income also be separate property…or joint? Enhancement in Value of Real and Personal Property Brought into the Relationship Couples may agree, as many do, to allocate any growth in value during their relationship, regardless of the reason for the growth, to the partner who brings the asset into the relationship. Others, however, may take guidance from Florida family law about enhancement in value of premarital real property or premarital accounts. This free real property calculator may help domestic partners provide for allocating growth in real property, like a home, during their relationship if it ends. For assets other than real property, such as accounts a partner has going into the relationship, this calculator may help generate ideas on fairly allocating growth. Generosity With Separate Property Agreements between domestic partners define separately-acquired property. But that doesn’t mean, if either party chooses to share separate assets, trusts, or work during the relationship, the other party can’t benefit. The party may choose how to save or spend such funds. The agreement may allow each party to be generous. Either party may make gifts to the other, to each party’s children, or to others. Jointly Acquired Property Sometimes a party purchases property and titles it in joint names with a partner. When that happens, Florida law ordinarily presumes the party intends to give the other half the value of the property. If either party gives the other funds or property, the agreement typically would provide such gifts would become the recipient’s separate property. Estate Planning Each domestic partner retains freedom to do estate planning. Each person may choose to have a will and trusts. The person may provide upon death for the partner, children, or anyone else. Occasionally, to reassure and provide security for a partner with less means, one partner may commit to making irrevocable estate planning designations or bequests for the other partner. Related Blog Posts Read more about Florida Domestic Partnership Agreements:

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Second Parent Adoption – Florida Reinstates Same Sex Adoption

Jurisdiction and Procedure, Parenting Issues, Relationship Agreements, Timesharing & Custody / Michael P Sampson

In the Matter of the Adoption of D.P.P., 158 So. 3d 633 (Fla. 5th DCA 2014), the Fifth District Court of Appeal reversed an order vacating a second parent adoption. Trial Court Undoes Same Sex Adoption The trial court terminated the parent-child relationship between a mom (G.P.), and the parties’ child and voiding the adoption. Because two unmarried women had filed an uncontested petition for adoption, the court held the circuit court never had subject matter jurisdiction to grant the adoption. The Fifth DCA Resinstates 2d Parent Adoption The Fifth District disagreed and reinstated the adoption and G.P.’s parental relationship with the child. The circuit court had subject matter jurisdiction. The biological mom (C.P.), couldn’t now challenge the adoption she helped procure. The appellate court stated: “it would be unconscionable to allow C.P. to invoke the jurisdiction of the court for the sole purpose of creating a parent-child relationship between G.P. and D.P.P. and then to allow her to destroy that same relationship because her relationship with G.P. has ended.” Adoption by Extended Family Member In D.P.P., a same-sex woman in a committed relationship with her partner raised, then legally adopted, the partner’s biological child. The facts were different in I.B. v. Adoption of Z.E.S., 238 So. 3d 847 (Fla. 4th DCA 2018). In IB, a child’s grandmother petitioned under the Florida Adoption Act to terminate her daughter’s parental rights and adopt the child. The child’s grandfather consented to the adoption, as did the biological mom. The child’s biological dad joined in the grandmother’s petition to terminate the mother’s parental rights and to adopt the child. But he didn’t consent to termination of his own parental rights. Dad and the grandmother acted for 2 years as the child’s de facto co-parents. The child thrived under this arrangement. Had the adoption petition succeeded, they’d have been the child’s two legal parents. Rejecting this attempt, the Fourth District held the dad – already a legal parent – couldn’t be a joint petitioner in an adoption of his own child, to avoid termination of his own parental rights and to add a second parent: the maternal grandmother. Distinguishing D.P.P., the court in I.B. held the moms in D.P.P. were in a “committed” relationship at the time of the adoption. The child was born into a two-parent home where the parents were in a familial relationship with each other and the child. The I.B. court reasoned: “Sanctioning the adoption in D.P.P. was essentially sanctioning adoption by a stepparent because at the time, same-sex marriage was illegal in Florida.” The Legislature has clearly stated its preference that an adoption result in “adoptive parents” raising the adoptee as if the child were “born to such adoptive parents in lawful wedlock.” § 63.032(2). Id. Temporary Custody by Extended Family Member In 2020, the Florida Legislature passed a bill the Governor approved that expanded, effective July 1, 2020, the definition of an “extended family member” who may seek temporary custody of a child. Now an “extended family member” includes a “fictive kin” — someone “unrelated by birth, marriage, or adoption who has an emotionally significant relationship, which possesses the characteristics of a family relationship, to a child.” That means someone who has no relationship to the child by birth, marriage, or adoption will be able to petition for temporary or concurrent custody. Read more about the amended law, parents’ privacy rights, “psychological parents” and the best interest of children in the blog Custody of Children by Extended Family Member.

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