What You Need To Know About Prenuptial Agreements

April 10, 2014 By

Prenuptial agreements, which are sometimes referred to as antenuptial agreements, are designed to set forth in a written contract what will happen concerning the division of property and spousal support payments in the event of divorce. Prenuptial agreements also deal with the rights each spouse has to the other spouse’s estate in the event of death.

One thing that is certain concerning prenuptial agreements is they have nothing to do with the romance that leads up to marriage. Sometimes bringing up a discussion of a prenuptial agreement can have the impact of stopping the marriage from moving forward dead in its tracks.

Prenuptial Agreements and Divorce

Prenuptial agreements can help the individuals who enter into a marriage avoid, in the event of a breakdown of the marital relationship, a nasty, difficult, expensive divorce. Prenuptial agreements should be drafted a significant period of time before the date of marriage. A common problem clients face when they call a lawyer a week or so before they plan on getting married is that it usually takes weeks to work out the details, negotiations, and terminology in a prenuptial agreement. Parties who seek to have a prenuptial agreement drafted by attorneys should consider doing it three to six months in advance of their getting married.

Prenuptial Agreements and Disclosure

One of the first steps necessary before entering into a prenuptial agreement is the disclosure as to what each party’s assets are and what each party’s incomes are. Individuals entering into a prenuptial agreement must make a knowing, intelligent decision to enter into these agreements. An individual cannot make a reasonable, intelligent decision if they don’t know what the other party’s assets and income are at the time of the execution of the agreement.

Prenuptial agreements should not be thought of as a document prepared in the anticipation of a divorce. Prenuptial agreements simply lay out each party’s rights and obligations in the event of a divorce or death of one of the spouses. Unfortunately, the divorce rates throughout the United States are very high. In many areas, the divorce rate runs close to 50%. Therefore, putting each of the party’s cards on the table before they enter into the marriage and having an agreement showing what their cards will be when they leave the marriage involves planning for the possibility of a problem while the parties hope the problem never occurs.

Prenuptial Agreements and Obligations to Support Children

Prenuptial agreements generally do not deal with the financial obligations each of the parties has to support children who are born after the execution of the agreement. It is generally against public policy for prenuptial agreements to interfere with each of the party’s financial obligations to children born during the course of the marriage.

There are a variety of pros and cons concerning prenuptial agreements. Individuals going into their first marriage often have a hesitancy to be involved in this type of planning. However, individuals who have been married and divorced, usually want to have prenuptial agreements in their second or third marriages.

Elliot Schlissel is a divorce lawyer with more than 45 years of experience representing individuals in divorce actions. He has extensive experience in protecting father’s rights and helping fathers obtain custody and/or visitation with their children. The office offers free consultations and its phones are monitored seven days a week to deal with emergency situations.

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Husband Awarded 50% Equitable Distribution of Family’s Assets

April 8, 2014 By

In a recent case in Queens County, a wife had brought a divorce case against her husband. She was successful in the divorce proceeding and the husband appealed. The Appellate Division Second Department (an appeals court) reversed a decision of the Judicial Hearing Officer. The case was sent back for a retrial on the issue of husband’s contributions to the marital estate related to his request for equitable distribution of the marital assets.

Appeals Court Decision

The Appellate Division in its decision had said the Judicial Hearing Officer’s decision was “patently unfair” to the husband. The wife’s position in the second trial was basically the same as in the first. She presented legal argument her husband should not receive equitable distribution of the marital assets. She claimed he was “lazy and did odd jobs.”

The court, after a hearing, found the wife was the moneyed spouse. She was working as a micro-biologist and received a substantial income. During the course of the marriage, the husband took care of the parties’ marital home. He also raised the parties’ son. In addition, he found parcels of real estate that needed to be fixed up as investments.

Decision After Rehearing

Judge Pam Jackman Brown sitting in Kings County held the husband had made significant non-economic contributions to the marital estate. As a result of the husband’s non-economic contributions, the parties were enabled to live a “lavish lifestyle.” She also found the husband’s actions helped promote the wife’s career. Judge Jackman Brown went on to find in her decision the parties’ wealth and lifestyle related to the husband’s insight with regard to the acquisition of lucrative buildings that resulted in significant profits. She concluded the evidence supported the husband’s request for a 50% share of equitable distribution of all of the marital assets. This is based on his non-economic contributions to the home and raising the parties’ child.

