Do You Need a Prenuptial Agreement? – Part II

March 18, 2014 By

father's rights attorneyThe following is a list of a variety of circumstances in which prenuptial agreements may be appropriate:

 

1.     When either of the parties to the marriage is a lawyer, doctor, has a professional degree or has an     interest in a business.

2.     When either of the parties has assets that he or she seeks to maintain as separate property and not become part of the martial estate.

3.     When one of the parties to the marriage has significant debts. The other party may want to avoid being drawn into these financial obligations.

4.     When either of the parties have children from a prior relationship or previous marriage.

5.     When the present income between the parties is significantly different or one of the parties to the marriage has much greater earning potential than the other.

6.     When one of the parties anticipates his or her future financial circumstances will be changed related to future events.

7.     When there is a significant age disparity between the parties to the marriage.

The Prenuptial Agreement – The Minimum Requirements

There are certain minimum requirements for prenuptial agreements that should be met. To start with, it should not be done at the last minute. The parties should have a reasonable opportunity to meet with each of their attorneys to discuss this agreement before it is executed. The agreement must be in writing executed by each of the parties to the agreement prior to the marriage. The agreement should contain an acknowledgment at the end and the parties’ signatures should be notarized. The agreement must be fair and reasonable. This is particularly important in cases where the parties have significantly different financial circumstances to show that the more affluent party did not take advantage of the lesser affluent party in the prenuptial agreement. If a judge feels that a prenuptial agreement is unconscionable, which means extremely unfair, they will set the prenuptial agreement aside.

Some prenuptial agreements contain a clause in it that terminates the agreement after a period of years. This is inserted in prenuptial agreements to take into consideration when marriages become longer term marriages the parties may no longer desire the agreement to remain in effect.

Conclusion

helping husbandsPrenuptial agreements simplify divorces, protect financial interests of children from prior relationships and can be utilized to protect property and income. They also have the effect of simplifying divorce litigation.

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Do You Need a Prenuptial Agreement? – Part I

March 11, 2014 By

fathers rights attorneysIf marriages are supposed to be entered into based on true love then what place does a prenuptial agreement have in the marriage? Raising the issue of prenuptial agreement can create a ticklish situation. However, when the two people who are marrying have significantly different financial circumstances a prenuptial agreement may be appropriate. Prenuptial agreements also should be considered to be entered into when the marriage is between individuals of different ages.

In cases where there were children from prior relationships, one of the parties to the marriage may seek to leave a portion of his or her assets to those children in a will. The prenuptial agreement also may be necessary to waive spousal rights of election (the spouse’s right to inherit from the other spouse’s estate).

High Divorce Rates

The divorce rates in New York are close to 50%. This means it is almost even money a marriage will fail. When the parties have a prenuptial agreement it helps simplify the divorce proceedings. A prenuptial agreement in this situation can save both of the parties to the marriage expenses related to divorce litigation and reduce the stress and aggravation related to the divorce.

Prenuptial Agreements and Financial Issues

support for husbands in divorceSometimes prenuptial agreements are designed to deal with financial arrangements between the parties during the course of their marriage. Prenuptial agreements can set aside property as separate property which is not to be included in either the marital estate upon death of one of the parties to the marriage or in a divorce proceeding. Prenuptial agreements can also deal with issues of spousal maintenance (alimony) should the parties get divorced.

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Father’s Consent Needed For His Children To Be Adopted

March 7, 2014 By

Keith Jay was the biological father of twin boys. The Department of Social Services brought a proceeding against the boys’ mother. This proceeding sought to terminate the mother’s parental rights and allow the twin boys to be adopted.

Keith Jay intervened in the proceeding. He requested a court order stating that since he was the father his consent was required before his children could be adopted. The Department of Social Services took the position they were only required to provide notice to Keith concerning the adoption of his children because Keith had fallen behind in his child support payments to his children. Keith was able to show the court he had maintained regular contact with his sons. In response to the Department of Social Services contention that he had not paid his child support payments, he provided documentation to the court his tax refund was seized to pay for his child support obligations.

