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Appeals Court Allows Wife To Challenge Attorney’s Fee Waiver in Prenuptial Agreement

divorce attorneys on Long IslandIn a case of first impression, an appeals court sitting in New York County, has allowed a non-monied spouse to bring a challenge to set aside what is a standard clause in most prenuptial agreements where each of the parties to the agreement waives claims to have the other party pay their attorney’s fee. This Appellate Division (the appeals court) decision overruled a Supreme Court decision which had prevented the wife from bringing an application to have her husband pay her attorneys’ fees.

Attorneys’ Fees Are A Trial Issue

The Appellate Court stated in its decision, “in order to ensure a level playing field, the question of the validity of the counsel fee provision for the non-child related issues in the parties’ agreement should be considered at trial.” The Appellate Court went on to state, “the great disparity between the parties’ finances, plaintiff’s request for attorney’s fees beyond those incurred for child related issues is an issue appropriate to leave for trial.”

In her suit, the wife challenged the spousal maintenance provisions of the prenuptial agreement, wherein she alleged those provisions were “presently unconscionable in terms of plaintiff’s current needs, expenses and income.” The lower court judge had said the issue of spousal maintenance could be considered at trial but the attorney’s fees issue for litigating the case were precluded by a waiver clause in the prenuptial agreement.

Pressured Into Signing the Agreement?

The Appeals Court ruling rejected the wife’s claims she had been pressured into signing the prenuptial agreement. The court stated, “the record is clear that this agreement was negotiated over approximately four weeks.”

Conclusion

Prenuptial agreements involve many significant terms. Those entering into prenuptial agreements should hire experienced attorneys to represent them and should spend a reasonable amount of time negotiating the agreement prior to the time of the marriage.divorce attorney on Long Island

High Net Worth Divorces

On today’s video blog we are talking about high net worth divorces and how to plan for your divorce:

Elliot S. Schlissel is a divorce attorney representing clients in the Metropolitan New York area for more than 35 years. Elliot and his associates handle all aspects of matrimonial law including equitable distribution of assets, spousal maintenance, child support, child visitation, and custody issues. The lawyers at the Law Offices of Schlissel DeCorpo can be reached for consultation at 516-561-6645, 718-350-2802, or by email to schlissel.law@att.net.

Mediating Your Divorce

mediation-150x150If you seek a non-confrontational approach to ending your marital relationship, mediation may be the route for you to take. Mediation is a type of Alternative Dispute Resolution (ADR), which can be a very cost-effective and efficient manner of amicably working out divorce related issues.

Mediation, Not Litigation

Mediated divorces are not litigated and there are no court appearances. A trained and neutral third party, usually an attorney familiar with matrimonal and family law, meets with the parties and reviews all issues with them in a non-confrontational manner. If the parties are mature, reasonable, and patient, mediation may be the best route to take with regard to handling a divorce case.

Divorces Where Mediation Won’t Work

Mediation, however, is not for everyone. Situations where the parties are not talking to each other or are not amicable do not present a good prospect for mediation. Cases involving very volatile relationships are also inappropriate cases for mediation. Further, domestic violence matters should not be mediated.

Mediation Requires Good Faith

For mediation to be successful both parties must be honest with each other. If either party hides assests or seeks to intimidate the other party, mediation is not going to work.

Divorce Can Be Difficult

Divorcing your partner can be a difficult process. Long term decisions need to be made on issues such as child custody, visitation (parenting time), spousal maintenance (alimony), equitable distribution of assets, dealing with business assets, valuing professional degrees, as well as the grounds for divorce. If you decide to use mediation, you should choose your mediator carefully. The Matrimonial and Family law attorneys at the Law Offices of Schlissel DeCorpo have more than 100 years combined experience dealing with all types of Matrimonial and Family Law issues. We are available to discuss mediation and other divorce related topics. Contact us for a free consultation.

