Can Spouses Waive Rights To Assets Accumulated During Marriage?Noreen Marcus
DIANNE L. HAHAMOVITCH, APPELLANT, V. HARRY H. HAHAMOVITCH, APPELLEE
Case No.: 4D10-3051
Date: Jan. 8, 2014
Case type: Divorce, prenuptial agreements, alimony
Court: Fourth District Court of Appeal
Author of opinion: Judge Carole Y. Taylor
Lawyer for petitioner: Jeanne C. Brady, Brady & Brady, Boca Raton
Lawyer for respondent: Joel M. Weissman, Joel M. Weissman P.A., West Palm Beach
Panel: Taylor and Judges Burton C. Conner and Mark W. Klingensmith
Originating court: Palm Beach Circuit Court
Litigation that will help guide the drafting of prenuptial agreements is on its way to the Florida Supreme Court.
Ruling on a trio of cases from the divorce of a Palm Beach County couple, a state appellate court singled out one for Tallahassee by certifying conflict with other districts over a question of great public importance.
Depending on how that question is answered, lawyers who serve prospective spouses will know how specifically to craft waivers in the popular pre-marriage documents.
Here, the Fourth District Court of Appeal read a 1986 prenuptial contract as broad enough to waive the wife's claim to the husband's assets accumulated during the couple's marriage of more than 20 years. Such assets generally are subject to equitable distribution because they were either acquired during the marriage or appreciated due to both parties' efforts.
The panel acknowledged that if the couple lived in Tampa or Miami, presided over by the Second and Third district courts, respectively, the outcome may well have been different.
"So the Fourth is requesting the Supreme Court to affirm their position that where the global language is clear that there has been a waiver, it isn't necessary to further specify the same in some fashion," said Joel Weissman, the attorney for the husband, Harry Hahamovitch.
Weissman, who has his own firm in West Palm Beach, carried the day with his argument that "the language was clear enough to address the understanding of what the intent of the parties was then and going forward."
Still, he stressed that he didn't write the 1986 prenup.
In a footnote, Fourth District Judge Carole Taylor cited "convoluted provisions" governing how much the wife, Dianne Hahamovitch, would receive if the couple divorced. After 20 years, the sum is $1.9 million, to be paid over seven years. The husband has been a mortgage broker and financial planner.
Obviously unhappy with the prenup's terms, Dianne Hahamovitch filed a challenge in Palm Beach Circuit Court. Her appellate lawyer, Jeanne Brady of Brady & Brady in Boca Raton, did not respond to a request for comment by deadline.
Palm Beach Circuit Judge Martin Colin interpreted the language of the prenuptial agreement to waive the wife's claims to the husband's property acquired during the marriage. He ruled she also waived the right to try to get bigger alimony payments.
The Fourth District affirmed on the first point and reversed on the second.
The court highlighted four separate prenuptial provisions, two of them in particular:
"Dianne hereby waives and releases, and is hereby barred from any and all rights and claims of every kind, nature and description … [including] alimony, equitable distribution, division of property," the agreement said. "If Harry purchases, acquires or otherwise obtains property in his own name, then Harry shall be the sole owner of same."
The issue was how specific a waiver must be to establish that the couple undoubtedly meant to deprive the wife of the fruits of her labor.
In a 2012 decision, Weymouth v. Weymouth, the same court said the wife did not waive her right to the appreciation of a house that was her husband's before the marriage. The waiver in the prenuptial agreement specifically covered the husband's nonmarital assets, but the court faulted it for not mentioning "growth or appreciation."
The Hahamovitch panel distinguished Weymouth on the basis that the prenup in that case "did not address the future acquisition of property."
In the Hahamovitch case, it did, according to the court. "If the prenuptial agreement is to effectively shield the husband's assets from the wife's claims, it must also include any appreciation in value."
What Harry acquired and enhanced, Harry would get to keep.
The court certified this question:
"Where a prenuptial agreement provides that neither spouse will ever claim any interest in the other's property, states that each spouse shall be the sole owner of property purchased or acquired in his or her name, and contains language purporting to waive and release all rights and claims that a spouse may be entitled to as a result of the marriage, do such provisions serve to waive a spouse's right to any share of assets titled in the other spouse's name, even if those assets were acquired during the marriage due to the parties' marital efforts?"
The court approached alimony differently. Although the waiver mentions alimony in a general way, "it was silent on modification of alimony," Taylor wrote. Silence would not be construed against the wife in this context.
Also, Taylor seemed to suggest the agreement could not prohibit a judge from reviewing and changing an alimony obligation.
"The intent of the panel was when it came to spousal support, as opposed to division of property, they desired to address it more specifically and not as globally as done in the agreement," Weissman said. "From a drafter's perspective, the support provisions in the future should be carefully and articulately drafted to emphasize the waiver of alimony."
He said pending legislation may make the alimony issue a moot point in the Hahamovitch case.
Last year, the Legislature passed Senate Bill 718 to address alimony law. Gov. Rick Scott vetoed it, saying he was concerned about its retroactive application to divorced couples.
A group called Family Law Reform hopes the removal of retroactivity in the next session will be enough to gain Scott's signature. One provision would modify or end alimony payments when the paying spouse reaches retirement age.
Harry Hahamovitch is over 65, Weissman noted.