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Filing# 195696524 E-Filed 04/08/2024 01:52:47 PM
IN THE CIRCUITCOURT OF THE 17
7TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
IN RE:THE MARRIAGE OF- CASE NO.:
LOUIS MARTIN FISCHLER,
FAMILY DIVISION
Petitioner/Husband,
and
MARIA DUQUE,
Respondent/Wife.
i
MOTION FOR BIFURCATION AND DETERMINATION
OF THE VALIDITY OF THE POSTNUPTIAL AGREEMENT
AND FOR REATED RELIEF
COMES NOW, the Petitioner/Husband, LOUIS MARTIN FISCHLER, on his own
verification and by and through his undersigned counsel,and files this,his Motion for Bifurcation
Agreement and for Related Relief,and in
and Determination of the Validityof the Postnuptial
support thereof,states as follows:
1. The Husband incorporates
his Petition as if fullyset forth herein to avoid unnecessary
repetition.
2. The partieswere married to each other on February 28, 2010 in Boca Raton, Florida,
without a prenuptial
agreement.
3 Both partieshad been previouslymarried. The Wife had one child from her prior
marriage.The Husband had two children from his priormarriage.
4. On March 20,2023, executed a Postnuptial
the parties Agreement, attached hereto as
Exhibit "A." The Husband seeks to invalidate this Agreement for the reasons set forth hereinbelow,
but broadlyfor fraud and overreaching.
1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/08/2024 01:52:45 PM.****
5. Significantly, were previouslymarried and came
both parties to the marriage with real
property, to wit:
a. The Husband came to the marriage with the property known as 7341 Amberly Lane,
#404, Delray Beach, Florida, which he received in his previousdivorce. In 2013, the
Wife took a HELOC on her premaritalproperty and used the funds to pay off this
property, and the Husband added her to the deed. The Husband commenced paying half
of the monthly loan payments by transfer to the Wife in 2015. This property is currently
valued at $325,000.00.
b. The Wife came to the marriagewith the property known as 802 CongressionalWay,
Deerfield Beach, Florida,which she received from a priordivorce in June of 2000. This
valued at $315,000.00 and is subjectto a mortgage ofapproximately
property is currently
$17,000.00,leavingequityof approximately$298,000.00.
6. During the intact marriage,on November 2, 2021, the Husband purchased a 11061
Dawnview Lane, Orlando for $425,000.00. It is presentlyvalued at $512,300.00 and subjectto a
mortgage of approximately$365,000.00, leavingequityof approximately$147,300.00.
7. The Husband also held the followingfinancial accounts, some of which contained
marital funds,to
partially wit:
a. Robinhood accounts containinga combined $ 20,000.00
b. 401K containingapproximately $ 45,000.00
C Mass Mutual account with approximately $ 25,000.00
d. National Western Annuity $165,000.00
e. Oxford Insurance Annuity $175,000.00
8 The Wife held the followingfinancial accounts, some of which contained partially
marital funds,to wit:
a.
Fidelity $ 87,000.00
b. Annuity $ 39,000.00
2
C IRA $101,000.00
d. Pension in pay status $627.75/month
9- The Husband requests that the Court bifurcate this matter for determination of the
Agreement onthebasis offraud and overreaching,
ofthe Postnuptial
validity andthe followingevents
form the basis ofthat request.
10. The Wife is apracticingRegisteredNurse forover thirty(30)years, working at Delray
Medical Center, and who also worked at Boca Raton Regional Hospital(now owned by Baptist
Health South Florida)and Florida Medical Center. This gave her much greater than average
knowledge ofthe Husband's cognitiveand mental condition as further set forth herein.
11. In the first quarter of 2022, the Husband was diagnosedwith MCI (Mild Cognitive
Impairment) and MDD (Major DepressiveDisorder).This was at the Wife's suggestion,who asked
that he undergo numerous neurological
studies and an MRI given his familyhistoryof mental illness
towards the end of 2021.
12. In late 2022 and early2023, the Husband was subjectto a series of abusive events at
the hands of his employer's CEO and CFO, duringwhich he was yelledat, asked if he had memory
issues,talked about behind his back by a group of employees in reference to his having "dementia,"
and asked to work fewer days,all ofwhich affected him emotionallyand all ofwhich were known to
the Wife.
13. On February 7, 2023, the Husband was diagnosed with Early Onset Dementia.
Subsequently,also in February of 2023, the parties
discussed estate planning.
14 The Wife located attorney Edward Chandler through her legalinsurance plan from
Delray Medical Center. Upon information and belief,he should not have representedeither party, as
matters in which there is a conflict of interest between the insured and their spouse are excluded from
the as
policyprovisions to a secondaryinsured such as the Husband herein. Furthermore, any legal
3
work regardingproperties
for which a partic*antis an investor or landlord with regardto the property
issue is also excluded under the plan.The Wife had Mr. Chandler place all of the aforementioned
into corporationsin a manner that was intended to favor the Wife. The Husband was not
properties
advised that the deeds were againsthis interests. The Wife executed a waiver of conflict as to
Chandler preparingestate planningdocuments for both parties.
15. Upon information and belief,Mr. Chandler also prepared other estate planning
documents which only stated what would happen if the Husband died first and not the other way
around. The Husband felt that this was wrong and asked how this could be fixed. It was suggestedto
him that a postnuptial
agreement could fix this issue.
16. On March 8, 2023, both partiescontracted COVID-19, and the Husband was
ultimatelydiagnosed as a Covid Long Hauler.1
17. Also on March 8,2023, the Wife executed a financial affidavit listing
assets and
liabilities (but with no back-up documentation) and PostnuptialAgreement prepared at some
unknown pointpriorto that by Mr. Chandler, an Agreement that heavilyfavored the Wife, not only
from a financial but by giving her the Husband's premaritalproperty and her own
standpoint,
property. Prior to that,Mr. Chandler told the Wife that she needed her own attorney to look
premarital
at the Dvora Weinreb,
agreement, and the Wife had retained a separate attorney for herself, who does
not hold herself out as a divorce attorney. Ms. Weinreb also executed the Agreement on March 8,
Long COVID a condition wherein the symptoms of COVID-19 persistfor weeks,
1
is
months, or even years. The symptoms include chronic pain,brain fog,shortness of breath,chest
pain,and intense,debilitating See Kathy Katella,What Happens When You Still Have
fatigue.
Long COVID Symptoms?, Yale Medicine, Family Health, October 27,2023,
https://www.yalemedicine.
symptoms#:-:text==Long%20COVID%2C%20the%20condition%20where,intense%20fatigue%2
C%20can%20be%20debilitating.
4
2023. The Agreement states that the Wife is waiving the conflict of interest caused by Mr. Chandler's
Although,that separate waiver
priorrepresentation. is not attached to the document.
18. On March 20, 2023, the Husband executed an affidavits listing
assets and liabilities,
and the Postnuptial
Agreement that gave the Wife the Delray home, the Deerfield home, and all of
her financial assets, leavingthe Husband with the Orlando home, which has a largemortgage and his
financial accounts, a net benefit o f $231,000 to the Wife, leavingthe Husband with one home which
is subjectto a mortgage many times the size ofthe mortgages for the other two properties
combined.
