Post Nuptial Agreement Set Aside: Even Though Husband’s Duress Claim Was Not Proven

A childs hand in fathers hand

A husband brought a proceeding to set aside a post nuptial agreement before Justice Jeffrey Goodstein in a Supreme Court divorce part in Nassau County, New York. He claimed the agreement should be set aside because he was fraudulently induced to execute it. He also argued he signed the agreement under duress and the terms of the agreement were unconscionable. He alleged in his moving papers that at the date the agreement was executed he was suffering from depression. In addition, his wife exerted duress upon him which caused him to sign this one-sided document. He also argued the terms of the agreement were overreaching and unconscionable. His moving papers alleged that he received only 12.3% of the marital assets. The wife who had an annual income of $2 million received 87.7% of all marital assets. He claimed this was so unfair that the agreement should be considered unconscionable and therefore set aside.

Duress Not Proven

Judge Goodstein found the husband’s claims of duress were not proven. He failed to submit substantial evidence to show his mental state was weakened to the point that he did not have free will to avoid executing the agreement. Judge Goodstein therefore denied setting aside the post nuptial agreement based on the husband’s duress claim.

Agreement Set Aside Anyway

Attorney Elliot Schlissel

However, Judge Goodstein found the wife out earned the husband as a practicing physician. He found she retained her medical practice and was not providing the husband with spousal maintenance. He set aside the agreement because the financial terms were so one-sided. Judge Goodstein rendered a decision regarding the agreement setting aside all of its financial terms.

Wife’s Application to Modify Separation Agreement to Her Benefit Is Dismissed

Father-with-son

Supreme Court Justice Frank Nervo sitting in a divorce part in New York County recently had before him a case where a wife brought an application to modify or set aside a separation agreement she had entered into with her husband. She wanted the court to rescind the portion of the separation agreement the parties had entered into which dealt with the transfer of the parties’ marital home. She claimed she was not able to carry out her financial obligations under the separation agreement. The reason for her inability to fulfill her obligations was she could not obtain financing needed to pay a distributive award to the husband. She argued in her pleadings that if she was unable to make the payment he did not have to transfer the marital residence to her.

She claimed the wording of the separation agreement was a mistake, and she was defrauded. The terms of the separation agreement were therefore impossible for her to carry out. Judge Nervo did not see it that way. He dismissed wife’s lawsuit. He found her allegations of a mutual mistake could not be proven. The only mistake was made by her. He also found there were no fraudulent misrepresentations. Judge Nervo ruled the wife’s claim that it was an impossibility for her to perform the terms of the separation agreement regarding the payment to the husband for the house were not proven. The husband’s application to dismiss her complaint was granted.

Attorney Elliot Schlissel

Elliot S. Schlissel and his associates are father’s rights attorneys representing fathers throughout the Metropolitan New York area in divorces and family court cases. His law firm has been helping fathers with legal issues involving child custody, child support and visitation problems for more than three decades.

Father Obtains Court Order Reducing His Child Support

Father Holding Child

A father brought a child support modification proceeding. A hearing was brought before a support magistrate and the father’s child support obligations were modified to $283.00 per week. The father objected to this finding and appealed the decision to a Family Court Judge. The father asked that his child support be reduced from $283.00 a week to $167.87 per week.

The Support Magistrate is Overruled

Judge Stephen Aronson sitting in the Family Court part in Ontario County New York agreed with the father. Judge Aronson ruled that the father’s prior modification petition was denied on the basis that his income reduction was self-imposed. Judge Aronson found although the father earned $50,000.00 in 2013, this was the exception to the rule. Judge Aronson also found the father did not voluntarily quit his job. Unfortunately, he was laid off because there was no longer a need for his position by his employer. Judge Aronson therefor overruled the support obligation to $166.77 per week.

Conclusion

In the Family Court in the State of New York, Support Magistrates deal with issues involving child support. Often Support Magistrates are very busy and have limited amounts of time to conduct hearings with regard to the appropriate amount of child support. This can result in incorrect calculations as to what a father’s financial obligations for child support are. In these situations, a type of appeal called “Objections to the Support Magistrate’s ruling” can be filed. In this case, when the Objections were filed, the Family Court judge carefully reviewed the situation and determined the father’s child support obligation was incorrectly calculated and therefore they were reduced.

Attorney Elliot Schlissel

Elliot S. Schlissel is a father’s rights attorney. Elliot and his associates have more than 100 years of combined experience representing fathers in child support and child custody legal cases.

