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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

VIDEO: Understanding Prenuptial Agreements under New York Law

Elliot S. Schlissel is a family law attorney. He can be reached at 516-561-6645 or by email at elliot@sdnylaw.com

Who Needs a Prenuptial Agreement?

family law and divorce attorney on Long IslandPrenuptial agreements are not for everyone. The only individuals eligible for prenuptial agreements are people getting married. Seriously though, who needs a prenuptial agreement and why would you really want one?

Prenuptial Agreements deal with issues such as assets accumulated during the marriage, professional licenses and spousal maintenance issues.

Starting On Equal Terms

Many couples who marry have similar financial circumstances. However, during the course of the marriage, one party may decide to stay home and raise the children which would have a negative impact on his or her career. This provides a ground in a divorce for requests for alimony (spousal maintenance).

Prenuptial Agreements Cost Less Than Engagement Rings

Engagement rings today cost anywhere between $5000 and $25,000. A prenuptial agreement will usually cost between $2500 and $7500. It is a lot cheaper than an engagement ring. It is said that diamonds last forever. Diamonds in the engagement ring may last forever but 50% of all marriages fail. This makes the cost of prenuptial agreements when considered over the long run a lot less expensive.

Don’t Wait For The Last Minute

If you anticipate entering into a prenuptial agreement with your future spouse, you shouldn’t wait to a few weeks before the marriage to retain an attorney to draft the document. Prenuptial agreements should be negotiated several months before the parties get married.

Prenuptial Agreement Lawyers

assistance in family court and with prenuptial agreementsThe attorneys at the Law Offices of Schlissel DeCorpo draft prenuptial agreements. It addition we draft post nuptial agreements and separation agreements. The firm also litigates all divorce issues. These issues may involve divorce grounds, family law, child custody, changing visitation, child abuse and child neglect, drafting separation agreements, prenuptial and post nuptial agreements. We also have litigated cases involving mothers’ rights and fathers’ rights. Call for a free consultation.

Prenuptial Agreement Set Aside By Court

prenup-150x125A wife recently brought a proceeding before Judge Anthony J. Falanga in the Supreme Court located in Nassau County. She claimed in this proceeding the 1998 prenuptial agreement she executed should be set aside. She alleged her husband fraudulently induced her into signing the agreement. She was convinced to sign the prenuptial agreement because of her spouse’s promise to destroy it upon the birth of the couple’s first child. He promised as soon as the first child was born all of the assets of the marriage will be placed in both her and his name.

Husband Duped Wife Into Executing the Prenuptial Agreement

Judge Falanga carefully reviewed the evidence submitted to him on this case. He rendered a decision declaring the prenuptial agreement null and void. He found the husband had made promises to the wife at the time of the execution of the agreement. These promises were lies and misrepresentations. The husband had no intention of carrying out these promises. He only made these promises for the purpose of convincing the wife to sign the prenuptial agreement so the wedding would take place.

The court noted the husband only provided the wife with a copy of the agreement a short time prior to the wedding date. Judge Falanga stated “this was calculated and speaks volumes as to the importance he attributed to being protected financially from a possible failed marriage.” The court in it’s decision stated “the wife had justifiably placed her trust in her future husband’s representations to her detriment and was damaged by being denied a share of significant marital property.”

Conclusion

If you’re entering into a prenuptial agreement, it should be prepared long in advance of the wedding and trickery should not be used to induce a party to execute the agreement.

New York Divorce Lawyers

The attorneys at the Law Offices of Schlissel DeCorpo have extensive experience in drafting prenuptial agreements as well as postnuptial agreements. They also have been litigating high net worth divorces for decades. Should you find yourself in a divorce situation they can assist you with issues involving divorce grounds, child custody, division of property and mediation of the divorce. In appropriate situations, they negotiate separation agreements on behalf of their clients. Call for a free consultation with regard to any family court or divorce matter. The phone numbers are 1-800-344-6431 or 516-561-6645 or 718-350-2802.