It should be noted that the Husband still had Covid-19. Mr. Chandler strangelydid not execute the
Agreement
Postnuptial until March 24,2023, did not notarize the Husband's affidavit,
and did not
notarize the affidavit.
self-proof
19. The Husband has no recollection of anyone explainingto him that he was givingaway
property, that he was signinga materially
to his premarital
rights unfair agreement, or any legaladvice
for that matter. However, he knows that if he understood that he was waiving rightsin his premarital
property, he would never have signedthe Postnuptial
Agreement, and he believes that he only would
have signedthe document as a result of his mental condition.
20. On March 23,2023, the Husband reached out to his primaryphysicianabout increased
anxietyand depressionand requestedmedication, and on that same day,given the aforementioned
abusive work environment and increased depression,
he walked out of his office for good. A few
the Husband appliedwith AFLAC
weeks after resigning, to claim and was provided
use his disability
the maximum amount available under the policy.
21. On April3, 2023, the Husband was voluntarily
committed to Delray Medical Center
due to suicidal ideation and was subsequently transferred to another facilityfor professional
assistance.
5
22. In or about January of 2024, the Wife requesteda divorce,and when the Husband
stated that he justwanted his premaritalproperty in the divorce,the Wife informed him that it was
not his anymore, and she was not returningit.
23. For all of the above reasons, the Husband asks that the Court to bifurcate the matter
and hold a hearingon the validity
ofthe Postnuptial
Agreement priorto any trial ofthis cause.
24. The PostnuptialAgreement violates Florida's laws and publicpolicies
regardingthe
ofits
protections citizens in but not limited to the following:
mult*le ways, including,
a. The Husband did not have fullyindependentlegalrepresentation
nor the capacityto
understand the implicationsof the conflicts of interest involved in both the estate
planningwork and the Postnuptial
Agreement.
b. The financial disclosures and the Agreement are executed the same day,evidencinga
lack of sufficient time for review and reflection.
c. The Husband did not have either full and fair financial disclosures by the Wife or
adequate knowledge of her finances,as he later learned that she omitted a retirement
account containingapproximately$100,000.00. The lack of actual disclosures should
serve to invalidate the agreement given Florida's strong public policy for either a
general knowledge of the other parties'finances at the time of the agreement or
disclosure and the failure of the agreement to make reasonable provisionfor the
Husband, who was known to have earlyonset dementia and a likelyinability
to pay
offthe very substantial See Casto v. Del Fecchio
Casto, 508 So.2d 330 at 333 (citing
v. Del Fecchio, 143 So.2d 17, 20 (Fla.1962)).
d. The Agreement fails for lack of consideration. The Husband receives nothing for
givingup his rightsin these assets.
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e. The Agreement fails to made "fair" or "reasonable" provisionfor the Petitioner by
forcinghim to agree that if he needs to the Wife
or institutionalized,
hospitalized may
recover anything she expends from the Husband's estate despite giving the Wife
more property and cash and despitethe
substantially fact that the Husband was known to
be diagnosed with earlyonset dementia. Belcher v. Belcher, 271 So.2d 7 (Fla.1972).
The ofthe
Petitioner is requestingthe bifurcation ofthis matter to determine the validity
purportedPostnuptial
Agreement.
25. It is abundantly clear that to make this less expensive and to promote
litigation
purportedPostnuptialAgreement should be severed and bifurcated.
judicialeconomy, the parties'
Once severed and bifurcated,the Court should ultimatelydetermine that the Agreement is
unenforceable.
26. The relief sought here is not a classic "bifurcation" because the Petitioner is not
requestingan expedited Final Judgment without reservation as discouraged by Claughton v.
Claughton, 393 So.2d 1061 (Fla.1980). Rather, he is requestinga bifurcation like that sought in
Caldwell v. Caldwell, 915 So.2d 728, (Fla.5thDCA 2005),seekingsolelyto determine the validity
of the prenuptialagreement first. See Johnson v. Johnson, 715 So.2d 1209 (Fla.3d DCA 1999)
(Trialcourt, in bifurcatingand holding a separate trial solelyon the validityof the prenuptial
agreement, committed no reversible error in findingthe prenuptial
agreement to be valid or in the
decisions it made in the second phase ofthe trial),
review denied, 735 So.2d 1285 (Fla 1999);Khan
v. Khan, 79 So.3d 99,104 (Fla.4?
th
DCA 2012) (recognizing,in dicta,that litigation
the preliminary
questionof enforceability
of the prenuptialagreement priorto conductingsubstantial discovery
regarding normal issues in a dissolution of marriage proceedings can significantly
and litigation
reduce the amount of fees).This is also consistent with Florida Family Law rule 12.270.
7
27. The Petitioner has incurred reasonable attorney'sfees and costs in the preparation
of this Motion and will incur additional fees in the prosecution of same. Those fees should
appropriatelybe taxed against the Respondent consistent with this Court's inherent authority
should the Respondent unreasonablyresist.
WHEREFORE, the Petitioner/Husband, LOUIS MARTIN FISCHLER, prays for an
Order grantingall relief sought herein and all other relief as is deemed justand reasonable under
the circumstances.
DATED: April 8,2024.
Respectfully submitted:
CABANAS LAW, PA
18503 Pines Blvd., Suite 301
Pembroke Pines,FL 33029
(954) 447-2580 / Fax (954) 447-2959
E-mail: Eservice@cabanaslawfirm.com
Gbennasar@cabanaslawiirm.com
Lgrossman@cabanaslawfhrm. com
By: /S/Laura J. Grossman, Esq. (115207) for
Sergio Cabanas, Esquire
Florida Bar 898028
Attorneyfor Husband
8
POSTNUPTIAL AGREEMENT
EXHIBIT A
Page 1 of 29
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'-o.f-2
TABLE OF CONTENTS
1. Consideration and Effective Date of Agreement
2. SeparatePropertyDefined
3. Earnings During Marriage
4. Separateproperty
5. Contributions and accumulations in retirement plans and accounts
6. Waiver of Rights and Claims To SeparateProperty
7. Joint Property
8. No Marital Assets
9. Gifts Made Between the Parties During Marriage
10. Retirement Benefits
11. Homestead
12. Release
13. Alimony
14. PropertyDivision On Dissolution Of Marriage
15. Waiver of Rights Upon Death
16. Dispositionof Property at the Death of a Party
17. IndependentLegal Counsel
18. Cohabitation
19. Debts
20. Children by Previous Marriages or other
21. Child Support
22. Financial Disclosure
23. Tax Returns
24. Integration
25. Right To Contest
26. Binding on Successors
27. Public Policy
28. Severability
29. Contractual Agreement
30. Drafting
31. Modification and Waiver
32. Change in Circumstances
33. Waiver of Defenses to Enforcement of Agreement
34. State Law
35. Joint Acknowledgments
36. Voluntary Execution of wife
37. Voluntary Execution of husband
38. Definition of Terms Applicableto this Agreement
Page 2 of 29
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FKJF
POSTNUPTIAL AGREEMENT
THIS AGREEMENT is made and entered into thisQ- day of LGr011
UW
,2023, by
and between LOUIS MARTIN FISCHLER, a resident of Broward County, Florida, hereinafter
Husband, and MARIA DUQUE, a resident of Broward County, Florida,hereinafter Wife, who
shall known herein as "the parties."