Seized Tax Refunds Satisfy Child Support Obligations

Judge Ellen Greenberg, sitting in a Family Court Part in Nassau County, held the tax refunds that were seized, which belonged to Keith, did satisfy his financial obligations to make child support payments for his children. Judge Greenberg took the position that she saw no distinction between involuntary payments of child support through a wage garnishment order or the seizing of tax refund checks and the voluntary payments of child support by a father. She therefore concluded even though Keith had never shown any interest in becoming the custodial parent of his children he is deemed to be the father of the children and his consent would be required before the children could be adopted.

custody assistance for fathersElliot Schlissel is a father’s rights lawyer representing fathers throughout the Metropolitan New York area with regard to child custody and child visitation proceedings.

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Father Granted Physical and Legal Custody of Daughter

February 21, 2014 By

father's rights attorneyJudge Michelle Schauer sitting in the Family Court in Westchester County recently dealt with a difficult custody case. The father and mother of the child, Madison, were not married. Both of them had submitted applications to the court for sole legal and physical custody of their daughter. A custody agreement was worked out. The agreement had a parenting plan in it. Shortly after the agreement was executed, the father brought a proceeding in the Family Court of Westchester County before Judge Schauer claiming the mother had violated the terms of the parenting plan contained in the custody settlement agreement.

Mother’s Behavior Concerning Child Questioned by Court

Father alleged that the child’s day care provider had raised serious concerns about the mother’s behavior at the time her diaper was being changed. An investigation was undertaken by the Administration for Children’s Services. The investigation determined that the allegations regarding sexual abuse of the child were unfounded. In spite of this determination, Judge Michelle Schauer granted the father temporary custody. The mother had argued that there was no change in circumstances involving the child, Madison, that would suggest that a temporary change in custody was needed. However, during the course of the proceedings, the mother’s older daughter revealed to a teacher that she had been molested. An issue was presented to the court that because of her being molested she might become a perpetrator who would sexually molest Madison. The court felt the mother had exhibited a complete inability to recognize and deal with her older daughter’s serious emotional problems. The judge stated in her decision this was a significant factor in making a determination it was in Madison’s best interests to give custody to the father. The court specifically found the father was the more fit parent. He was granted sole legal and physical custody of Madison. The mother was granted visitation with the child.

custody help for fathers

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Husband Allowed to Have Wife Removed from Residence

February 18, 2014 By

father's rights lawyerDuring a divorce lawsuit, a husband provided the court with documentation the parties’ home was moving towards foreclosure. The court appointed the husband as a receiver and gave him authority to list the home with real estate brokers and conduct the sale of the home.

The wife did not accept the court’s initial ruling and brought a motion to renew or reargue the court’s prior decision concerning the husband being entitled to sell the home to avoid it being sold in foreclosure. The wife claimed in her application to the court he had failed to abide by a court order to make timely payments of the mortgage obligation on the home. She claimed that there were funds available for the husband to pay the mortgage in his 401(k) plan.

Home Handicapped Accessible

The wife argued extensively that their home was handicapped accessible. She claimed she needed to live in this handicapped accessible home and the judge should allow her to continue to live there.

The husband asked the court to keep him as the receiver of the home and allow him to have his wife removed from the home to facilitate his ability to list the home for sale and have the home sold.

Wife Interfered in the Sale of the Home

Justice John Bivona sitting in the Supreme Court Divorce Part in Suffolk County granted the husband’s application. The judge found that his wife had been interfering in the sale of the marital home. As a result of her interference, the parties were suffering economic waste of a valuable marital asset.

Conclusion

helping fathers during trialThe judge in this case felt it was in the parties’ best interests to maximize the return on the sale of the marital residence by having it sold privately instead of being sold in foreclosure where it would go for less than fair market value.

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Husband Delays Divorce Proceedings: Wife Awarded Temporary Attorneys’ Fees

February 13, 2014 By

father's rights lawyersJudge Jeffrey Sunshine sitting in a Divorce Part in the Supreme Court of Kings County recently awarded a wife temporary attorneys’ fees in a pending divorce case due to the husband delaying the case from moving forward.

The wife had received an order in a prior application directing the husband to pay spousal maintenance (alimony) and child support to wife. Husband brought a motion to reargue this temporary spousal maintenance and child support order. Wife cross moved and claimed husband was simply delaying this case from moving forward causing her unnecessary attorneys’ fees and that the husband should be forced to pay her unnecessary additional attorneys’ fees.

Wife Claimed to be the Non-Monied Spouse

The wife argued in her court papers she was the non-monied spouse. She claimed the husband had “hundreds of thousands of dollars in unrecorded income” from his business. The husband’s position was the wife was the monied spouse. He claimed she made $90,000 a year while he earned significantly less money. He presented his tax return to back these allegations.

