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Marital Agreements

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Charles Rubin

on 8 May 2016

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Transcript of Marital Agreements

Typical Purposes
Principal Tax Issues
Property Transfer Issues
Marital Agreements
Lineal descendents (especially 2nd marriages)
In General
Income taxable to recipient
spouse rights - marriage, divorce, after death
Delineation of other aspects of the marriage
Property Transfer Issues
Pension Issues
Deductible to payor
Agreement label does not bind the IRS
Alimony Requirements:
1. In Cash
2. Received by SPOUSE or
divorce or separation agreement
3rd Party Recipient Okay??
Yes, if:
a. provided under decree or separation instrument, or
b. under written request, consent or
ratification of the payee spouse
Premium Payments to Insurance Company Okay??
Yes, if:
Payee spouse is the "owner"
Term or whole life on payor's life
Under terms of divorce or separation agreement
Thus can get deductible payments in setting up life insurance arrangements that arise or are funded after divorce
3. No provision that not in G.I. or not deductible
4. Cannot live in same household if legally separated
& separate parts of the same dwelling won't fly
5. Must terminate at death of payee spouse
Florida law default setting
Careful with lump sum alimony
Careful with post-death payment obligations - substitute payments risk
6. No joint income tax return filing
Alimony Frontloading
Watch for:
Payments decline over 1st 3 years
Contingencies in payment amounts
What if alimony is really only a disguised property settlement?
No Problem!
The Deduction Side of Things
Section 215(a) deductiblity tracks Section 71 taxability requirements
Deductible in computing AGI (Sec. 62(a)(10))
Estate, trust, or other payor than payor spouse cannot deduct
Child Support
Cannot Qualify as Alimony
No Deduction
No GI Inclusion
Short Form Definition of Child Support
payment to spouse or former spouse designated for the support of children of the
Key Points Regarding "Support" Payments
Child need not be a minor.
Must be a child of the payor spouse.
No legal obligation to support the child is needed.
A designation of a percentage of total payment qualifies the amount as "fixed."
Amounts specified as being reduced upon contingencies affecting a child (e.g., age, death, marriage) can meet the designation requirement.
Practice Tips
Be specific and designate
If alimony desired, don't let the contingency rule covert it to child support
Freedom of choice - but contrasting interests between payor and payee spouse
Payor spouse can trade off deduction/inclusion for lower payments, if deduction not of great value
Inter Vivos Transfers - Taxable Gift?
Estate Tax Deduction for Testamentary Transfers
Alimony and Other Trusts
Obligation to Establish Trust for Surviving Spouse
Marital Home Issues
Capital Gain Recognition
Property Transfer Issues
Capital Gain Recognition
Starting Point
Davis gain
General income tax rule of deemed sale of property transferred in exchange for consideration or in discharge of an obligation - gain recognition potential. United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335 (1962).
§1041 To the Rescue
Transfer during marriage not incident to divorce - deemed gift. §1041(a)(1).
Transfer to a former spouse if "incident to divorce." §1041(a)(2).
§1041 Particulars
Gift for INCOME tax purposes. §1041(b)(1).
No income on receipt. §102.
No consideration requirement.
Carryover basis.
But no reduction if value less than basis!
Basis of transferred subject to passive losses should increase
pro tanto
Holding period tacking.
No ITC recapture if continued qualified use.
No depreciation recapture.
No acceleration of installment sale gain.
Transferee takes over transferor tax consequences
Transfer of life insurance policy not a transfer for value.
What is "incident to divorce" for transfers to former spouses?
Transfer within one year of divorce, or
Transfer related to cessation of marriage
Safe harbor:
Transfer under a divorce or separation instrument, and
Within SIX YEARS of termination of marriage.
Alternatively: a “showing that the transfer was
made to effect the division of property
owned by the former spouses at the time of the cessation of the marriage.”
: Try to avoid transfers occurring more than 6 years after cessation of the marriage to avoid having to meet the special exception. Consider a provision in the marital agreement requiring payment within the 6 year period.
§1041 Will Not Apply to:
Nonresident alien recipient.