be collectively
WHEREAS the partieswere married on February 28, 2010 in Delray Beach, Florida
and are presentlymarried. The partiesdesire to fix and determine various financial relationships
that applyduringtheir marriageand upon the termination of their marriage whether by death,
divorce or otherwise;
WHEREAS, information about each of the parties'assets, liabilitiesand approximate
current income has been exchanged priorto enteringinto this Agreement and made a part hereof;
WHEREAS, each party has had the opportunityto fullydiscuss the financial
circumstances of the other party;
WHEREAS, each party enters into this Agreement freelyand under no duress or undue
influence upon his or her decision to sign.
The premises being considered,upon consideration of the mutual promises hereinafter set
forth of which are
and for other good and valuable considerations,the receiptand sufficiency
hereby acknowledged,the partiesagree as follows:
Consideration and Effective Date of Agreement. The partiesacknowledge that the
1.
provisionsof this Agreement are the consideration for the Agreement and are sufficient
consideration to support it. Further, the effective date of this Agreement is the date of execution.
Separate Property Defined. As used in this Agreement, the term "SeparateProperty"
2.
means rightsand interests in property of any kind, includingcontingentinterests,owned by
all
each party on the effective date of this Agreement.All of the tangibleand intangible real and
personalproperty, includingbut not limited to any interest in any business enterprise and
retirement plan that each party now owns or subsequentlyacquiresin his or her individual name
or trust name, and any income received on that property, and any increases in value or quantity
of that property, will remain the sole and separate property of that party throughoutthe marriage
regardlessof the parties' contributions,financial or otherwise, and equal or unequal.The term
"SeparateProperty",as used in this agreement, is further defined below.
3. Earnings During Marriage:
Passive Income. Passive income derived from property of any type shall have the same
character for purposes of this Agreement as the property from which it is derived. Thus, passive
income from SeparatePropertyearned or accruingafter the effective date of this Agreement
shall be the SeparateProperty of the owner of that asset. Likewise, passive income from marital
Page 3 of 29
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or community property shall have that character once earned or accrued.
The term "passiveincome" means dividends, capital
a. gains,interest,rents, royalties,
and
disruptions other income accrued from property of a party and obtained after the effective
date of this agreement.
in
The term "passiveincome" also includes accrued but unrecognizedappreciation
b. the
assets classified as Separate
value of capital Property.
c. In the case of ownership of interests in all dividends therefrom
corporations, are to be
considered passive.
case of ownership of interests in trusts and partnerships
d. In the which do not operate a
all distributions and income
business enterprise, allocations therefrom to a party are to be
considered passive.
limited liability
companies
e. ownership of interests in trusts, partnerships,
In the case of
(LLCs), corporations, and like business entities which operate a business enterprise,
all
distributions and income allocations therefrom to a party are to be considered passiveunless a
in the business.
participates
party materially
Where a party materially in a business
participates
operated by a partnership,
trust, LLC, corporation, or like business entity,all income and
distributions from said entityare to be treated as earned income.
Income not fallingwithin the definition of "passiveincome" is to be considered earned
f.
income and treated as set forth in the next section entitled,"EarningsDuring Marriage-Earned
Income".
g.The term "materiallyparticipates" has the same meaning as given under the tax laws of
the United States (Title26, USC) for determining when a partner materially
participatesin a
partnership.
Earned Income.
a. income of the partiesduring the marriage shall be considered the
All of the earned
SeparatePropertyof either party duringthe marriage.
b.The term "earned income" means any income obtained by a party after the effective
date of this Agreement that does not meet the definition of passive income as set forth in the
are not limited to, salaryand bonus from
previoussection. Types of earned income include,but
as an independentcontractor,
employment, earningsderived from the performanceof services
real estate income, rents, and income derived from a business run as a sole proprietorship.
and control of their
4. SeparateProperty. Each of the partiesretains the management
of such
SeparatePropertybelonging to that party and shall have the unrestricted right dispose
to
SeparateProperty,free and clear of any claim that may be made by the other by reason of their
Page 4 of 29
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them. The
marriageand with the same effect as if no marriage had been consummated between
in
partieshereby agree and elect that all property designated "SeparateProperty"
as this
agreement shall be exempt from claims, and is not to be classified, "community property",
as
or
"quasi-communityproperty", "marital property"under state law.
for such property now
SeparatePropertyshall include substitutions and exchanges
a.
in
existence,and any proceeds therefrom, and from any income derived from such Separate
from such property.
Property,and any property purchased from the proceedsor income
receives from a
b. SeparatePropertyshall also include giftsor inheritances one party
third party after the effective date of this agreement, or received priorto the date of this
a or irrevocable trust
agreement. SeparatePropertyshall also include any assets held in revocable
or limited liability
or in a corporation company.
c. In the event either party should desire to sell,encumber, convey or otherwise dispose
of or realize upon his or her SeparatePropertyor any part or parts thereof, the other party will,
of
upon request of a request, join in such deeds, bills of sale,mortgages, renunciations
survivorship or other rightscreated by law or otherwise, or other instruments, as the party
and as may
desiringto sell,encumber, convey or otherwise disposeor realize upon may request
be necessary and appropriateto consummate the sale,encumbrance, or conveyance provided,
however, that the other party shall not be obligatedunder
agreement to sign any agreement
this
or encumbrance.
making his or her SeparatePropertysubjectto any debt, mortgage
d.All costs of maintainingSeparateProperty will remain the responsibility
of the party
that owns such property, and the other party will not assume or become responsible
for the
payment of those expenses because of the marriage.
e. active or passive,and all income derived from Separate
Any and all increase in value,
Property shall remain the SeparatePropertyof the party that owns such property, even if the
increase in value or the income is a result of marital labor or infusions of marital funds.
5. Contributions and accumulations in retirement plans and accounts: In regards to
retirement plans and accounts, the parties covenant and agree that all accumulations in, and
contributions to, retirement plans and accounts whether before or during the marriage shall be
the SeparatePropertyof the party who owns the account or is the plan beneficiary.
6. Waiver of Rights and Claims To SeparateProperty.Except as otherwise provided
herein,each party waives and releases all rights,interests in and claims to the SeparateProperty
under common or statutory law of any jurisdiction
of the other party arising (presentor future).
This waiver does not apply to any righta party may posses to seek assistance from the federal
government as a surviving spouse such as under the Social SecurityAct.
