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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

long island divorce attorneyThere is an expression that no good deed goes unpunished. When an individual is successful in his or her career, or has accumulated assets, those assets and/or the income stream from employment are subject to issues involving equitable distribution, child support and spousal maintenance in a divorce case. High net worth individuals often have real estate assets, stocks, bonds and interests in corporations. The division of these assets can make a divorce proceeding complex. Individuals with high net worths often have interests in businesses or corporations which can create significant problems if the division of these assets are not handled in an appropriate manner.

Marital Property and Separate Property

Marital property refers to assets accumulated during the course of the marriage. Separate property involves assets accumulated prior to the marriage. Assets which were acquired prior to the beginning of the marriage are exempt from equitable distribution with the exception of circumstances where the marriage itself or the spouses had an impact on the value of the property during the course of the marriage. Marital property encompasses all assets accumulated during the course of the marriage. It does not matter whose name the title to the assets are in.

Division of Marital Assets

The division of marital assets involves the appraising of the value of the marital assets. In addition, concerning the issues of spousal maintenance, the specific financial needs of the non-monied spouse are taken into consideration with regard to the issue of spousal maintenance (which was formerly referred to as alimony). The courts look into the contribution of each spouse to the appreciation or development of the assets of the marriage.

Addressing the Issues in High Asset Divorces

assistance in divorce and child issuesShould you anticipate you may be involved in a divorce situation, it is important to hire an attorney as early as possible. This may assist you in maintaining control of your assets and developing presentations for the judge handling your case regarding your contributions concerning the development and existence of these assets and/or minimizing the contributions of your spouse concerning the acquisition of these assets. This type of presentation is helpful in allowing you to maintain a significant portion of your assets at the time of trial or settlement of your divorce case.

New York’s Alimony Laws Are Changing

matrimonial attorneysIn 2010, the State Legislature in New York passed laws with regard to temporary spousal maintenance which is more commonly referred to as alimony. Since then, many divorce and family law attorneys as well as Judges have been upset about these new laws. The temporary maintenance formula is intended to provide a greater level of consistency in all awards made by courts, concerning families involved in divorce litigation. The 2010 amendment to the alimony laws in New York was supposed to alleviate concerns high income families had over issues such as one-time bonuses and mortgage payments.

State Legislature Appoints A Commission

After the temporary alimony law was passed in 2010, the State Legislature organized a commission to evaluate the effectiveness of this new law. The commission made a recommendation that the formula for alimony enacted in 2010 should only apply to people earning up to $136,000 per year. In a divorces involving couples with income greater than $136,000, judges would be given discretion to determine what, if any, alimony is to be paid based on a specific set of factors.

The $136,000 threshold was picked by the commission because it works in conjunction with the same threshold amount that is part of the Child Support Standards Act which is enforced in all 50 states.

Uncertainty About Alimony Awards

Divorce lawyers are concerned that changing the law will bring back uncertainty into the process of determining how much, if any, alimony is to be paid in a divorce. Since approximately 85% of all families getting divorced in New York State make under $136,000 the uncertainty will only exist, if it exists, with regard to a small minority of the families involved in divorce litigation.

Equitable Distribution Of Licenses And Degrees

There is a famous Court of Appeals decision in New York in the case of O’Brien vs. O’Brien which basically stated that professional licenses and degrees from universities are property subject to equitable distribution. The manner in which this type of equitable distribution matter is handled today is forensic experts are hired to determine the value of the professional licenses or degrees and the courts give an award of a percentage of said license or degree to the spouse. This principle is called Enhanced Earning Capacity. The commission appointed by the legislature has recommended abolishing this legal precedent. They feel licenses and degrees should not be subject to equitable distribution.

Conclusion

The divorce laws on New York State need to be modified pursuant to the commission’s recommendations. It is now up to the State Legislature to pass these changes to the divorce laws in New York.divorce assistance

Happy Holidays: I Want a Divorce

nassau divorce attorneySpouses, in unhappy marriages, often wait until the end of the year, after the holiday season, to decide to move forward with their divorces. This is especially true when the parties don’t get along and the frustration between the spouses boils over related to get-togethers that go poorly at Christmas time. Spouses that are not happy in relationships sometimes wait until after the first of the year to avoid impacting on the children’s lives during the holiday season.

Divorce Filings Increased after the First of the Year

It is not uncommon for divorce lawyers to receive an unusually high rate of inquiries concerning divorces at or around the end of the year. So what do you do if your spouse says to you in early 2013, “I’m filing for divorce?” To start with, do not create a violent incident. Discuss the situation with your spouse calmly and see if marriage counseling is a possible solution to your problem.

