Prenuptual Agreements

[au82tiger]

I am contemplating marriage to a Thai national. I have been told that Prenup agreements are valid if made an addition to the marriage license. I want to make sure that I get this done correctly. I have a prenup written that is valid in my home state (Florida) but it is written in English. I am sure that it would need to be translated into Thai to be valid. Could you tell me please what is the best and most secure way to get this done, (both the translation and the inclusion in the marriage document), and what would be a reasonable cost for doing this?

[mesquite]

OP,

You are definitely thinking along the right lines: Prenup.

It sounds like you plan on getting married and living in Florida, not Thailand. I would suggest talking to an attorney there for all the details, including translation requirements, if any, and how to fulfill them.

This is too important to leave up to TV.

[moto77]

OP: I sent you a PM. Get in touch with me.

If you are entering into a prenuptial agreement with someone whose first language is not English, make sure that each party has an independent attorney of their own choosing (not working for the same firm) and make sure the prenuptial is explained orally in both in English and in Thai at the signing, and VIDEOTAPE THE SIGNING.

And I'll add this for anyone else reading this specific thread:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.079.html

[bangkoken]

I'm a retired attorney from Ft.Lauderdale,Florida. I live in Bangkok with my Thai wife who is an attorney here in Thailand. She has prepared numerous Pre-Nups. The document must be prepared in Thai and English text on the same pages when presented to the district office for approval.The cost varies depending on the number of pages required to be translated.If you have any further questions please refer them to [email protected]

[janpharma]

I'm a retired attorney from Ft.Lauderdale,Florida. I live in Bangkok with my Thai wife who is an attorney here in Thailand. She has prepared numerous Pre-Nups. The document must be prepared in Thai and English text on the same pages when presented to the district office for approval.The cost varies depending on the number of pages required to be translated.If you have any further questions please refer them to [email protected]

All above is correct...Make sure that the translation into Thai is done by a certified (and recognised by your Embassy) translation office. The Thai version has also to mention that your wife agrees and understands the content, this has to be signed by 2 witnesses. You can prepare the document at your home country and validate it at your Embassy, together with your wife.

Good Luck!

[moto77]

I'm a retired attorney from Ft.Lauderdale,Florida. I live in Bangkok with my Thai wife who is an attorney here in Thailand. She has prepared numerous Pre-Nups. The document must be prepared in Thai and English text on the same pages when presented to the district office for approval.The cost varies depending on the number of pages required to be translated.If you have any further questions please refer them to [email protected]

All above is correct...Make sure that the translation into Thai is done by a certified (and recognised by your Embassy) translation office. The Thai version has also to mention that your wife agrees and understands the content, this has to be signed by 2 witnesses. You can prepare the document at your home country and validate it at your Embassy, together with your wife.

Good Luck!

I don't think the USA embassy will get involved. Prenups in America are a State issue.

[Neilcnx]

I was divorced 3 times while in the U.S.: two Jewish American Princesses (JAP) and a Phillipina American Princess (PAP). On each of the 3 ocassions, my wife at the time and I used the same attorney to handle the divorce which was uncontested and amicable. Save the legal fees and find the right woman - they're out there if you're patient and shoot straight.

By the way the difference between a JAP and a PAP is with one, the jewelry is fake and the organsms are real.

[moto77]

I think not getting married at all is better. What's the point?

[HerbalEd]

I was divorced 3 times while in the U.S.: two Jewish American Princesses (JAP) and a Phillipina American Princess (PAP). On each of the 3 ocassions, my wife at the time and I used the same attorney to handle the divorce which was uncontested and amicable. Save the legal fees and find the right woman - they're out there if you're patient and shoot straight.

Re. OP's "Save the legal fees and find the right woman ..." With three marriages ending in three divorces, I wouldn't say this guy's good at finding the "right woman" ... also, evidently he's much better at spotting fake jewelry that fake orgasms.

[fdbob]

I was divorced 3 times while in the U.S.: two Jewish American Princesses (JAP) and a Phillipina American Princess (PAP). On each of the 3 ocassions, my wife at the time and I used the same attorney to handle the divorce which was uncontested and amicable. Save the legal fees and find the right woman - they're out there if you're patient and shoot straight.

Re. OP's "Save the legal fees and find the right woman ..." With three marriages ending in three divorces, I wouldn't say this guy's good at finding the "right woman" ... also, evidently he's much better at spotting fake jewelry that fake orgasms.

Couldn't have said it better.

[Straight8]

I think not getting married at all is better. What's the point?

Bit hard to disagree with you on that one, especially with Farang - Thai marriages.

[Guest]

tell me if i am wrong but isnt it easier to have a 'O' type visa than a 'B' with regard to staying in Thailand

[moto77]

tell me if i am wrong but isnt it easier to have a 'O' type visa than a 'B' with regard to staying in Thailand

It depends on how you got your B. If you have a job in Thailand and a work permit, I think a B is equally easy. If you're just hanging around, then you're right.