7. Joint Property.This Agreement does not restrict,prohibitor condition any
or either of them alone, of the SeparatePropertyof either
conveyance or transfer by the parties,
the entireties or any other form of
party into tenancy in common, jointtenancy, tenancy by
Page 5 of 29
5L./91;
nD
concurrent and/or undivided estate or ownership between the parties, or the acquisition of any
property in any such form of ownership by the The
parties. incidents and attributes of ownership
and other rightsof the partieswith respect to any property so conveyed, transferred or acquired
shall be determined under State law and shall not be governed by or otherwise determined with
reference to this Agreement. This Agreement shall not limit the rightof either party to make
such transfers of property to the other as he or she may wish during their respectivelifetimes,or
by will,or to acquireproperty jointly
or in any other form of ownership.
A. Household items and Furniture: Household items and furniture purchased during the
marriagefor the use of both partiesin the marital domicile shall belongto the party that
purchased the item.
8. No Marital Assets/Comminglingof Separate Property. Due to the fact that all
of the marriage
property interests to property acquired both before and after the solemnization
have been defined by the terms and conditions contained in this Agreement, the parties
understand that there will not exist "marital assets" as contemplatedby the laws of the State of
Florida, now or in the future.
Except as may be provided herein to the contrary, the SeparateProperty of party may
a
be commingled with the Separate Property of the other party, which shall be known as
"Commingled Property."In the event the parties commingle any of their SeparateProperty,
income and derived therefrom, the presumption shall be that there was no intent
including profits
to create martial property unless both partiesexpress in writingtheir intent that it become marital
property.
If it is the nature of the Commingled Propertythat lends itself to division and distribution
in-kind and it is possibleto determine the contributions of each of the the
parties, Commingled
Propertyshall be divided and distributed to in-kind, each party receivingwhatever
the parties
such party contributed. Therefore, when commingling assets, the partiesshould make a special
effort to document their contributions. If either the Commingled Propertycannot be distributed
in-kind and/or it is not possibleto determine the contribution of each of the parties
then, unless
the partiesagree otherwise, the Commingled Propertyshall be wife's.
The pledgingof the SeparatePropertyof either party as securityor collateral,or the use
of non-martial income for any marital reason or purpose shall not change or transmute its
character as SeparateProperty.
The followingshall also constitute and remain the separate nonmarital assets of the
respectiveparties, and shall not be deemed marital, community, or quasi community property,
which may assume jurisdiction
under the laws of the State of Florida,or any other jurisdiction
over the marriage of the parties:
Property acquired by a party before the marriage or property acquiredafter
(a)
the marriage,by non-interspousal bequest,devise, or descent; the increase or appreciation
gift, in
value to such property which may occur during the marriage,whether due directlyor indirectly,
Page 6 of 29
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to market conditions, or due to the efforts or labor of either party during the marriage,
contributions to or expenditure of funds by either party, or from the contribution to or
expenditure thereon of marital funds or other forms of marital assets, or both; property acquired
in exchange for such property; the proceeds of sale of any such property, and property acquired
with such proceeds or with other SeparateProperty;
(b) Compensation for personalinjuryor damage to separate assets, except that
each party reserves his and her rightto assert derivative claims arisingout of personalinjuryto
the other party as a result of actions by third
parties;
(c) personalservices and intangible
Compensation for rights,and licenses and
privilegesthereof, including,without trademarks,
limitation, patents, copyrights, servicemarks,
royalties, or
and residuals; retirement or pensionbenefits, proceeds of insurance policies received
from any sources; dividends, interest,and all income from any and all sources;
(d) All trustee and beneficial interests in any trusts, includingthe assets of
such trusts and all income from trusts.
Undistributed pass throughincome earned in connection with a party's
(e)
property, and perks and benefits received by a party from party'
nonmarital a s
separate
nonmarital business, for example, undistributed pass through income attributed to a party's
nonmarital business, perks and benefits such as health insurance payments, automobile expenses,
cellphoneexpenses, and personalexpenses paid by a parties' business, etc; and
(f) All worldwide earnings and accumulations, including,but not limited to,
wages, salary,commissions, all income (taxable or nontaxable) received, interest,dividend
income, bonuses, directors' compensation, wages or salary received for services rendered or
attributable to separate nonmarital property, Subchapter S distributions,deferred compensation,
income from a covenant not to compete or consultingagreement, loans, receivables, trust income
or
(includingcapitalgains),rightto trust income and any other income, investment income, fees
other revenue derived from the reinvestment of income from whatever source, including that
resultingfrom the other spouse'spersonal services, skills,efforts and work, togetherwith
all
hereinafter referred to as the "income, earnings
property acquiredor income derived (collectively
and accumulations"), shall be the separate nonmarital property of the party to whom the earnings
and income are attributable. Each party understands that,except for this Agreement, the income,
earnings and accumulations from whatever source, including,but not limited to, personal
services, skills,efforts,and work throughoutthe marriagemay be marital assets, and that by this
as the
Agreement, the income, earnings and accumulations during the marriage are characterized
separate nonmarital assets of the person to whom the income, earningsand
accumulations are
attributable.
(g) Any lotterywinnings of either party.
9. Gifts Made Between the Parties During Marriage. Each party reserves the right,
but is not obligated,to make specificgifts to the other party of specific property duringthe
marriage. The respectiveownership interests created by those giftswill be determined by
reference to the instruments of conveyance, such as deeds or bills of sale, for those gifts.
Gifts
from one party to the other of items of tangiblepersonalproperty for personaluse that are not
customarily conveyed by written instruments of conveyance, such as clothing and jewelry,will,
nevertheless, be valid and those items will be owned by the party to whom they were given.
Page 7 of 29
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Those giftswill not constitute an amendment to or other change in this Agreement.
10. Retirement Benefits and Plans. Each party waives and releases any and all rights,
claims and demands that he or she now has or may have with respect to any retirement plan in
includingbut not limited to a pension plan,profitsharing
which the other party is a participant,
plan,defined benefit plan,defined contribution plan,militaryretirement,401(k) plan,annuity,
stock bonus plan,federal employee'sretirement plan,individual retirement account, individual
retirement arrangement, IRA, or qualifiedor non-qualified deferred compensation agreement.
Each party agrees that each party will have the rightto name any other individual,trust, or entity
as beneficiaryof any death benefits under any such plan,to receive benefits from any such plan
any manner desired, and to borrow from those plans without the consent of the other party,
in If
or
requestedat any time, each party to this Agreement will give written consent to distribution
loans from any such plan as requested by the other party and will waive in writingany and all
rightsin the plan,includingbut not limited to any and all rightsto receive a qualifiedpre-
retirement survivor annuity,jointand survivor annuity,death benefit, and any and
all other rightsunder any such retirement The written consent and waiver will comply with
plan.