Divorce Rates For Women In the Military

Divorce rates for women in the military is double the divorce rate for men in the military. Approximately 8% of the women in the Armed Services of the United States obtained a divorce in 2010.  Only 3% of the men in the military were divorced in that year.  Dr. Benjamin Carney, a psychology professor at UCLA, conducted a study of divorce rates among military families between 1996 and 2005. This study showed that divorce rates for women in the military were 2 to 3 times higher than divorce rates for men.  Dr. Carney has two theories as to why the divorce rates for women are higher.  First is that the Armed Services are designed for military families that have civilian wives.  The Armed Services is not designed to deal with families where the husband is the civilian.  Marriages between men, who are in civilian life and women who have military careers have the highest  potential of ending in a divorce.  Men who have chosen military careers have civilian wives in 90% of the marriages.  However, women in the military have a majority of spouses that are also in the military service. Professor Carney also sees gender role reversals as an additional reason for the disparity between the divorce rates for men and women in the Armed Services.

Conclusion: If the Armed Services is going to be a more attractive place for women, action must be taken to help them maintain and keep their marriages going.

New York and Long Island Divorce Lawyers

The Law Offices of Schlissel DeCorpo handles all types of divorces. We represent individuals in the service as well as men and women in civilian life. We litigate divorce issues involving divorce grounds and family law related matters. We represent our clients concerning orders of protection, child custody, child abuse and child neglect matters. We negotiate separation agreements, pre nuptial and post nuptial agreements on behalf of our clients. We litigate issues involving mother’s rights and father’s rights. We help our clients deal with the division of property in divorces and we also work towards amicable resolution of divorce issues. Feel free to call us for a free consultation

Politics and Marital Fidelity

marriage-150x150The personal lives of presidential candidates are quickly subject to detailed scrutiny. Marital infidelity is a topic that the gossip sheets, internet websites and newspapers dwell on.

Bill Clinton and Monica Lewinsky

There were rumblings during Bill Clinton’s first run for the presidency that he had been involved in extra-marital relationships. His wife, Hillary, stood by him through Bill’s denials of martial infidelity. Then came Monica Lewinsky. Of course, Bill said he never had sex with her. However, Monica’s activities with Bill resulted in his semen being deposited on her dress. Bill was almost impeached because of these improper activities and lying about them.

The Terminator

Arnold Schwarzenegger was the governor of California and one of the most powerful politicians in the country. It has recently come to light that he had a child with one of his household staff. Arnold was able to cover up this child’s existence for more than a dozen years. Unfortunately, it has become a public issue and his wife, Maria Shriver, has left him. Sorry about that, Arnold!

Presidential Politics in 2012

Governor Mitch Daniels of Indiana is considering running for the presidency of the United States. However, there are some issues concerning Mrs. Daniels. In 1993, she left her husband and her four children. She went to California and married a different man. She later remarried Mr. Daniels in 1997. These are delicate matters that the Daniels family will have to face should he decides to throw his hat in the ring.

Newt Gingrich

Newt has, in the past, admitted his numerous marital infidelities. He is now married to his third wife. Will she be able to handle the media scrutiny of a presidential run?

Americans Want Candidates With Character

The relationships that candidates have with their families and their family structure are looked at by the American public as clues to their character. Europeans refer to Americans concern about martial fidelity as reflective of the provincial nature of relationships in America. Whether America is provincial or not, those relationships are examined in the press when you run for office.

New York and Long Island Divorce Lawyers

The Law Offices of Schlissel DeCorpo have been handling divorces for more than three decades. We represent individuals in dealing with the grounds for divorce and family law issues. We litigate issues concerning child custody, child abuse and child neglect. We negotiate separation agreements, and pre-nuptial and post-nuptial agreements on behalf of our clients.

We represent men and women who have issues involving fathers’ rights and mothers’ rights. We also assist our clients in obtaining annulments. Feel free to call us for a free consultation.

Constructive Abandonment (Sexual Abandonment Denied)

constr-150x150 Justice Bruno sits in a Supreme Court located in Nassau County, New  York. Last summer he made an interesting decision on a case that was  before him. A man brought a divorce lawsuit against his wife. The grounds for divorce was constructive abandonment. (Sexual  abandonment by the spouse for a period in excess of one year).

The man testified his wife had refused to have sexual relations with him for a period of twelve years. His wife testified that she never refused to have sexual relations with him. Judge Bruno found each of the parties credible in their testimony.