(And they accuse women of getting married for visas... sheesh )

[NanLaew]

Rent, don't buy.

I dig the bit about "VIDEOTAPE THE SIGNING"...<deleted>?

[ozsamurai]

If you actually do any research in to prenups, you will find they are not worth the paper they are written on if there is any problem and the end of a relationship, either party can contest it easily with legal representation. This especially holds true if the language used is not native to one of the signatories. Some included legal problems are, if independent lawyers are not used, constant revision of said contract etc etc etc.... Its a bluff. Just don't let her know that! Do some more homework.

Oz

[Mario2008]

If you plan to live in the US you will need a prenup that complies with both Thai law and the law of the state you are planning to live.

In addition, it is advisable to make sure your wife has her own legal council/lawyer. If not, it can be contested based on that she didn't know what she was signing and you had legal representation and she not.

[moto77]

If you actually do any research in to prenups, you will find they are not worth the paper they are written on if there is any problem and the end of a relationship, either party can contest it easily with legal representation. This especially holds true if the language used is not native to one of the signatories. Some included legal problems are, if independent lawyers are not used, constant revision of said contract etc etc etc.... Its a bluff. Just don't let her know that! Do some more homework.

Oz

I got divorced with a prenup in Florida and I can tell you first hand that you are completely wrong about this. Don't mislead people about what you don't know. It does somewhat depend on the STATE, however. Be sure to put in the prenup that if it is contested and upheld that the contesting party will pay the legal expenses of BOTH parties. This usually prevents them from being contested in the first place.

Florida WILL uphold prenups if they meet Florida guidelines (which I posted in the link above).

[moto77]

If you plan to live in the US you will need a prenup that complies with both Thai law and the law of the state you are planning to live.

In addition, it is advisable to make sure your wife has her own legal council/lawyer. If not, it can be contested based on that she didn't know what she was signing and you had legal representation and she not.

No you don't. It only needs to comply with the law of the jurisdiction where you are planning to marry and live. If you will marry and live in a US State, it does NOT need to comply with Thai law.

Independent council is not required in Florida, but it may help to establish that there was no overreaching.

AND VIDEOTAPE THE ENTIRE SIGNING, especially the part where the document is explained to your fiancee in Thai by her own attorney!

[au82tiger]

I want to thank everyone for their comments and all of the information provided. I have copied and pasted them all. My personal feeling is that an ounce of prevention is worth a pound of cure. I personally know several who've been saved by iron-clad prenups in Florida. I also talked to several attorneys, including my last attorney in my second divorce in Florida from a Thai woman who I met in the US. She (my attorney) told me that if I ever married again without a prenup that she felt that she would have grounds to have me committed to a mental institution. So I will have a prenup before I marry anyone again... because in Florida (an equal distribution state) you can loose everything. I am too old to start over again. She will have an attorney here in Thailand I am sure... the prenup will be in both languages, and it will protect both of us in our countries. Thanks to Moto77 I have some items for inclusion that I had been either unaware of or that I just forgot about... and I am very grateful. I don't think of a prenup as a detriment to marriage, but rather a decision before the marriage about how things will be handled in the event that the marriage doesn't work, while both parties are thinking and acting rationally. If she will not sign, we will not marry... and if she will sign, which she has already agreed to, and we do not part ways, she will be very comfortable if she out-lives me. Once again ...thank you to everyone for your input. Tim

[jcnbkk]

I'm a retired attorney from Ft.Lauderdale,Florida. I live in Bangkok with my Thai wife who is an attorney here in Thailand. She has prepared numerous Pre-Nups. The document must be prepared in Thai and English text on the same pages when presented to the district office for approval.The cost varies depending on the number of pages required to be translated.If you have any further questions please refer them to [email protected]

All above is correct...Make sure that the translation into Thai is done by a certified (and recognised by your Embassy) translation office. The Thai version has also to mention that your wife agrees and understands the content, this has to be signed by 2 witnesses. You can prepare the document at your home country and validate it at your Embassy, together with your wife.

Good Luck!

Thanks to you both for the advice. And for your email Bangkoken.

[ozsamurai]

http://www.forbes.com/sites/jefflanders/2013/04/02/five-reasons-your-prenup-might-be-invalid/

http://www.cmrlawyers.com.au/prenups.asp

yeah I know nothing......

Oz

[moto77]

http://www.forbes.com/sites/jefflanders/2013/04/02/five-reasons-your-prenup-might-be-invalid/

http://www.cmrlawyers.com.au/prenups.asp

yeah I know nothing......

Oz

Yeah, I said that already.