29 U.S.C.A. § 1055(c),26 U.S.C.A. § 41 7(a),and any other applicablelaws. Each party intends
to give the other spouse completediscretion in making any election under the Retirement Equity
Act of 1984, under any qualifiedemployee benefit plan,both as to the payment of benefits and
the person or persons who will enjoy those benefits. Each of the partiesacknowledgesthat the
other has the rightto limit his or her consent to a specificbeneficiaryand a specificform of
benefit, and each of the partiesvoluntarily both of those rights.
relinquishes
Each of the partiesnow irrevocablywaives and releases any rightshe or she may have in
any qualifiedemployee benefit plan of the other and agrees to consent, and now consents,
to an
election by the other party of a form of benefit other than a jointand survivor annuity and to any
or
designationby the other party of the beneficiary beneficiaries. Each of the to
parties this
Agreement also consents to any election by the other to waive a pre-retirement spousalannuity
that would be payable in the event the other party died priorto retirement;and if the other pa
Preview
Filing# 195696524 E-Filed 04/08/2024 01:52:47 PM IN THE CIRCUITCOURT OF THE 17 7TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA IN RE:THE MARRIAGE OF- CASE NO.: LOUIS MARTIN FISCHLER, FAMILY DIVISION Petitioner/Husband, and MARIA DUQUE, Respondent/Wife. i MOTION FOR BIFURCATION AND DETERMINATION OF THE VALIDITY OF THE POSTNUPTIAL AGREEMENT AND FOR REATED RELIEF COMES NOW, the Petitioner/Husband, LOUIS MARTIN FISCHLER, on his own verification and by and through his undersigned counsel,and files this,his Motion for Bifurcation Agreement and for Related Relief,and in and Determination of the Validityof the Postnuptial support thereof,states as follows: 1. The Husband incorporates his Petition as if fullyset forth herein to avoid unnecessary repetition. 2. The partieswere married to each other on February 28, 2010 in Boca Raton, Florida, without a prenuptial agreement. 3 Both partieshad been previouslymarried. The Wife had one child from her prior marriage.The Husband had two children from his priormarriage. 4. On March 20,2023, executed a Postnuptial the parties Agreement, attached hereto as Exhibit "A." The Husband seeks to invalidate this Agreement for the reasons set forth hereinbelow, but broadlyfor fraud and overreaching. 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/08/2024 01:52:45 PM.**** 5. Significantly, were previouslymarried and came both parties to the marriage with real property, to wit: a. The Husband came to the marriage with the property known as 7341 Amberly Lane, #404, Delray Beach, Florida, which he received in his previousdivorce. In 2013, the Wife took a HELOC on her premaritalproperty and used the funds to pay off this property, and the Husband added her to the deed. The Husband commenced paying half of the monthly loan payments by transfer to the Wife in 2015. This property is currently valued at $325,000.00. b. The Wife came to the marriagewith the property known as 802 CongressionalWay, Deerfield Beach, Florida,which she received from a priordivorce in June of 2000. This valued at $315,000.00 and is subjectto a mortgage ofapproximately property is currently $17,000.00,leavingequityof approximately$298,000.00. 6. During the intact marriage,on November 2, 2021, the Husband purchased a 11061 Dawnview Lane, Orlando for $425,000.00. It is presentlyvalued at $512,300.00 and subjectto a mortgage of approximately$365,000.00, leavingequityof approximately$147,300.00. 7. The Husband also held the followingfinancial accounts, some of which contained marital funds,to partially wit: a. Robinhood accounts containinga combined $ 20,000.00 b. 401K containingapproximately $ 45,000.00 C Mass Mutual account with approximately $ 25,000.00 d. National Western Annuity $165,000.00 e. Oxford Insurance Annuity $175,000.00 8 The Wife held the followingfinancial accounts, some of which contained partially marital funds,to wit: a. Fidelity $ 87,000.00 b. Annuity $ 39,000.00 2 C IRA $101,000.00 d. Pension in pay status $627.75/month 9- The Husband requests that the Court bifurcate this matter for determination of the Agreement onthebasis offraud and overreaching, ofthe Postnuptial validity andthe followingevents form the basis ofthat request. 10. The Wife is apracticingRegisteredNurse forover thirty(30)years, working at Delray Medical Center, and who also worked at Boca Raton Regional Hospital(now owned by Baptist Health South Florida)and Florida Medical Center. This gave her much greater than average knowledge ofthe Husband's cognitiveand mental condition as further set forth herein. 11. In the first quarter of 2022, the Husband was diagnosedwith MCI (Mild Cognitive Impairment) and MDD (Major DepressiveDisorder).This was at the Wife's suggestion,who asked that he undergo numerous neurological studies and an MRI given his familyhistoryof mental illness towards the end of 2021. 12. In late 2022 and early2023, the Husband was subjectto a series of abusive events at the hands of his employer's CEO and CFO, duringwhich he was yelledat, asked if he had memory issues,talked about behind his back by a group of employees in reference to his having "dementia," and asked to work fewer days,all ofwhich affected him emotionallyand all ofwhich were known to the Wife. 13. On February 7, 2023, the Husband was diagnosed with Early Onset Dementia. Subsequently,also in February of 2023, the parties discussed estate planning. 14 The Wife located attorney Edward Chandler through her legalinsurance plan from Delray Medical Center. Upon information and belief,he should not have representedeither party, as matters in which there is a conflict of interest between the insured and their spouse are excluded from the as policyprovisions to a secondaryinsured such as the Husband herein. Furthermore, any legal 3 work regardingproperties for which a partic*antis an investor or landlord with regardto the property issue is also excluded under the plan.The Wife had Mr. Chandler place all of the aforementioned into corporationsin a manner that was intended to favor the Wife. The Husband was not properties advised that the deeds were againsthis interests. The Wife executed a waiver of conflict as to Chandler preparingestate planningdocuments for both parties. 15. Upon information and belief,Mr. Chandler also prepared other estate planning documents which only stated what would happen if the Husband died first and not the other way around. The Husband felt that this was wrong and asked how this could be fixed. It was suggestedto him that a postnuptial agreement could fix this issue. 16. On March 8, 2023, both partiescontracted COVID-19, and the Husband was ultimatelydiagnosed as a Covid Long Hauler.1 17. Also on March 8,2023, the Wife executed a financial affidavit listing assets and liabilities (but with no back-up documentation) and PostnuptialAgreement prepared at some unknown pointpriorto that by Mr. Chandler, an Agreement that heavilyfavored the Wife, not only from a financial but by giving her the Husband's premaritalproperty and her own standpoint, property. Prior to that,Mr. Chandler told the Wife that she needed her own attorney to look premarital at the Dvora Weinreb, agreement, and the Wife had retained a separate attorney for herself, who does not hold herself out as a divorce attorney. Ms. Weinreb also executed the Agreement on March 8, Long COVID a condition wherein the symptoms of COVID-19 persistfor weeks, 1 is months, or even years. The symptoms include chronic pain,brain fog,shortness of breath,chest pain,and intense,debilitating See Kathy Katella,What Happens When You Still Have fatigue. Long COVID Symptoms?, Yale Medicine, Family Health, October 27,2023, https://www.yalemedicine. symptoms#:-:text==Long%20COVID%2C%20the%20condition%20where,intense%20fatigue%2 C%20can%20be%20debilitating. 4 2023. The Agreement states that the Wife is waiving the conflict of interest caused by Mr. Chandler's Although,that separate waiver priorrepresentation. is not attached to the document. 