If it turns out a divorce is going to be moving forward, the first thing you need to do is to obtain copies of all financial records, tax returns, 401 K statements, pension statements, bank account statements, checking account statements, credit card statements, copies of paychecks and all other financial records are important items when considering moving forward with a divorce. A marriage is a social and economic partnership. When the social part is over, the issues to be decided by the court or negotiated into a settlement agreement involves child custody, visitation, equitable distribution of marital assets, child support and spousal maintenance (alimony).

Hiring a Divorce Lawyer

divorce and custody assistanceWhen a divorce is inevitable, you should immediately consider hiring a divorce attorney to protect your interests. Make sure you retain an attorney who can calmly explain to you how the divorce process works and who you are comfortable dealing with.

Wife Granted Change Of Venue To Suffolk County

matrimonial attorneysJustice Matthew Cooper, sitting in Supreme Court, New York County, granted an application in the matter of Castaneda v. Castaneda, for a change in venue in a divorce proceeding from Manhattan to Suffolk County. The wife in this case brought an application claiming that the venueing of the case in Manhattan was improper. She resided in Suffolk County. Her husband resided in Queens County.

Justice Cooper, in his decision, wrote “that it appears to become an accepted practice for ‘so called divorce mills’ to file divorce actions in New York County even when neither of the spouses actually live in the county.” He presumed that they took this action because New York County processed divorces faster than other counties.

Wife In Suffolk County And Husband In Queens County

Justice Cooper in his decision stated that since the wife lived in Suffolk County and the husband lived in Queens County, New York County could not be the proper venue for the divorce proceeding. He granted the wife’s application to change venue. The Court stated the legislature should amend the New York Civil Practice Laws and Rules to require parties in divorce proceedings to file the proceedings in the county in which they reside in unless there were special circumstances shown. In the alternative, he suggested trial Judges be given the discretion on their own to transfer cases to the proper county the case should be heard in.

Divorce mills refer to attorneys that do high volume allegedly simple divorces often assuming the issues involving custody, child support, spousal maintenance and other significant issues have been resolved and therefore the parties just need a change in their status. This is not always the case. In many situations the alleged uncontested divorces often fall apart and contested litigation proceedings are necessary.divorce attorneys on Long Island

Temporary Spousal Maintenance In New York

divorce attorneys on Long IslandIn October 2010, the State Legislature in New York enacted guidelines for calculating temporary spousal maintenance. The purpose of this new statute is to provide consistency in spousal maintenance awards by judges. The temporary maintenance law provides a formula by which the parties to a matrimonial lawsuit can determine what, if any, spousal maintenance is required to be paid on a temporary basis.

Temporary Maintenance Law Does Not Work

The temporary maintenance statute has not accomplished its goal. It has created more problems in divorce proceedings than it has resolved. The statutory formula replaced the prior system of determining temporary spousal maintenance which was based on the Court exercising its discretion after assessing the financial circumstances and the needs of the parties.

The intent of temporary spousal maintenance is to allow the non-moneyed spouse to maintain his or her standard of living that existed prior to the initiation of the divorce lawsuit. The legislature took action to draft a temporary maintenance statute because of the feeling that there was a lack of consistency and predictability by allowing Judges to determine each case on a case by case basis.

Bankrupting The Moneyed Spouse

In to in many cases the writer of this article has been involved with, the application of the temporary maintenance statute has financially ruined the moneyed spouse. This statute unfortunately over emphasizes the wages of the moneyed spouse. It does not take into consideration the financial needs of the parties and their actual living expenses. The formula does not take into consideration the payments for household expenses such as mortgage payments, electric payments, fuel oil, payments for internet service, telephone charges, maintenance of the property, child support and attorney’s fees during the course of litigation. The approach utilized by this statute does not accurately deal with the specific financial obligations and needs of the parties.

Rigid Formula Must Go!

The new maintenance statue needs to be revised. It is a rigid formula that denies the Court from having the necessary discretion to deal with the unique financial circumstances litigants are exposed to. In some situations spouses are receiving interim spousal maintenance awards in cases and at the conclusion, they receive no spousal maintenance. How can this be fair?maintenance and custody attorneys

Extreme Hardship The Standard To Suspend Maintenance (Alimony) Payments

marriage and divorce attorneyJustice Dollinger, sitting in the Supreme Court in Monroe County, recently suspended a man’s spousal maintenance (alimony) because he found it would be “an extreme hardship” for him to continue to make these payments. Justice Dollinger stated in his opinion in the matter of Platt v. Platt, 2012 N.Y. Slip Op. 51583(U), “[w]e debate ‘extreme politics.’ Even the New York songster, Billy Joel, wondered – ‘darling I don’t know why I go to extremes.” Judge Dollinger, in his opinion, stated the legislature had not established a specific standard for “extreme hardship.” The Judge wrote “what constitutes an extreme hardship is a fact-specific inquiry that depends on the overall financial condition of the moving party.”