Property transferred has liabilities in excess of basis,
but only if the transfer is in trust
But not to a grantor trust. PLR 9230021.
A transfer of installment obligations to a trust. §453B(g).
Some assignments of earned income.
Transfer of services.
Transfers before marriage.
Delivery of adjusted basis and holding period information to transferee.
Property Transfer Issues
Inter Vivos Transfers - Taxable Gift?
Why an Issue?
All transfers are a potential taxable gift. §1041 only impacts income tax character.
Gifts are defined objectively - donative intent irrelevant.
Gifts occur when “property is transferred for less than an adequate and full consideration in money or money’s worth.”
Consideration not reducible to a value in money or money's worth is disregarded for this purpose.
Property transferred in exchange for a relinquishment or promised relinquishment of dower or curtesy, or of other marital rights in the spouse’s property or estate, is not consideration in money or money’s worth. Reg. § 25.2512-8.
Given the unlimited marital deduction, more of a problem for transfers to former spouses than to current spouses while married.
Relief Mechanisms
Marital deduction for qualified transfers before divorce.
Pursuant to written agreement; and
Divorce w/i 2 years after agreement [i.e., only applies if a divorce]; and
Transfer is in settlement of marital or property rights or to provide support of MINOR children.
Can apply to transfers to trusts.
Similar, but not identical to §1041(a)
TIP: to get coverage, include provisions in marital settlement agreement (or rely on separate "court decree provision"
If §2516 does not apply, "court decree" may allow escape.
Transfers incident to divorce or separation have adequate consideration in money or money's worth if made to satisfy RIGHTS OF SUPPORT.
PRACTICE TIP: But make sure agreement is not effective until marriage, since gift occurs when agreement to transfer occurs, not the date of transfer. Similarly, no transfers prior to marriage should be made.
Exposure if amount transferred exceeds value of rights of recipient spouse.
Exposure of decree entered into more than 2 years after agreement (unless incorporated as part of the decree)
Property Transfer Issues
Estate Tax Deduction for Testamentary Transfers
If Married
§2056 marital deduction, if meet requirements
PRACTICE TIP: Non-tax practitioners will often create trusts for surviving spouse that will terminate upon remarriage - not a QTIP
If Not Married
Deductibility for post-death alimony, child support, or property settlement payments for estate tax purposes under Code §2053(a)(3).
Must be an enforceable claim
Claims founded on a promise or agreement are deductible only if “contracted bona fide and for an adequate and full consideration in money or money’s worth.” IRC §2053(c)(1)(A).
An obligation founded on a court decree is not considered to be founded on a promise or agreement and, therefore, may not be deductible to the estate.
A transfer that meets the requirements of IRC §2516(1) will be deemed to be made for adequate and full consideration. IRC §2043(b)(2).
General Rule: A trust funded to pay alimony obligations is generally a grantor trust to the extent income from the trust is distributed to discharge the payor spouse's support obligations. Code §677(b).
Special Rule - §682
Not a grantor trust as to income distributions for support of the payee spouse if divorced or legally separated
Distribution taxable to payee to extent of DNI, and not taxable to payor spouse
No deduction to payor spouse for payment
Remaining undistributed income taxed under regular trust principles, including potential application of grantor trust rules
It is likely that Code §§ 71 and 215(a) do not apply, so distributions of principal are likely not taxable to the payee spouse nor deductible by the payor spouse. See H.R. Rep. No. 98-432 (1984).
Code §682 does not apply to income designated for the support of minor children of the payor spouse.
Property Transfer Issues
Income Taxation of Alimony and other Support Trusts
Property Transfer Issues
Obligation to Establish Trust for Surviving Spouse
RISK: If under applicable state law, the surviving spouse is treated as having furnished the consideration of property transferred to the trust, then the trust may be treated as self-settled, and, therefore, subject to claims of the survivor's creditors.
Property Transfer Issues
Marital Home Issues
Carryover Basis under §1041
Fla. documentary stamp taxes if encumbered.
Florida's "Save our Homes" ad valorem tax cap on values may be split between spouses in certain situations. This may be negotiated in the marital agreement.