18. On March 20, 2023, the Husband executed an affidavits listing assets and liabilities, and the Postnuptial Agreement that gave the Wife the Delray home, the Deerfield home, and all of her financial assets, leavingthe Husband with the Orlando home, which has a largemortgage and his financial accounts, a net benefit o f $231,000 to the Wife, leavingthe Husband with one home which is subjectto a mortgage many times the size ofthe mortgages for the other two properties combined. It should be noted that the Husband still had Covid-19. Mr. Chandler strangelydid not execute the Agreement Postnuptial until March 24,2023, did not notarize the Husband's affidavit, and did not notarize the affidavit. self-proof 19. The Husband has no recollection of anyone explainingto him that he was givingaway property, that he was signinga materially to his premarital rights unfair agreement, or any legaladvice for that matter. However, he knows that if he understood that he was waiving rightsin his premarital property, he would never have signedthe Postnuptial Agreement, and he believes that he only would have signedthe document as a result of his mental condition. 20. On March 23,2023, the Husband reached out to his primaryphysicianabout increased anxietyand depressionand requestedmedication, and on that same day,given the aforementioned abusive work environment and increased depression, he walked out of his office for good. A few the Husband appliedwith AFLAC weeks after resigning, to claim and was provided use his disability the maximum amount available under the policy. 21. On April3, 2023, the Husband was voluntarily committed to Delray Medical Center due to suicidal ideation and was subsequently transferred to another facilityfor professional assistance. 5 22. In or about January of 2024, the Wife requesteda divorce,and when the Husband stated that he justwanted his premaritalproperty in the divorce,the Wife informed him that it was not his anymore, and she was not returningit. 23. For all of the above reasons, the Husband asks that the Court to bifurcate the matter and hold a hearingon the validity ofthe Postnuptial Agreement priorto any trial ofthis cause. 24. The PostnuptialAgreement violates Florida's laws and publicpolicies regardingthe ofits protections citizens in but not limited to the following: mult*le ways, including, a. The Husband did not have fullyindependentlegalrepresentation nor the capacityto understand the implicationsof the conflicts of interest involved in both the estate planningwork and the Postnuptial Agreement. b. The financial disclosures and the Agreement are executed the same day,evidencinga lack of sufficient time for review and reflection. c. The Husband did not have either full and fair financial disclosures by the Wife or adequate knowledge of her finances,as he later learned that she omitted a retirement account containingapproximately$100,000.00. The lack of actual disclosures should serve to invalidate the agreement given Florida's strong public policy for either a general knowledge of the other parties'finances at the time of the agreement or disclosure and the failure of the agreement to make reasonable provisionfor the Husband, who was known to have earlyonset dementia and a likelyinability to pay offthe very substantial See Casto v. Del Fecchio Casto, 508 So.2d 330 at 333 (citing v. Del Fecchio, 143 So.2d 17, 20 (Fla.1962)). d. The Agreement fails for lack of consideration. The Husband receives nothing for givingup his rightsin these assets. 6 e. The Agreement fails to made "fair" or "reasonable" provisionfor the Petitioner by forcinghim to agree that if he needs to the Wife or institutionalized, hospitalized may recover anything she expends from the Husband's estate despite giving the Wife more property and cash and despitethe substantially fact that the Husband was known to be diagnosed with earlyonset dementia. Belcher v. Belcher, 271 So.2d 7 (Fla.1972). The ofthe Petitioner is requestingthe bifurcation ofthis matter to determine the validity purportedPostnuptial Agreement. 25. It is abundantly clear that to make this less expensive and to promote litigation purportedPostnuptialAgreement should be severed and bifurcated. judicialeconomy, the parties' Once severed and bifurcated,the Court should ultimatelydetermine that the Agreement is unenforceable. 26. The relief sought here is not a classic "bifurcation" because the Petitioner is not requestingan expedited Final Judgment without reservation as discouraged by Claughton v. Claughton, 393 So.2d 1061 (Fla.1980). Rather, he is requestinga bifurcation like that sought in Caldwell v. Caldwell, 915 So.2d 728, (Fla.5thDCA 2005),seekingsolelyto determine the validity of the prenuptialagreement first. See Johnson v. Johnson, 715 So.2d 1209 (Fla.3d DCA 1999) (Trialcourt, in bifurcatingand holding a separate trial solelyon the validityof the prenuptial agreement, committed no reversible error in findingthe prenuptial agreement to be valid or in the decisions it made in the second phase ofthe trial), review denied, 735 So.2d 1285 (Fla 1999);Khan v. Khan, 79 So.3d 99,104 (Fla.4? th DCA 2012) (recognizing,in dicta,that litigation the preliminary questionof enforceability of the prenuptialagreement priorto conductingsubstantial discovery regarding normal issues in a dissolution of marriage proceedings can significantly and litigation reduce the amount of fees).This is also consistent with Florida Family Law rule 12.270. 7 27. The Petitioner has incurred reasonable attorney'sfees and costs in the preparation of this Motion and will incur additional fees in the prosecution of same. Those fees should appropriatelybe taxed against the Respondent consistent with this Court's inherent authority should the Respondent unreasonablyresist. WHEREFORE, the Petitioner/Husband, LOUIS MARTIN FISCHLER, prays for an Order grantingall relief sought herein and all other relief as is deemed justand reasonable under the circumstances. DATED: April 8,2024. Respectfully submitted: CABANAS LAW, PA 18503 Pines Blvd., Suite 301 Pembroke Pines,FL 33029 (954) 447-2580 / Fax (954) 447-2959 E-mail: Eservice@cabanaslawfirm.com Gbennasar@cabanaslawiirm.com Lgrossman@cabanaslawfhrm. com By: /S/Laura J. Grossman, Esq. (115207) for Sergio Cabanas, Esquire Florida Bar 898028 Attorneyfor Husband 8 POSTNUPTIAL AGREEMENT EXHIBIT A Page 1 of 29 MD '-o.f-2 TABLE OF CONTENTS 1. Consideration and Effective Date of Agreement 2. SeparatePropertyDefined 3. Earnings During Marriage 4. Separateproperty 5. Contributions and accumulations in retirement plans and accounts 6. Waiver of Rights and Claims To SeparateProperty 7. Joint Property 8. No Marital Assets 9. Gifts Made Between the Parties During Marriage 10. Retirement Benefits 11. Homestead 12. Release 13. Alimony 14. PropertyDivision On Dissolution Of Marriage 15. Waiver of Rights Upon Death 16. Dispositionof Property at the Death of a Party 17. IndependentLegal Counsel 18. Cohabitation 19. Debts 20. Children by Previous Marriages or other 21. Child Support 22. Financial Disclosure 23. Tax Returns 24. Integration 25. Right To Contest 26. Binding on Successors 27. Public Policy 28. Severability 29. Contractual Agreement 30. Drafting 31. Modification and Waiver 32. Change in Circumstances 33. Waiver of Defenses to Enforcement of Agreement 34. State Law 35. Joint Acknowledgments 36. Voluntary Execution of wife 37. Voluntary Execution of husband 38. Definition of Terms Applicableto this Agreement Page 2 of 29 MD FKJF POSTNUPTIAL AGREEMENT THIS AGREEMENT is made and entered into thisQ- day of LGr011 UW ,2023, by and between LOUIS MARTIN FISCHLER, a resident of Broward County, Florida, hereinafter Husband, and MARIA DUQUE, a resident of Broward County, Florida,hereinafter Wife, who shall known herein as "the parties." be collectively WHEREAS the partieswere married on February 28, 2010 in Delray Beach, Florida and are presentlymarried. The partiesdesire to fix and determine various financial relationships that applyduringtheir marriageand upon the termination of their marriage whether by death, divorce or otherwise; WHEREAS, information about each of the parties'assets, liabilitiesand approximate current income has been exchanged priorto enteringinto this Agreement and made a part hereof; WHEREAS, each party has had the opportunityto fullydiscuss the financial circumstances of the other party; WHEREAS, each party enters into this Agreement freelyand under no duress or undue influence upon his or her decision to sign. The premises being considered,upon consideration