Judge Sunshine noted the husband failed to provide information to explain why a number of accounts with significant assets in them did not appear on his net worth statement. Judge Sunshine went on to say in his decision the husband did not reveal “forgotten” accounts until his wife, after extensive discovery, was able to document the existence of these accounts and the funds in them. The judge’s decision stated that the husband was unwilling to reveal his true financial circumstances.

The failure of the husband to provide the wife with a detailed accounting of his financial circumstances cost her additional attorneys’ fees due to the extensive discovery she had been forced to undertake. As a result, the judge awarded the wife $40,000 in temporary attorneys’ fees.

Conclusion

divorce counsel for husbands and fathersHonesty is the best policy. If a judge finds that you are being less than honest during divorce litigation, he will punish you.

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Alimony for Men

February 10, 2014 By

father's rights lawyerIt is becoming more common for men to seek alimony, which is called spousal maintenance, in New York from their ex-wives. In 1979, the United States Supreme Court ruled in the case of Orr v. Orr there should be no gender bias with regard to courts awarding men alimony (spousal maintenance).

In 2010, there were 400,000 people in America receiving spousal maintenance. Only 3% of those were men receiving spousal maintenance from their ex-wives. There has been a significant increase recently in the number of men seeking spousal maintenance. It is becoming more common for women to become the person supporting their family.

There are more and more stay at home fathers in the United States than there ever were before. There has been a significant change in social mores which makes it more acceptable for men to ask for spousal maintenance from their spouses. There was a time that a man’s machismo would prevent him from asking a court to have his ex-wife help support him. However, in recent years, the difficulties men have been having in the employment market have caused them to be more realistic with regard to thinking about how they will live after their divorce.

Spousal Maintenance

There are two significant issues with regard to receiving spousal maintenance. The first issue is how much should the man ask for per month. This usually relates to what his financial needs are and the level of income his spouse has. The second significant issue is the duration of the spousal maintenance. How long, under the circumstances of the parties’ marriage, should he receive spousal maintenance for? The spousal maintenance may be rehabilitative, meaning it may be designed to be paid until such time as the man can find a job and get back on his feet again.

Conclusion

Spousal maintenance for men who need it from their wives is a step in the right direction. Men have rights to receive spousal maintenance just like women.

assisting fathers in pursuing their rightsElliot S. Schlissel is a father’s rights lawyer representing men throughout the New York Metropolitan area regarding divorces and Family Court proceedings.

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Present Income Rule Applied Regarding Spousal Maintenance Payments

January 21, 2014 By

father's rights attorneyIn a case of first impression, Justice Lawrence Ecker sitting in the Supreme Court Matrimonial Part in Westchester County dealt with the issue as to whether the present income rule which is applicable in child support proceedings, can be utilized in determining the amount of spousal maintenance due from one party to a marriage to the other. In this case, the wife sought temporary spousal maintenance from the husband in the amount of $17,000 per month. Justice Ecker took note the husband’s 2012 tax return showed income of $820,000. However, he obtained a new position in 2013 because he lost his prior job through no fault of his own. His new job paid him approximately one-third of the wages he earned from his previous employment. The question presented to the court was whether it should utilize the income the husband received on his 2012 tax return, or use his present income in 2013 to determine the amount of his financial obligation for spousal maintenance to his wife.

Justice Ecker analyzed the situation in the context of a child support proceeding. The present income rule is appropriate to determine child support payments. Justice Ecker reached the conclusion he could utilize the present income standard for child support payments to determine the husband’s obligation for spousal maintenance (alimony). Utilizing this theory, he found the husband’s income in 2013 would be $250,000. The wife received no income during that year. He therefore concluded that the husband should pay the wife spousal maintenance of $5,737 and not the $17,000 she was requesting.

Conclusion

This is a huge victory for fathers. In the past, fathers were punished for being successful. The theory that no good deed goes unpunished was applicable to spousal maintenance awards. Fathers who had had high paying jobs and were then downsized were forced to pay spousal maintenance based on what they used to earn, not what they currently earned. This decision is a great step forward by this court in arriving at a fair and reasonable amount of spousal maintenance to be paid by the father in this case.

helping husbandsElliot Schlissel is a father’s rights lawyer, representing fathers on child support and spousal maintenance cases.