One Spouse Occupies and Other Pays Expenses
Principal payments on mortgage can be treated as taxable/deductible alimony or separate maintenance.
Interest payments on a mortgage may not be deductible by the non-resident spouse for failure to meet the definition of a qualified residence under Code §163(h)(4)(A)(i). But such a payment may be taxable/deductible as alimony if so structured.
Property taxes are generally deductible only by the person on whom they were imposed and only if that person actually pays the taxes. Reg. § 1.164-1(a). [See outline for specific fact patterns]
Tax Return Filings
Joint Return Considerations
Parties will typically begin filing joint tax returns after they get married.
Some reasons to
not file jointly:
IRS able to seize any refund.
Both spouses become responsible for all information and for all taxes owed for that year.
Absent innocent spouse relief.
Marriage penalty.
Agreement to Split Gifts
Portability of unused
unified credit of first spouse to die
Requires an election on Form 706
May need to file a Form 706
just to elect portability
Uncertain fiduciary duty of fiduciary of first spouse to die to make election and/or make a return not otherwise required because below exemption amount.
Rife for controversy and disputes, especially in 2nd
marriage situations
Valuable to high net worth individuals
Whether to obligate the filing of a Form 706 and the making of a DSUE election
Whether surviving spouse should pay something for the DSUE election
Require payment of Form 706 expenses, at least if 706 not otherwise required?
Less need in 1st marriages

Greater need in 2nd marriages
PRACTICE TIP: In any event, discuss with client and CYA if not used to protect against later malpractice claim
Option demand period
SAMPLE DSUE CLAUSE: Upon the first death among Husband and Wife, the personal representative or executor of the estate of that first spouse to die (the "Deceased Spouse"), or if no personal representative or executor is serving then such other person or entity eligible to file a federal estate tax return (or state estate tax returns, as to such a returns) (hereafter referred to as a "Statutory Executor"), shall undertake all timely action so as to make available to the surviving spouse (the "Surviving Spouse") the deceased spousal unused exclusion amount for federal estate and gift tax purposes as that term is defined under Code §2010(c) or successor provisions thereto (the "DSUEA"). Such action shall include the proper preparation and the complete and timely filing of a federal estate tax return for the Deceased Spouse, the computation of the DSUEA thereon, the making of the election described in Code §2010(c)(5)(A) (or successor provisions thereto), and compliance with all applicable statutes and regulations relating to a DSUEA election. Similar returns and elections shall be filed in all states for state estate tax purposes that have similar DSUEA provisions in which the Deceased Spouse owned or is treated as owning property that is included in the gross estate of such Deceased Spouse for state estate purposes in such state, and in those states in which the Surviving Spouse gives notice to the domiciliary personal representative or executor of the Deceased Spouse or a Statutory Executor if no personal representative or executor is serving within six months of the death of the Deceased Spouse requesting such filings and treatment. In the event that neither the estate of the Deceased Spouse, representatives of the estate of the Deceased Spouse nor any persons owning or receiving an interest in the property of the Deceased Spouse have a federal or state estate tax filing obligation after the death of the Deceased Spouse aside from the necessity of making a DSUEA election (e.g., by reason of having insufficient taxable assets to meet filing thresholds), the Surviving Spouse shall pay the costs of preparation (including for applicable appraisals and ancillary expenses) of those of the foregoing returns that are not so required but for the making of the foregoing DSUEA elections. The Surviving Spouse may give written notice to the personal representative or executor of the estate of the Deceased Spouse (or to any known Statutory Executors, if no personal representative or executor is then serving) within four months of the death of the Deceased Spouse waiving the making of one or more of the DSUEA elections for federal purposes and state purposes - if so delivered the Surviving Spouse's obligation to pay the costs of preparation of such waived returns under the foregoing provisions shall not apply (except as to the federal return if required to be prepared for a state return whose preparation is not waived). The personal representative or executor of the estate of the Deceased Spouse and any Statutory Executors shall reasonably cooperate with the Surviving Spouse so as to determine the returns that need to be filed under this Paragraph, and such that the Surviving Spouse receives an estimate of the DSUEA amount as soon reasonably practicable and receives a full copy of all federal and state estate tax returns with supporting documents when filed. References herein to the personal representative or executor of the estate of the Deceased Spouse when not preceded by the term "domiciliary" refer to the domiciliary personal representative or executor but shall also include any ancillary appointments to the extent such appointed persons or entities have obligations or authority to file the federal and state estate tax returns referred to in this Paragraph. The Surviving Spouse and the personal representative or executor of the Deceased Spouse and any applicable Statutory Executors shall have such further obligations among them as reasonably relate to the fulfillment of the purposes of the purposes of this Paragraph even though not specifically provided for herein.