of the mutual promises hereinafter set forth of which are and for other good and valuable considerations,the receiptand sufficiency hereby acknowledged,the partiesagree as follows: Consideration and Effective Date of Agreement. The partiesacknowledge that the 1. provisionsof this Agreement are the consideration for the Agreement and are sufficient consideration to support it. Further, the effective date of this Agreement is the date of execution. Separate Property Defined. As used in this Agreement, the term "SeparateProperty" 2. means rightsand interests in property of any kind, includingcontingentinterests,owned by all each party on the effective date of this Agreement.All of the tangibleand intangible real and personalproperty, includingbut not limited to any interest in any business enterprise and retirement plan that each party now owns or subsequentlyacquiresin his or her individual name or trust name, and any income received on that property, and any increases in value or quantity of that property, will remain the sole and separate property of that party throughoutthe marriage regardlessof the parties' contributions,financial or otherwise, and equal or unequal.The term "SeparateProperty",as used in this agreement, is further defined below. 3. Earnings During Marriage: Passive Income. Passive income derived from property of any type shall have the same character for purposes of this Agreement as the property from which it is derived. Thus, passive income from SeparatePropertyearned or accruingafter the effective date of this Agreement shall be the SeparateProperty of the owner of that asset. Likewise, passive income from marital Page 3 of 29 MD -#S or community property shall have that character once earned or accrued. The term "passiveincome" means dividends, capital a. gains,interest,rents, royalties, and disruptions other income accrued from property of a party and obtained after the effective date of this agreement. in The term "passiveincome" also includes accrued but unrecognizedappreciation b. the assets classified as Separate value of capital Property. c. In the case of ownership of interests in all dividends therefrom corporations, are to be considered passive. case of ownership of interests in trusts and partnerships d. In the which do not operate a all distributions and income business enterprise, allocations therefrom to a party are to be considered passive. limited liability companies e. ownership of interests in trusts, partnerships, In the case of (LLCs), corporations, and like business entities which operate a business enterprise, all distributions and income allocations therefrom to a party are to be considered passiveunless a in the business. participates party materially Where a party materially in a business participates operated by a partnership, trust, LLC, corporation, or like business entity,all income and distributions from said entityare to be treated as earned income. Income not fallingwithin the definition of "passiveincome" is to be considered earned f. income and treated as set forth in the next section entitled,"EarningsDuring Marriage-Earned Income". g.The term "materiallyparticipates" has the same meaning as given under the tax laws of the United States (Title26, USC) for determining when a partner materially participatesin a partnership. Earned Income. a. income of the partiesduring the marriage shall be considered the All of the earned SeparatePropertyof either party duringthe marriage. b.The term "earned income" means any income obtained by a party after the effective date of this Agreement that does not meet the definition of passive income as set forth in the are not limited to, salaryand bonus from previoussection. Types of earned income include,but as an independentcontractor, employment, earningsderived from the performanceof services real estate income, rents, and income derived from a business run as a sole proprietorship. and control of their 4. SeparateProperty. Each of the partiesretains the management of such SeparatePropertybelonging to that party and shall have the unrestricted right dispose to SeparateProperty,free and clear of any claim that may be made by the other by reason of their Page 4 of 29 MD -CXJ them. The marriageand with the same effect as if no marriage had been consummated between in partieshereby agree and elect that all property designated "SeparateProperty" as this agreement shall be exempt from claims, and is not to be classified, "community property", as or "quasi-communityproperty", "marital property"under state law. for such property now SeparatePropertyshall include substitutions and exchanges a. in existence,and any proceeds therefrom, and from any income derived from such Separate from such property. Property,and any property purchased from the proceedsor income receives from a b. SeparatePropertyshall also include giftsor inheritances one party third party after the effective date of this agreement, or received priorto the date of this a or irrevocable trust agreement. SeparatePropertyshall also include any assets held in revocable or limited liability or in a corporation company. c. In the event either party should desire to sell,encumber, convey or otherwise dispose of or realize upon his or her SeparatePropertyor any part or parts thereof, the other party will, of upon request of a request, join in such deeds, bills of sale,mortgages, renunciations survivorship or other rightscreated by law or otherwise, or other instruments, as the party and as may desiringto sell,encumber, convey or otherwise disposeor realize upon may request be necessary and appropriateto consummate the sale,encumbrance, or conveyance provided, however, that the other party shall not be obligatedunder agreement to sign any agreement this or encumbrance. making his or her SeparatePropertysubjectto any debt, mortgage d.All costs of maintainingSeparateProperty will remain the responsibility of the party that owns such property, and the other party will not assume or become responsible for the payment of those expenses because of the marriage. e. active or passive,and all income derived from Separate Any and all increase in value, Property shall remain the SeparatePropertyof the party that owns such property, even if the increase in value or the income is a result of marital labor or infusions of marital funds. 5. Contributions and accumulations in retirement plans and accounts: In regards to retirement plans and accounts, the parties covenant and agree that all accumulations in, and contributions to, retirement plans and accounts whether before or during the marriage shall be the SeparatePropertyof the party who owns the account or is the plan beneficiary. 6. Waiver of Rights and Claims To SeparateProperty.Except as otherwise provided herein,each party waives and releases all rights,interests in and claims to the SeparateProperty under common or statutory law of any jurisdiction of the other party arising (presentor future). This waiver does not apply to any righta party may posses to seek assistance from the federal government as a surviving spouse such as under the Social SecurityAct. 