In his decision, he stated, “on balance, these competing versions of the relationship of the parties in and of itself is a wash.” “Put another way, plaintiff has not established a fair preponderance of the credible evidence that there was a constructive abandonment here where there is even balance of evidence the court is required to find for the defendant.”

Civil Case Evidence Standards

In a civil case, the standard a plaintiff must prove is called a preponderance of the evidence. This can be explained as the scales of justice, with more evidence on one side than the other. This is different than a criminal case, where a case must be proven beyond a reasonable doubt and the district attorney’s office must obtain a unanimous jury decision.

Constructive abandonment issues involve what takes place in a married couples bedroom. These are almost always “he said, she said” cases.

Irreconcilable Differences

Under the new ground for divorce called irreconcilable differences, these issues are no longer significant. Under the new irreconcilable differences ground for divorce in New York, one party must simply allege that irreconcilable differences between the spouses have existed for a period of more then six months. This simplifies the grounds issue in divorce situation.

Long Island Divorce Lawyers

We are divorce lawyers and our office is on Long Island. We litigate all divorce related issues and family law issues. We deal with matters concerning orders of protection, child custody, child abuse and child neglect. We litigate annulments when appropriate. We represent individuals in high net worth divorces and we deal with issues concerning the division of property, fathers’ rights, mothers’ rights and both pre-nuptial and post-nuptial agreements. Call us if you need a divorce or family court attorney.

New York’s Mandatory Retirement of Judges: A Mistake

judges-150x150

New York judges must retire on or before September 31st in the year in which they reach seventy years of age. The statute is a mistake. It should be amended, modified, changed or eliminated completely.

Under the current system, judges who reach the mandatory retirement age can obtain up to three extensions for periods of two years. To obtain these extensions, the judge has to be re-certified that he or she is capable of continuing to work as a judge.

Numerous Judges who are forced into retirement are brilliant jurists. They still have a lot to contribute to resolving the problems faced by litigants. Forcing the most experienced and often the most dedicated judges into premature retirement does not benefit lawyers, litigants or the administration of justice.

Justice Edward A. Marin

Justice Edward A. Marin, who sits in the matrimonial part of the Supreme Court in Nassau County, was seventy years of age in 2010. I know Justice Marin to be a bright, articulate, energetic judge. I was shocked to find out he is seventy years of age. Men of Justice Marin’s caliber are simply too dedicated, too bright and too hard-working to be forced into early retirement. For more than thirty-five years, Justice Marin was an active attorney working in private practice in Nassau County. He has now been on the bench in both County Court and Supreme Court for in excess of ten years. I find Justice Marin to be a tough, bright, hardworking, respected justice. It is a shame that, in a mere six years, Justice Marin will be forced off the bench, even if he is approved for the three two-year extensions.

Amend The New York State Constitution

To deal with the mandatory retirement of judges, it will be necessary to amend the New York State Constitution. The process of amending the constitution requires two separately elected legislatures to approve the measure, and then the measure must be ratified by a majority of the voters in a state-wide referendum.

I am currently sixty years of age and I will turn sixty-one in March. I am young, energetic and still at the height of my tennis prowess. I don’t expect when I turn seventy to be considering retirement. Americans are living longer and longer and have more years of productive activity available to them in their professions than previous generations. Mandatory retirement ages for judges must be reconsidered.

divorceLong Island Divorce Lawyers

At the Law Offices of Schlissel DeCorpo, we litigate divorce proceedings on Long Island. We have extensive experience in handling matrimonial and family matters in both Nassau and Suffolk Counties. Our office also deals child custody cases and family court cases throughout the metropolitan New York area. We aggressively represent our clients regarding investigations concerning child abuse and child neglect. When our clients are served with orders of protection, we actively and effectively litigate these matters to have our clients returned to their homes.

Should you have a matrimonial or family law problem in the metropolitan New York area, call us at 516-561-6645, 718-350-2802 and 1-800-344-6431.

Divorce Fails, Lack of Proof of Sexual Abandonment

divorce-150x1506In September of 2010, Justice Bruno, a New York State Supreme Court Judge sitting in Nassau County, heard testimony with regard to fault allegations concerning the issue of constructive abandonment in a divorce proceeding. Constructive abandonment is when one party to a marriage refuses to have sexual relations with his or her spouse for a period in excess of one year.