Video Blog: Father Challenges Decision Imputing Income to Him

Father Awarded Sole Legal and Physical Custody. Mother Given Supervised Visitation Only

A father on hammock with his son

In a case before Justice Linda Christopher sitting in the Supreme Court in Westchester County, Judge Christopher dealt with a matter that shocked her consciousness. In this case the mother had left and hidden the parties’ children. The father was given temporary legal and physical custody of the children. The father brought an action seeking permanent legal and physical custody of the children. In his moving papers he claimed the mother kidnapped the children. He further claimed the mother attempted to suffocate the children. He claimed the mother tried to strangle her son. He claimed the mother had denied who she was for years.

Justice Christopher conducted a hearing on this matter. Testimony was submitted that shocked the Hearing conducted of the court. She found that the mother was unbelievable. The judge found the father was a credible individual capable of taking care of the children. Judge Christopher found there were instances of child abuse by the mother with regard to the parties’ children. She ruled that the mother was a potentially dangerous person to be around the children. She found the mother should only have supervised visitation with the children.

Father Given Sole Legal and Physical Custody

Attorney Elliot Schlissel

She awarded the father sole legal and physical custody of the children. She found this was in the children’s best interests. The mother was permitted to receive copies of school and health records; however she barred the mother from having information concerning the children’s schedule and details of the children’s’ daily life. She felt the mother posed a danger to the children.

Father’s Challenge to Imputed Income Granted

Father holding child

In a case before Judge Machelle Sweeting sitting in the Family Court of New York County, a father brought objections (an appeal) to a support magistrate’s finding he had imputed income. The father challenged the support magistrate’s decision. The mother had a petition for an upward modification of child support. At the time the petition was filed the father was unemployed. However the support magistrate found he had voluntarily left his position. The court therefore imputed the income to him that he would have received had he not left his job. The father sought to present testimony he did not voluntarily leave his job. However he was not allowed to present this testimony with regard to how he came to be unemployed.

The Family Court Judge’s Decision

Family Court Judge Machelle Sweeting found that there was no evidence submitted before the support magistrate that the father had taken action to intentionally reduce his earnings by leaving his job. Judge Sweeting found there must be a factual basis on the record for imputing income to a father. She stated there must be a determination made that the parent intentionally reduced earnings for the purpose of avoiding child support obligations. She held this can be imputed based on a litigant’s employment history and/or educational background. She found in this case a hearing would need to be held as to whether the father intentionally reduced his earnings and for recalculation, should it be reasonable based on the outcome of this hearing.

Conclusion

Attorney Elliot Schlissel

If you appear before a Support Magistrate and receive an unfair or incorrect decision your remedy is to bring an appeal.

Court Refuses to Deviate From Child Support Standards Act Requirement

Court Refuses to Deviate From Child Support Standards Act Requirement

A mother had filed a petition for child support. On the basis of this filing a hearing was held before a support magistrate. The magistrate initially found the father’s bi-weekly child support obligations under the Child Support Standards Act was $396.00. It was then reduced by the support magistrate to $270.00 bi-weekly. The support magistrate rendered a decision which stated that applying the Child Support Standards Act was not appropriate in this case. The basis of the magistrate’s decision was that the child spent between 35% and 40% of the time with their father. The support magistrate felt that this constituted significant time sufficient to justify a deviation from the Child Support Standards Act.

Mother Files Objection (appealed) Support Magistrate’s Decision

The mother in her appeal argued there was a significant difference between the parties’ financial resources. The Family Court Judge reviewing this matter agreed with the mother’s arguments. The Family Court Judge made new findings requiring the father to make child support payments of $436.00 bi-weekly. The Family Court Judge stated in his custody cases the amount of time a child spends with the non-custodial parent should not be the driving force for a deviation with regard to the child support payments. The court held in absence of compelling factors, a deviation in child support from the presumably correct amount was not warranted in this case.

Conclusion

Attorney Elliot Schlissel

In most shared custody or joint custody cases the non-residential custodial parent has to pay the full amount of child support to the custodial parent. This is true even if each of the parties spend similar amounts of time with the child or children. The father should be careful when negotiating these agreements. However, in shared custody cases if a court is unsure of who should be paying child support to the other parent the courts will generally force the parent who has greater income resources to pay child support to the other parent.

Elliot S. Schlissel is a father’s rights lawyer representing fathers throughout the Metropolitan New York area for almost more than 35 years.