Qualified Plans
Assignments of Interests During Lifetime (including Divorce)
General Rule:
A nonparticipating spouse has no rights to qualified pension and profit-sharing plans regardless of state law, and such rights cannot be assigned to the nonparticipating spouse except in a divorce. IRC §401(a)(13)(A); 29 USC § 1056(d); Boggs v. Boggs, 520 US 833 (1997)
A marital agreement that purports to assign an interest in an a plan subject to ERISA to a nonparticipating spouse is invalid.
Florida Law
F.S. 61.076 provides: “All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.” Therefore, under Florida law, retirement plans are specifically held to be marital property subject to equitable distribution.
Developing law in Florida and elsewhere suggests that if a marital agreement is silent with respect to a right or obligation related to a retirement account, the party seeking a share of the other party’s account may have waived or forfeited that right.
Allows for qualified division of a retirement account
Recipient former spouse treated as distributee and taxed accordingly
Generally applies only to private employers for ERISA plans
PRACTICE TIPS: Get plan administrator approval in the marital agreement - Review plan documents - Consider engaging an ERISA expert
ANOTHER TIP: Since failure to provide for the QDRO in the final judgment may result in a waiver of rights to the plan assets, the marital agreement should provide that a final judgment of dissolution will not be entered until a QDRO has been prepared and approved by the plan administrator.
QDRO not required, but custodian may still request one or a letter of instruction
A transfer of all or part of an interest to a spouse or former spouse, under a divorce or separate maintenance instrument, is not considered a taxable transfer. IRC §408(d)(6).
Beginning on the date of the transfer, the transferred IRA interest is treated as the spouse’s or former spouse’s IRA. IRC §408(d)(6).
Waiver of Survivor Rights
ERISA Waivers
A marital agreement that purports to waive a non-participating spouse's right to a survivor annuity is not enforceable, absent strict compliance with statutory conditions.
The REA gives to an employee's surviving spouse rights under a qualified plan that can be waived only with the consent of that spouse (not a “prospective spouse”), expressed in a specified manner.
So how get a waiver BEFORE marriage in a prenup?
Probably can't compel a waiver post-marriage, but typically a prenup will impose other penalties if no waiver - e.g., loss of other benefits under the prenup
Other non-ERISA retirement accounts, like IRAs, are not subject to ERISA waiver restrictions, and can thus be waived in a marital agreement.
Enforceability Issues
Enforceability in General (All States)
Historically - not enforced - encouraging divorce
Most jurisdictions have abandoned
this - some only recently
Risk: Unenforceability in a jurisdiction where assets located that does not enforce marital agreements
Give attention to governing law
Consider local counsel when appropriate
Generally must be in writing.
But oral or implied agreements sometimes given effect if partially performed.
General adherence to contract law required.
Avoid fraud, deceit, duress, coercion, or misrepresentation.
Unconscionability can be a problem - sometimes measured from time of enforcement, not creation.
Adequate consideration may be needed.
Special Circumstances in Some Jurisdictions
Fairness requirements.
Opportunity to retain counsel.
Cannot promote divorce.
Unclear where the line is.
Be cautious of provisions that provide a financial incentive to obtain a divorce or to goad the other spouse to do so.
Include a severability provision
Public policy limitations.
Religious faith of children.
Damages in the event of infidelity in a no-fault jurisdiction.
Waiver of a right to obtain a divorce.
Not subject to the Contract Clause
of the U.S. Constitution
Effect: No restriction on legislative impairments of such contracts
Disclosure Aspects
Informed decision, but exactness not required.