Getting Divorced During an Economic Downturn

divorce-150x1502The financial crisis in the United States is causing tension within families. Financial problems can be the cause of a divorce. In most marriages the family home is the largest asset. The decline in home values over the past three or four years has resulted in many homes being worth less than the mortgages on them.

Postponing Divorce

Recent studies have shown that nearly a third of all couples who considered divorce have postponed their divorce plans due to financial problems.

Divorce and Real Estate Issues

What do you do with the house in the divorce? Who stays in the house? Who is responsible for paying the bills on the house? These are significant issues that must be dealt with.

Living Together Until Financial Problems Can Be Dealt With

One choice for couples who don’t get along is to continue living together, but not as man and wife. These couples live together with the hope that their financial situation will improve and they will be able to sell their home and get their equity out of it. However, there is no sign the real estate market is improving throughout the majority of the United States. Furthermore, there is always a question as to whether living with someone you don’t get along with creates a negative environment for the children or will result in domestic violence.

Are the Mortgage Payments Behind?

If the mortgage payments are behind, the unhappy couple will eventually be receiving a foreclosure notice. Is it better to sell the house now or wait until it’s sold in foreclosure?

Modern Divorce

Divorce can be a contentious issue or it can be negotiated. The best solution for couples that don’t get along is for them to sit down with attorneys and negotiate in a mature, amicable manner, in either a divorce settlement or separation agreement. This will help avoid the acrimony and high cost of litigation.

New York and Long Island Divorce Lawyer

The Law Offices of Schlissel DeCorpo have been handling divorces in the Metropolitan New York area for over 33 years. We litigate all aspects of divorce related proceedings in the Supreme Court and Family Court. These proceedings involve divorce grounds, no fault divorce, child custody, mothers’ rights, fathers’ rights, child support, downward modification of child support, spousal maintenance (alimony)and domestic violence issues. In addition, we negotiate separation agreements, prenuptial agreementsand post-nuptial agreements for our clients. We litigate equitable distribution issues involving doctor, dentist and lawyer licenses. Call us for a free consultation.

Funding of Divorce Litigation

divorce11-150x150There is a new concept in the handling of divorces that is accepted in a number of states.  Funding companies offer to cover the legal costs of litigating the divorces.  They pay for the legal services of the party’s lawyer.  They also pay for finding hidden assets and maintaining an individual’s lifestyle during the course of the divorce litigation.  What do they get for this? They receive a share of whatever is awarded to the litigant by the courts. An example of a company that does this type of work is Balance Point Legal Funding, located in Beverly Hills, California.
Michelle and her husband had assets of millions of dollars.  They owned several properties.  They had investments and they owned a freight hauling business.  They had two homes, as well as a motor home, and approximately six different cars. When Michelle brought a divorce proceeding against her husband, she ran out of money to continue with the lengthy litigation. This is a technique often used by husbands to force women into entering into settlements for a pittance of what they are actually entitled to.

Instead of accepting a smaller settlement, she entered into an agreement with Balance Point Legal Funding.  For a percentage of what she received, they advanced her $200,000 to allow her to live comfortably, as well as litigate her case.

Balance Point Legal Funding is part of a trend.  They are part of an industry that currently invests in other people’s lawsuits. This helps plaintiffs in divorces, personal injury matters, medical malpractice cases and other types of litigation to move forward with lawsuits when they would otherwise not have sufficient assets on their own to bring their case to fruition. Balance Point Legal Funding currently has more than one billion dollars invested in pending lawsuits in the United States.  The focus of Balance Point Legal Fundings is on divorce cases with marital assets between two and fifteen million dollars.

High Net Worth Divorces

The Law Offices of Schlissel DeCorpo handles high net worth divorces.  We deal with issues involving family businesses.  We help doctors, lawyers and dentists in obtaining divorces from their spouses.  We negotiate separation agreements that preserve our clients’ assets.  We also assist our clients with child custody and spousel maintenance (alimony) issues.  When the situation arises, we obtain annulments for our clients.  We negotiate prenuptial agreements, as well as postnuptial agreements, for our clients.  Feel free to contact us at 1-800-344-6431; 516-561-6645 or 718-350-2802.

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