7. Joint Property.This Agreement does not restrict,prohibitor condition any or either of them alone, of the SeparatePropertyof either conveyance or transfer by the parties, the entireties or any other form of party into tenancy in common, jointtenancy, tenancy by Page 5 of 29 5L./91; nD concurrent and/or undivided estate or ownership between the parties, or the acquisition of any property in any such form of ownership by the The parties. incidents and attributes of ownership and other rightsof the partieswith respect to any property so conveyed, transferred or acquired shall be determined under State law and shall not be governed by or otherwise determined with reference to this Agreement. This Agreement shall not limit the rightof either party to make such transfers of property to the other as he or she may wish during their respectivelifetimes,or by will,or to acquireproperty jointly or in any other form of ownership. A. Household items and Furniture: Household items and furniture purchased during the marriagefor the use of both partiesin the marital domicile shall belongto the party that purchased the item. 8. No Marital Assets/Comminglingof Separate Property. Due to the fact that all of the marriage property interests to property acquired both before and after the solemnization have been defined by the terms and conditions contained in this Agreement, the parties understand that there will not exist "marital assets" as contemplatedby the laws of the State of Florida, now or in the future. Except as may be provided herein to the contrary, the SeparateProperty of party may a be commingled with the Separate Property of the other party, which shall be known as "Commingled Property."In the event the parties commingle any of their SeparateProperty, income and derived therefrom, the presumption shall be that there was no intent including profits to create martial property unless both partiesexpress in writingtheir intent that it become marital property. If it is the nature of the Commingled Propertythat lends itself to division and distribution in-kind and it is possibleto determine the contributions of each of the the parties, Commingled Propertyshall be divided and distributed to in-kind, each party receivingwhatever the parties such party contributed. Therefore, when commingling assets, the partiesshould make a special effort to document their contributions. If either the Commingled Propertycannot be distributed in-kind and/or it is not possibleto determine the contribution of each of the parties then, unless the partiesagree otherwise, the Commingled Propertyshall be wife's. The pledgingof the SeparatePropertyof either party as securityor collateral,or the use of non-martial income for any marital reason or purpose shall not change or transmute its character as SeparateProperty. The followingshall also constitute and remain the separate nonmarital assets of the respectiveparties, and shall not be deemed marital, community, or quasi community property, which may assume jurisdiction under the laws of the State of Florida,or any other jurisdiction over the marriage of the parties: Property acquired by a party before the marriage or property acquiredafter (a) the marriage,by non-interspousal bequest,devise, or descent; the increase or appreciation gift, in value to such property which may occur during the marriage,whether due directlyor indirectly, Page 6 of 29 MD to market conditions, or due to the efforts or labor of either party during the marriage, contributions to or expenditure of funds by either party, or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both; property acquired in exchange for such property; the proceeds of sale of any such property, and property acquired with such proceeds or with other SeparateProperty; (b) Compensation for personalinjuryor damage to separate assets, except that each party reserves his and her rightto assert derivative claims arisingout of personalinjuryto the other party as a result of actions by third parties; (c) personalservices and intangible Compensation for rights,and licenses and privilegesthereof, including,without trademarks, limitation, patents, copyrights, servicemarks, royalties, or and residuals; retirement or pensionbenefits, proceeds of insurance policies received from any sources; dividends, interest,and all income from any and all sources; (d) All trustee and beneficial interests in any trusts, includingthe assets of such trusts and all income from trusts. Undistributed pass throughincome earned in connection with a party's (e) property, and perks and benefits received by a party from party' nonmarital a s separate nonmarital business, for example, undistributed pass through income attributed to a party's nonmarital business, perks and benefits such as health insurance payments, automobile expenses, cellphoneexpenses, and personalexpenses paid by a parties' business, etc; and (f) All worldwide earnings and accumulations, including,but not limited to, wages, salary,commissions, all income (taxable or nontaxable) received, interest,dividend income, bonuses, directors' compensation, wages or salary received for services rendered or attributable to separate nonmarital property, Subchapter S distributions,deferred compensation, income from a covenant not to compete or consultingagreement, loans, receivables, trust income or (includingcapitalgains),rightto trust income and any other income, investment income, fees other revenue derived from the reinvestment of income from whatever source, including that resultingfrom the other spouse'spersonal services, skills,efforts and work, togetherwith all hereinafter referred to as the "income, earnings property acquiredor income derived (collectively and accumulations"), shall be the separate nonmarital property of the party to whom the earnings and income are attributable. Each party understands that,except for this Agreement, the income, earnings and accumulations from whatever source, including,but not limited to, personal services, skills,efforts,and work throughoutthe marriagemay be marital assets, and that by this as the Agreement, the income, earnings and accumulations during the marriage are characterized separate nonmarital assets of the person to whom the income, earningsand accumulations are attributable. (g) Any lotterywinnings of either party. 9. Gifts Made Between the Parties During Marriage. Each party reserves the right, but is not obligated,to make specificgifts to the other party of specific property duringthe marriage. The respectiveownership interests created by those giftswill be determined by reference to the instruments of conveyance, such as deeds or bills of sale, for those gifts. Gifts from one party to the other of items of tangiblepersonalproperty for personaluse that are not customarily conveyed by written instruments of conveyance, such as clothing and jewelry,will, nevertheless, be valid and those items will be owned by the party to whom they were given. Page 7 of 29 MD rl--t Those giftswill not constitute an amendment to or other change in this Agreement. 10. Retirement Benefits and Plans. Each party waives and releases any and all rights, claims and demands that he or she now has or may have with respect to any retirement plan in includingbut not limited to a pension plan,profitsharing which the other party is a participant, plan,defined benefit plan,defined contribution plan,militaryretirement,401(k) plan,annuity, stock bonus plan,federal employee'sretirement plan,individual retirement account, individual retirement arrangement, IRA, or qualifiedor non-qualified deferred compensation agreement. Each party agrees that each party will have the rightto name any other individual,trust, or entity as beneficiaryof any death benefits under any such plan,to receive benefits from any such plan any manner desired, and to borrow from those plans without the consent of the other party, in If or requestedat any time, each party to this Agreement will give written consent to distribution loans from any such plan as requested by the other party and will waive in writingany and all rightsin the plan,includingbut not limited to any and all rightsto receive a qualifiedpre- retirement survivor annuity,jointand survivor annuity,death benefit, and any and all other rightsunder any such retirement The written consent and waiver will comply with plan. 29 U.S.C.A. § 1055(c),26 U.S.C.A. § 41 7(a),and any other applicablelaws. Each party intends to give the other spouse completediscretion in making any election under the Retirement Equity Act of 1984, under any qualifiedemployee benefit plan,both as to the payment of benefits and the person or persons who will enjoy those benefits. Each of the partiesacknowledgesthat the other has the rightto limit his or her consent to a specificbeneficiaryand a specificform of benefit, and each of the partiesvoluntarily both of those rights. relinquishes Each of the partiesnow irrevocablywaives and releases any rightshe or she may have in any qualifiedemployee benefit plan of the other and agrees to consent, and now consents, to an election by the other party of a form of benefit other than a jointand survivor annuity and to any or designationby the other party of the beneficiary beneficiaries. Each of the to parties this Agreement also consents to any election by the other to waive a pre-retirement spousalannuity that would be payable in the event the other party died priorto retirement;and if the other pa