15 Mile Radius Clause Found Valid and Enforceable

A child holding it's parents hand

In a case before Justice Richard Dollinger in Monroe County New York a father sought relief from the 15 mile radius clause that was in a separation agreement. The agreement stated the father needed to live within 15 miles of the mother’s residence as part of a parenting plan. The father brought an action requesting relief from the 15 mile provision. He did not argue that the agreement was unfair or inequitable. His argument was that he had a new girlfriend and she resided more than 15 miles from the mother’s residence. Judge Dollinger ruled this could not be considered an unanticipated situation. Dollinger went on to hold that the father’s new residence was his own choice. There was no evidence presented of extreme financial hardship related to this 15 mile radius clause.

No penalty Clause in the Agreement

The father argued that there was no penalty provision in this settlement agreement. He also argued there was no deadline for him to change his residence back to within the 15 mile radius. However Judge Dollinger ruled in the absence of a contractual deadline the court would impose a “reasonable time” deadline with regard to the father’s compliance with the terms of this agreement. He therefore gave the father three (3) months from the date their child would start kindergarten to comply with the 15 mile radius requirement. Judge Dollinger felt a three (3) month compliance period was a reasonable period of time for the father to become in compliance with the terms of this agreement. In the end Judge Dollinger refused to relieve father of his obligation to live within 15 miles of the mother’s residence.

Conclusion

Attorney Elliot Schlissel

Many settlement agreements and/or separation agreements have radius clauses. These clauses generally prevent the custodial parent from moving more than 15 to 25 miles from the former marital residence. Once these clauses are in an agreement it is difficult to get around them.

SUCCESSFUL BLACK MEN DON’T MARRY

Succesful black men don't marry

Today many successful African American men refuse to get married. The general reason they refuse to get married is the fear of a divorce and the huge financial negative implications of getting divorced. Many professional athletes, actors and successful businessmen are avoiding marriage. Jamie Fox and Sean Combes are two successful black entrepreneurs who excelled in a variety of different enterprises and have chosen not to marry. When a successful man who is not married has a child he is obligated to pay child support. However, in community property States such as California should he divorce he would lose half of his assets. In States like New York that have equitable distribution laws he would be responsible for distributing a portion of the assets that accumulated during the course of his marriage as well as potentially paying spousal maintenance in addition to child support. It seems a greater percentage of successful black men avoid marriage than men from other racial groups. That is not to say all successful black men do not marry.

CONCLUSION

Attorney Elliot Schlissel

Successful black men seem to preserve their wealth and avoid being shook down in divorces for money their successes bought them by avoiding marriage, having children out of wedlock and moving on when the situation is played out.

Dividing Assets in the Divorce

Man sitting with child

All assets the married parties have are not subject to equitable distribution in divorce cases in New York. All assets accumulated prior to the marriage and maintained separately such as 401k plans and pension plans are not subject to equitable distribution in divorce proceedings. Assets accumulated prior to marriage are called “separate property”. In cases where there are 401k assets or pension assets that accumulated prior to the divorce marriage it may be necessary to hire an actuarial firm to determine which portion of the assets are “separate property” and which are “marital property”.

Qualified Domestic Relations Order (QDROs)

Qualified domestic relations orders (QDROS) are submitted to the Supreme Court judge in divorce proceedings. These orders separate the marital assets from the non marital assets.  The non marital assets can be separate property of either of the spouses.  Specialized actuarial companies are usually retained by the attorneys to draft these complicated orders.

Social Security Benefits and Divorces

The issue of Social Security benefits are not specifically mentioned in divorce proceedings. However, survivor Social Security benefits can be a significant source of income for individuals in divorce cases. If the parties were married for a minimum of ten years each individual is entitled to a benefit 50% of the ex-spouses anticipated Social Security payments.

Spouse’s Social Security Benefits

New York father's rights lawyer Elliot Schlissel

Many people feel that they will be receiving the benefits from their own earnings and therefore they are not entitled to a portion of their spouses Social Security benefits.  However, should 50% of your ex-spouses Social Security benefits be greater than your anticipated Social Security Benefits, you’re entitled to the higher of the two.  An example of this is, suppose your Social Security benefits are $500.00 a month and your former spouse’s benefits are $2000.00 per month. Half of those benefits would be $1000.00 per month. You therefore would be entitled to an additional $500.00 a month from your spouse’s Social Security benefits. If you have a situation similar to this, you should not leave this money unclaimed. The government will survive even if you receive your full Social Security benefits!