The wife in this case had to take the witness stand and answer many personal and embarrassing questions about her sex life.

The problem with a constructive abandonment ground for divorce is that sexual activity between husbands and wives usually takes place in the privacy of the bedroom and there are no third-parties to corroborate this type of testimony.

The plaintiff in this action, Sandra McPhee, testified that she and her husband had not had sex since their honeymoon in 1979. Unfortunately, Ms. McPhee forgot that she had two children during the course of her marriage. She later testified after her memory was refreshed that she and her husband had not had sexual relations since December, 2001. When questioned whether she had asked her husband to have sex with her since then, her response was “no”.

Justice Bruno dismissed Ms. McPhee’s case. He ruled that she failed to establish constructive abandonment by her testimony. He stated, “the plaintiff did not offer any credible evidence that the defendant’s refusal was unjustified, willful and continued despite repeated requests to resume sexual relations.”

New No-Fault Divorce Law Eliminates This Problem

The new no-fault divorce law in the State of New York only requires that a party plead that there has been an irretrievable breakdown of the marriage for a period in excess of 6 months. The pleadings to this no-fault divorce cause of action are simple. The testimony simply has to be that the parties have had a breakdown in their marriage that is irretrievable and the breakdown has lasted in excess of 6 months.

Ms. McPhee is Fortunate

Since the new law went into effect on October 12, 2010, Ms. McPhee can immediately start a new divorce case based on the irretrievable breakdown of her marriage. This time her case won’t be dismissed!

NY and Long Island Divorce Lawyers

The Law Offices of Schlissel DeCorpo has been handling divorce matters for more than 30 years. We represent our clients with regard to issues involving child custody, child support, fathers’ rights, visitation, separation agreements, orders of protection, child abuse and child neglect. Should you need a divorce lawyer, contact us at 516-561-6645; 718-350-2802 or 1-800-344-6431.

Lawyer To Be Jailed If He Doesn’t Pay Daughter’s Tuition

piggy-150x150John J.P. Krol graduated from Fordham Law School and was admitted to the bar in New York in 1982.  He is a practicing attorney.  Mr. Krol was married in 1982 and he has two sons and three daughters.  In 2008, a year after Mr. Krol started a divorce proceeding, his daughter (only identified in the proceeding as “MK”) began attending the University of Rhode Island. Nassau County Supreme Court Justice Bruno wanted Mr. Krol to pay 86% of his daughter’s college education.  Mr. Krol refused to obey the court’s order.  His wife brought an application to hold him in contempt for violating the order.  Mr. Krol eventually paid his daughter’s college tuition.  The following year, he again failed to pay the tuition.  Mrs. Krol again filed a contempt proceeding.  As a result, Mr. Krol again agreed to pay his daughter’s expenses rather than proceed with the hearing on the contempt charges.

The next semester he yet again failed to pay for his daughter’s college education. Ms. Krol brought a third application to hold her husband in contempt.  Mr. Krol argued that he was financially unable to pay the college expenses.  Mr. Krol felt he was being penalized in this case and should not have the burden of paying education expenses.

Judge Bruno, in his decision, stated that “due to the urgency of the instant application, this court finds that the defendant has exhausted other less dramatic remedies, especially having been down this path several times before.  The plaintiff does not dispute he has not paid the daughter’s college education expenses nor does he dispute other less drastic remedies should be taken”.  Judge Bruno sentenced Mr. Krol to serve six months jail time in the Nassau County correctional facility if he did not pay the tuition.  He also advised Mr. Krol that he would file a complaint with the Grievance Committee of the Bar Association with regard to his conduct.  This matter was later resolved by a stipulation entered into between the parties.


New York City and Long Island Divorce Lawyers

At The Law Offices of Schlissel DeCorpo, we have been representing our clients in divorce proceedings throughout the Metropolitan New York area for more than three decades.  We litigate all aspects of matrimonial and family law, including but not limited to, custody proceedingsorders of protection, spousal support, child support and annulments.

Should you need a matrimonial or Family Law attorney, feel free to call us at 1-800-344-6431, 516-561-6645 or 718-350-2802.

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