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Social Media Websites and Divorce Proceedings

January 16, 2014 By

father's rights lawyersRecently questions have arisen as to whether social media websites are having an impact on increasing the divorce rates in the United States. There are many social media websites, such as MySpace, Twitter, Facebook, Flickr, Photobucket, and numerous other ones. Increasingly, lawyers and investigators are obtaining information from social media websites with regard to spouses carrying on elicit affairs and romances during the course of their marriage. Access to an individual’s social media websites can provide all types of information concerning their social activities. In a recent survey of attorneys who are members of the American Academy of Matrimonial Lawyers, it was found that there has been a significant increase in number of divorce cases which have utilized evidence obtained from material posted on social media websites by parties to the litigation.

Private Investigators Use Social Media Websites

In the old days, it was necessary to hire a private investigator to investigate the private life of a spouse who may have been committing adultery. Today, investigators instead of going into the field with a camera and/or snooping around motel rooms search through photo files, comments on walls, information on the individual’s profile pages, and all types of other information gleamed from social media websites. Photos taken from social media websites are increasingly finding their ways into court proceedings.

It is said a photo is worth a thousand words. Unfortunately, the wrong photo can be the basis of a divorce proceeding. In addition, photos have been utilized by criminal attorneys in driving while intoxicated cases to show dependence on alcohol or inappropriate drinking habits. Inappropriate behavior demonstrated by material taken from a social media website can be used in divorce proceedings to document an individual would be a poor choice to be the custodial parent. This can be an effective technique to obtain evidence in child custody and child support proceedings.

In addition to the utilization of photographs in court proceedings, incriminating and/or inappropriate photographs are also used by attorneys in negotiating out of court settlements in divorce and family court litigation. There are many cases of compromising photographs on websites creating pressure in negotiations to force settlements in divorce cases.

Social Media Website Used for Flirting

In 2008, a study was done entitled “The Pew Study of Internet and American Life.” One of the interesting results of this study was it was found that 20% of all adults interviewed in the study who maintained online social media websites stated they had flirted with others on these websites.
Jason Krafsky has written a book called Facebook and Your Marriage. In his book, he claims that spouses need to set limits on what they utilized social media websites for. He recommends in his book spouses share passwords and user names. He suggests this so they can each check what each other is doing on social media websites. He specifically recommends spouses do not maintain communication on social media websites with ex-lovers. He claims this can lead to misunderstandings and have a negative effect on the marital relationships.

finding evidence to help husbands in divorceElliot S. Schlissel is a father’s rights lawyer practicing in the Metropolitan New York area. His office represents fathers on issues concerning child custody, child support, spousal maintenance and the division of property in divorce proceedings.

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Stay at Home Husbands

January 14, 2014 By

father's rights lawyerThere was a recent article in the New York Times, Sunday Edition, which stated super achieving moms on Wall Street have house husbands. This article examined the phenomenon of stay at home husbands. The article stated there has been a thousand percent increase since 1980 in the number of women working in finance on Wall Street who have stay at home spouses. The article pointed out the stay at home spouses allowed the women to be successful without having the responsibility of maintaining their household and raising their children.

It is not unusual for successful women who work in large law firms to rely on a man to help take care of the children, deal with the family’s meals, and supervise the household chores. It is common for partners in large New York City law firms to either be single or to be married to someone who relieves them of their responsibilities in the home.

Successful women are sometimes embarrassed to admit their significant others are raising their children and maintaining their home. There are a variety of reasons for this. They are concerned in the event of a break up of the relationship their significant other will get custody of the children.

Changing Gender Stereotypes

When a woman is the primary breadwinner, and the man maintains the home and takes care of the children, there is a change in gender roles. In some of these cases, men are reluctant to acknowledge they have exchanged the roles played by them and their female companion. However, in an economy where jobs are hard to find, the house husband should be grateful he has a very successful wife, or significant other, earning enough money to pay all of the family’s bills and to maintain the family at a reasonable standard of living.

Conclusion

Family life requires sacrifices. If one spouse is the primary breadwinner, it is not unreasonable for the other spouse to maintain the household and help raise the children.

Elliot S. Schlissel is a father’s rights lawyer. He has been representing fathers in divorces and helping fathers with custody issueschild custody cases and child support cases for more than 45 years.

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