Surrounding circumstances are relevant, as is representation by counsel.
Possibility of cure by making a full disclosure at a later date.
Before signing.
Anticipated inheritances and gifts.
Consider including liability information.
Separate Counsel
Relevance of these General Rules
Should not rely solely on Florida law.
Parties may move.
Non-Florida court may decide not to follow Florida law.
Enforceability in Florida
General contract law applies.
More frequently successfully challenged then nonmarital contracts, especially for overreaching, coercion, or duress.
Recent trend towards courts enforcing the contracts as written as opposed to rewriting a contract in an effort to deliver fairness and equity.
Two Different Separate Sets of Rules
Prenuptial agreements - statutory under Florida Uniform Premarital Agreement Act
Postnuptial agreements - common-law
Disclosure Aspects
Prenup - FUPPA - full disclosure not required
But advisable since it blocks an unconscionability challenge (but so will a waiver of disclosure)
The statute references "a fair and reasonable disclosure of the property or financial obligations" ("or" vs. "and"??)
Postnuptial - full disclosure not required
But advisable since it is a defense to challenge of the agreement as to lack of fair and reasonable provisions. Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962); Casto v. Casto, 508 So.2d 330 (Fla. 1987)
However, agreements affecting elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative, require a fair disclosure of assets. Fla.Stats. § 732.702.
Florida Standards of Disclosure
FUPAA - "fair and reasonable" of property or financial obligations
So include financial obligations in the disclosures
Del Vecchio - "full and frank disclosure"
Need not be "minutely detailed nor exact."
O’Connor v. O’Connor
, 435 So.2d 344, 345 (Fla. 1st DCA 1983),
Items to Consider Including:
Financial statements.
Income Tax Returns.
Include liability and financial obligations.
Attach items in lieu of cross reference to cut off future potential challenge of nondelivery.
Misc. Florida Case Law
The wife must have knowledge of the husband’s income. Cladis v. Cladis, 512 So.2d 271 (Fla. 4th DCA 1987), limited on other grounds 740 So.2d 1181.
Contracts must be entered into freely and voluntarily. Potter v. Collin, 321 So.2d 128 (Fla. 4th DCA 1975).
There must be consideration, Gelfo v. Gelfo, 198 So.2d 353 (Fla. 3d DCA 1967), although the court generally will not inquire into its adequacy, Ryland v. Ryland, 605 So.2d 138 (Fla. 4th DCA 1992), receded from on other grounds 740 So.2d 1181. However, the marriage itself is sufficient consideration to support a premarital agreement. O’Shea v. O’Shea, 221 So.2d 223 (Fla. 4th DCA 1969).
The contract must not violate public policy. Busot v. Busot, 338 So.2d 1332 (Fla. 2d DCA 1976).
Most of the foregoing cases preceded the Florida Uniform Premarital Agreement Act, and thus may be impacted by the Act as to prenuptial agreements.
Limits on Waivers
A husband may not completely relieve himself of his obligation to support his wife while she remains his legal wife. See Belcher v. Belcher, 271 So.2d 7 (Fla. 1972); Young v. Young, 322 So.2d 594 (Fla. 4th DCA 1975).
If upon dissolution of a marriage, permanent spousal support is completely eliminated, Fla.Stats. §61.079(7)(b) mandates that support can be required if the waiver results in the waiving spouse qualifying for a program of public assistance at the time of separation or marital dissolution.
Temporary support pending divorce cannot be waived.
PRACTICE TIP: Waivers of temporary alimony and support in a marital agreement, and related attorney fees, should include language to the effect "to the extent enforceable under applicable law." Further, clients should be advised that these items may not be waivable.
A Primer on the Florida Uniform Premarital Agreement Act
Effective October 1, 2007
Agreement Requirements
In writing.
Signed by both parties.
Voluntary execution.
No fraud, duress, coercion, or overreaching.
Not unconscionable WHEN EXECUTED, unless before the execution of the agreement the contesting party:
Was provided a fair and reasonable disclosure of the property or financial obligations of the other party,
Did voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations beyond the disclosure provided, or
Had, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other party.