The first lists five reasons. Almost every state law lists the first three in their prenup law and anyone with any sense wouldn't violate those. Fraud? Carelessness? Duress? LOL. The last two are NOT reasons that a prenup can be invalidated in Florida. Those two only apply to certain states.

The second one deals with Australia and the OP is planning to live in America, so it is completely irrelevant to this discussion.

[ozsamurai]

http://www.pankauskilawfirm.com/blog/2014/01/florida-appeals-court-voids-prenup---reversing-florida-divorce-court----very-important-florida-divor.shtml

Challenges to Validity:

*** Casto v. Casto, 508 So. 2d 330 (Fla. 1987).

There are two methods to challenge the validity of prenuptial and postnuptial agreements:

Direct Method: An agreement may be set aside or modified upon establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

Indirect Method: The challenging spouse must establish that the Agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Once unfairness is established, a presumption arises that there was either concealment or a presumed lack of knowledge of the defending spouse’s finances at the time the agreement was reached. The burden then shifts to the defending spouse. The presumption can be rebutted upon a showing that:

1. the defending spouse made full, frank financial disclosure; or
2. the challenging spouse had a general knowledge of the character and extent of the other party’s assets and income.

The test in this regard is 1) the adequacy of the challenging spouse’s knowledge at the time of the agreement; and 2) whether the challenging spouse was prejudiced by the lack of information.

Grounds that are NOT sufficient to overturn an agreement:

1. A bad bargain, by itself, is not sufficient grounds to set an agreement aside;
2. A bad fiscal bargain that appears unreasonable can still be knowledgably entered into for reasons other than insufficient knowledge of assets and income; if an agreement that is unreasonable is nonetheless freely entered into, it is still enforceable; and
3. Lack of competent assistance of counsel is no basis to vacate an agreement.

Casey v. Cohen, 740 So. 2d 59 (Fla. 4th DCA 1999). Where a party challenges that an agreement should be set aside due to fraud or misrepresentation, that party must demonstrate that the misrepresentation or concealed fact is material to the transaction.

Francavilla v. Francavilla, 969 So. 2d 522 (Fla. 4th DCA 2007), Establishes factors necessary to establish duress. It held that in order to set aside a prenuptial agreement based on duress:

1. The agreement sought to be set aside had to be effected involuntarily and not as an exercise of free choice or will; and

2. That this condition of mind was caused by some improper or coercive conduct of the other spouse. A spouse’s ultimatum that the marriage would not occur without a prenuptial agreement being signed does not constitute duress, because there is nothing improper about taking such a position. Being seven months pregnant on the day of the wedding, the time the agreement was signed does not constitute duress.

Tanner v. Tanner, 975 So. 2d 1190 (Fla. 1st DCA 2008). No overreaching found. Facts supported nothing other than the Wife’s buyer’s remorse.

Waton v. Waton, 887 So. 2d 419 (Fla. 4th DCA 2004), Disclosure of ownership in insurance company with no value listed sufficient to give the Wife a general knowledge of the Husband’s assets, particularly when the Wife never sought clarification or requested any additional information.

Gordon v. Gordon, 25 So. 3d 615 (Fla. 4th DCA 2009). Agreement upheld when Husband did not disclose airline pension. The Husband had disclosed substantial assets, and the undisclosed pension plan constituted only a small fraction of his net worth.

Uniform Premarital Agreement Act:

§61.079, Florida Statues:

1. Requires a premarital agreement be in writing and signed by both parties.

2. Allows the parties to address all substantive rights in the agreement.

3. Provides that after marriage, a premarital agreement may only be amended, revoked or abandoned by a written agreement signed by both parties.

4. Identifies the basis under which a premarital agreement is not enforceable:

The party did not execute the agreement voluntarily;

a) The agreement was the product of fraud, duress, coercion, or overreaching;

The agreement was unconscionable when it was executed and before execution of the agreement the complaining party:

(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party,

(ii) did not voluntarily and expressly waive in writing any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii) did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.

Unenforceable Agreements:

McNamara v. McNamara, 40 So. 3d 78 (Fla. 5th DCA 2010). A contract is not void, as against public policy, unless it is injurious to the interest of the public, or contravenes some established interest in society

Hoffman v. Boyd, 698 So. 2d 346 (Fla. 4th DCA 1997). A married man’s written agreement to support a woman indefinitely if he did not marry her within a specified period of time was void and unenforceable based upon public policy and Florida Statutes.

Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996). Casto, however, is not dispositive on child support, custody, and visitation, and a trial court may still set an agreement aside in regard to those issues if the agreement is not in the best interest of the children.

§61.079(4)(, Florida Statutes. The right of a child to support may not be adversely affected by a premarital agreement.

§741.212, Florida Statutes. Marriages between persons of the same sex states that marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state

Temporary Support:

Aguilar v. Montero, 992 So. 2d 872 (Fla. 3d DCA 2008). Notwithstanding language in the prenuptial agreement to the contrary, the Wife was entitled to temporary support.

Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972). It is against the public policy to enforce any provisions waiving temporary support.

Lord v. Lord, 993 So. 2d 562, (Fla. 4th DCA 2008). A provision in a premarital agreement that waives each party’s claim for attorney’s fees and costs cannot be applied to preclude an award of temporary attorney’s fees.

Higginbotham v. Higginbotham, 52 So. 3d 806 (Fla. 3d DCA 2011). Wife was not limited to $5,000 cap on attorney’s fees as set forth in the parties’ prenuptial agreement, however, temporary fee award of $305,640.00 was excessive.

Attorneys’ Fees:

Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005). Provisions in prenuptial agreements that award attorney’s fees to the prevailing party in any action to enforce the agreement are enforceable.

Appreciation:

Worley v. Worley, 855 So. 2d 632 (Fla. 2d DCA 2003). Agreement that provided in part “any property, either real or personal, acquired by either prospective spouse, before or after their marriage, shall be the separate property of the party owning or obtaining the property and the other party shall make no claim…” The court found that the agreement did not operate to waive the active appreciation.

Witowski v. Witowski, 758 So. 2d 1181 (Fla. 2d DCA 2000). Husband had a vested interest in an United States Postal Service Retirement Fund, which he had fully disclosed. The prenuptial agreement provided that the Husband would retain all right, title and interest in and possession of whatever assets listed above which he may still own at the time of such dissolution of marriage. The court found that without a specific provision waiving the Husband’s salary, which in turn funded his retirement fund, the appreciation in the Husband’s retirement fund was marital subject to division.

Irwin v. Irwin, 857 So. 2d 247 (Fla. 2d DCA 2003). The release of marital rights affected any property owned by Husband at any time, whether such property is acquired or held prior to or during the marriage, or whether held in his name alone or in both of their names, jointly or as tenants in common. Agreement did not specifically waive Husband’s active appreciation.

Valdes v. Valdes, 894 So. 2d 264 (Fla. 3d DCA 2004). Agreement was silent as to the enhanced value of non-marital properties and did not prevent Wife from seeking equitable distribution of the enhanced value of non-marital properties.

Doig v. Doig, 787 So. 2d 100 (Fla. 2d DCA 2001). Agreement which stated “neither party shall make any claim or acquire any interest in the other party’s separate property if it increases in value during the marriage” only protects passive appreciation. Appreciation resulting from marital labor was not protected.

[moto77]

Dude, just stop. You are posting random case law that you do not know how to interpret.

For example, my attorney used Castro vs. Castro to successfully defend my prenup in Florida. It was a Florida case.

*I* had a prenup IN FLORIDA that WAS UPHELD by the courts--FACT. That trumps your legal theory.

There were things I could have done better which would have reduced my defense costs, but Florida regularly upholds prenups, regardless of what you post. The Florida Supreme Court has even awarded attorneys' fees against the spouse attempting to set the prenuptial agreement aside.

Is there a risk? Yes. I'm not sure that I would marry again. But to say that prenups are worthless in every jurisdiction) is to be ignorant of current legal practice. In your home country of Australia, you might be correct, but that is NOT the case in the US or UK.

[moto77]

Please delete.

[jack19201]

Hi, you can pay and download forms written in English and in Thai side by side. Web site called samuiforsale, and used one last week and was excepted by the court at the time of marriage. You do not solicitor just present to judge at the marriage and you both sign in front of Judge and together with one witness from both of you, that's it. Good luck.

[moto77]

Downloaded forms might be ok if your situation is VERY simple and in Thailand. But if you are going to live in the US/UK/Canada and have or are likely to have substantial assets, I think you would be crazy not to use an attorney IN THE JURISDICTION IN WHICH YOU PLAN TO LIVE.

[jack19201]

It is not just downloaded forms, it is a properly written by solicitor and clearly says neither of the party can claim pre marriage assets. Of course you have to pay to download.look and pre read the forms before jumping the gun.choice is yours, I m from the UK.take care

[moto77]

Maybe it is a UK document then. But there is not a one-size fits all prenup that will work in every jurisdiction. For example, in Florida you have to disclose your income and assets (or you can waive disclosure in the prenup document)--if one of these two things is not there, the prenup is invalid regardless of how well it is written. Also, what if you had a business (or planned to start one) do off the shelf forms handle that situation? Do they handle the distribution of assets when you die? There are many potential issues.

[jack19201]

Hi, not one form, You get two sets of forms one p agreement and the second form is where you both declare your assets, you hand in to Judge at the time of marriage and after judge reads and asks to you both if agree you both happy with itthen you both sign in front of judge with one witness from both party. You can in these form any thing you not agree because form are in word format. OK. Good luck