In the matter of Platt v. Platt, the judge found the husband was unemployed. He lived below the poverty level. In this case the wife also lived at the poverty level. Both the husband and wife were enduring extreme hardship. The Judge’s opinion stated “this Court cannot stretch the family resources beyond the dollar and cents limitation, when both parties are facing a new, but unwanted, life below the poverty line.”

Separation Agreement

Christine Platt and William Platt had entered into a separation agreement in 2011. Under the terms of the agreement Mr. Platt was to pay spousal maintenance of $700 per month. In February of 2015 this increased to $1000 per month when their daughter graduated college. Unfortunately Mr. Platt lost his job. At that point the Judge reduced his monthly spousal payments to $400 per month. Eventually, Mr. Platt’s unemployment benefits expired. At that time Mr. Platt moved to have his spousal maintenance obligations suspended due to “extreme hardship” pursuant to New York State Domestic Relations Law section 236. His wife Christine Platt opposed the motion.

Justice Dolinger, in his decision, suspended the spousal maintenance payments. His decision stated the suspension was temporary. He wrote that the maintenance would resume “in an amount that the Court deems proper upon the husband obtaining employment or receiving other benefits from another source including gifts from his parents.”

About The Author

Elliot S. Schlissel, Esq. is an attorney practicing matrimonial and family law in the metropolitan New York area for more than 34 years.matrimonial assistance through divorce

‘Genius’ Not Taken Into Account in Equitable Distribution

divorce-150x150Judge Dregger, sitting in Manhattan Supreme Court, denied a very successful private equity firm executive from presenting evidence in a divorce case that he had “unique personality traits” prior to the marriage that allowed him to accumulate 450 million dollars in business assets during the thirty year term of his marriage. Justice Dregger, in her decision, stated that “in purporting to prove that the success of the business is solely attributable to his innate genius, the expert opinion evidence offered by the husband provides no assistance to the finder of fact in fashioning an equitable distribution of the estate based on the contributions of each party to the marital partnership.” Mr. and Mrs. Silverman were married for more than thirty years prior to a divorce lawsuit being brought. They had married in January of 1978.

Innate Talents

Mr. Silverman claimed that he had unique innate talents that allowed him to be successful in this business. Mr. Silverman argued that his talents in business should be considered in determining equitable distribution. Justice Dregger stated that intangible assets may be considered as marital property, referring to the enhanced earning capacity of an investment banker, someone with celebrity status or someone involved in a political career. However, she stated the question is “to what degree the spouse not possessed of the intangible asset was entitled to a distributive aware arising from the enhanced earning capacity of the career developed during the marriage and not the degree of fame, skill or political acumen possessed at the time of the marriage.”

Henry Silverman is out of luck. The 450 million dollars he amassed is subject to equitable distribution with his wife. I’m sure he’ll end up with enough money to prevent himself from starving.

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 thirty-three 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.

Halle Berry’s Custody Issues

Halle Berry was married to Gabriel Aubry. They have a daughter named Nahia. Halle Berry is an oscar winning actress. She has been engaged in a custody fight over her two year old daughter Nahia.

Halle has dropped out of a broadway play due to custody issues. She had been scheduled to make her broadway debut in September. The play was called the Mountain Top. Samuel L. Jackson is portraying Dr. Martin Luther King in the play. Halle was to portray a maid at the Lorraine Hotel in Memphis where King was the night before he was shot.

Nasty Custody Battle

Halle has been involved in a nasty custody battle with her ex partner Gabriel Aubry. The couple initially split up in 2010.

Halle Pulls Out of Movie Entitled New Year’s Eve

Halle Berry has also dropped out of a movie entitled New Year’s Eve. She blamed her pending custody litigation involving her daughter for her dropping out of this film.

She has recently claimed she has been unable to amicably resolve her custody issues with the child’s father Gabriel. A representative for Halle Berry has stated “she has serious concerns for her daughter’s well being while in the care of her father for any extended period of time and is prepared to take all necessary steps to protect her.” Is the real issue that Nahia’s father Gabriel Aubry is the parent who spends the majority of the time meeting the child’s needs while Halle pursues her career. It appears that Gabriel spends a majority of the time taking care of this child, while Halle is off making movies and appearing in other productions.

Father’s Rights Lawyers in New York

Children have two parents, a father and a mother. Under New York Law they have equal rights to custody and visitation. We are father’s rights lawyers. We litigate issues on behalf of fathers involving divorce, orders of protection, child custody, child visitation, child support, spousal maintenance (alimony), child abuse defense, paternity, no fault divorce and issues involving attorneys fees in divorces. We also assist our clients in obtaining annulments and dealing with parental relocation problems. We negotiate separation agreements, pre nuptial and post nuptial agreements for our clients. We represent fathers in cases in Nassau County, Kings County, Queens County and the rest of the Metropolitan New York area. Call for a free consultation.

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.

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