PRACTICE TIP: Either disclose, or waive disclosure.
Not required,
other than the marriage itself.
Permitted Content
Rights and obligations in property.
Rights to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign , create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
Disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
Establishment, modification, waiver, or elimination of spousal support.
The making of a will, trust, or other arrangement carry out the provisions of the agreement.
Ownership rights in and disposition of the death benefits from a life insurance policy.
Choice of law.
Any other matter, including personal rights and obligations, not in violation of Florida public policy or a law imposing a criminal penalty.
Limitations on Agreements
Cannot adversely affect the right of a child support.
Court may impose support obligations if agreement results in spouse qualifying for public assistance at the time of separation or dissolution.
Florida limits on agreements relating to religious training of children.
Miscellaneous Aspects
Effective upon marriage.
After marriage, it may be amended, revoked, or abandoned only by a written agreement signed by the parties.
No consideration required for amendment, revocation, or abandonment.
If a marriage is determined to be void, so is the premarital agreement except to the extent necessary to avoid an inequitable result.
Disclosure of assets not strictly required.

However, recommended to protect against unconscionability argument.
Unconscionability measured at the time of marriage, not a later date. Florida rejected an optional provision of the UPMAA allowing a court to refuse to enforce the term of a premarital agreement if doing so would result in substantial harm because of a material change in circumstances after the agreement was signed.
Postnuptial Agreements
Reminder: Enforceability based on case law, since UPAA provisions only relate to prenuptial agreements.
Seminal Case:
Casto v. Casto
, 508 So.2d 330 (Fla. 1987).
A bad bargain is not sufficient ground, by itself, to vacate or modify.
The absence of legal advice or incompetent legal advice is not a basis to set aside an agreement.
A court may set aside or modify for fraud, deceit, duress, coercion, misrepresentation, or overreaching.
Spouse must show that “the agreement makes an unfair or unreasonable provision [for the challenging spouse] given the circumstances of the parties.” Id. In determining if the agreement was, in fact, unreasonable, the trial court must find that the agreement is “‘disproportionate to the means’” of the defending spouse.
Once the challenging spouse establishes that the agreement is unreasonable, the burden shifts to the defending spouse, who may rebut by showing that:
1. there was “a full, frank disclosure” to the challenging spouse before signing of the agreement relative to the value of all the marital property and income of the parties, Casto, 508 So.2d at 333, or
Required Disclosure for Certain Rights Waivers
As to agreements affecting elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative, a fair disclosure of assets is required. Fla.Stats. § 732.702.
Other Advice And Recommendations Regarding Enforceability
Separate legal counsel for each spouse.
Each spouse selects their own legal counsel
Each spouse pays for their own legal counsel, if practical.
Extended time period for drafting and execution prior to marriage to minimize coercion claims.
Special Business Issue Considerations
Indemnification for business debts and taxes.
Forensic accounting or audits in the event of divorce or separation.
How much income will be contributed to the household.
Clarifying to whom future growth belongs.
Who has economic interests in new business or subsidaries.
What happens if one spouse is an employee of the other or their business.
Special 2nd Marriage Considerations
Prior divorce and support obligations.
Support of other children.
Naming of fiduciaries.
Burial/remains disposition instructions.
Life Insurance Considerations
Acquisition of insurance, now or upon divorce.
Coordinate premium payments with alimony characterization.
Required beneficiary designations.
Miscellaneous Due Diligence
Review credit reports.
Review tax returns.
Address health issues, including representations regarding same.
Review marital and family history.
Impact of Incapacity or Disability
Address who will handle finances.
Consideration of insurance to cover expenses.
Consider obligation to support in these circumstances.
by Charles (Chuck) Rubin

This is good or bad depending on whether you are the payor or the payee!
Not usually required
Relevant for duress
Relevant for questions of
being fully informed
2. the challenging spouse had a “general and approximate knowledge . . . of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties.
Gutter Chaves Josepher Rubin Forman Fleisher PA Boca Raton, FL 561-998-7847
Oct. 2015
Charles (Chuck) Rubin
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