Conclusion

assistance for fathersStay at home dads can play important rolls in their marriages entitling them to significant equitable distribution of the parties assets in a divorce.

Elliot Schlissel and his staff of father’s rights lawyers have been protecting father’s rights for more than 45 years.

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Wife’s Request for Attorney’s Fees Substantially Reduced

April 3, 2014 By

dads' rights attorneyIn a divorce action before Justice Stacy Bennett in the Supreme Court Matrimonial Part in Nassau County, Justice Bennett was presented with a case involving an application for substantial attorney’s fees. The wife and the husband in this divorce case had resolved all issues concerning joint custody of the parties’ children and they had agreed to a value of the husband’s interest in his medical practice. There was a trial and husband was granted a judgment of divorce. However, there were outstanding financial issues that still needed to be resolved. One of these issues was the wife’s application for legal fees.

Wife Minimally Contributed to the Marriage

Justice Bennett in her decision discussed the wife’s contributions during the parties’ sixteen year marriage. She found that the wife had actually had very minimal contributions. Justice Bennett in her decision stated the wife didn’t clean or cook at the marital residence. The wife had the benefit of nannies who took care of the children. Justice Bennett found the wife’s direct contributions to the husband’s business were extremely limited. She found all the wife did was host an annual holiday party or a picnic. As a result of the wife’s minimal contributions to the husband’s business, she awarded the wife a 15% interest in the husband’s medical practice.

Wife’s Request for Attorney’s Fees

Wife submitted a request for attorney’s fees of approximately $573,000. Attorneys for the husband argued these attorneys fees were excessive and unreasonable. They argued the case was relatively simple and attorneys fees of this nature were completely unjustified. Justice Bennett upon reviewing the facts of the case held the amount of attorneys fees was indeed unreasonable. She awarded the wife $150,000 of attorneys fees to be paid by the husband to her attorneys.

advocate for dadsElliot Schlissel, Esq., is a father’s rights lawyer with more than 45 years of experience representing fathers throughout the Metropolitan New York area.

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Family Court Cannot Amend Criminal Order of Protection That Didn’t Deal with Custody or Visitation

April 1, 2014 By

father's rights lawyerAn issue was presented as to whether a Family Court judge could modify a Criminal Court Order of Protection. The reasons for modifying the Order of Protection did not relate to custody or visitation issues. Upon review, the Family Court stated they did not have the authority to modify this Order of Protection.

The Order of Protection

An Order of Protection had been issued by a Family Court Judge in Westchester County. The husband was required to stay away from the wife and the marital residence. However, the Family Court Order had a provision which authorized the husband to live in a basement apartment located at the marital residence. There was a claim the husband violated the Order of Protection. A Town Justice had issued a new Criminal Court Order of Protection. This Order of Protection prevented him from having any contact whatsoever with his wife. Within the confines of this Criminal Order of Protection there was terminology which required that he stay away from her home. Unfortunately for the husband, the Criminal Court Order of Protection did not state he had a right to continue residing in the basement apartment located at the marital residence.

Family Court Refuses to Intercede Regarding Criminal Court Order of Protection

The husband brought an Order to Show Cause to the Family Court. He asked the Family Court to intervene and allow him to move back into the basement apartment at the marital residence. The Family Court issued an order saying it did not have authority to modify the Criminal Court Order. The Family Court took the position they could only modify Orders of Protection that dealt with custody and visitation issues concerning children of the parties.

helping fathersElliot S. Schlissel is a father’s rights lawyer. For more than 45 years, Elliot and his aggressive, dedicated attorneys have been representing fathers regarding orders of protection, child support, child custody and visitation issues throughout the Metropolitan New York area.

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Court Rejects Business Expenses Allegedly Incurred by Husband

March 27, 2014 By

father's rights attorneysJustice Duffy sitting in a Supreme Court Part in Westchester County recently ruled a man had to pay his ex-wife more than $282,000 in back child support and spousal maintenance payments. Judge Duffy determined the man had improperly taken personal expenditures including, but not limited to, a mountain climbing trip to Mount Everest as a business expense. Judge Duffy ruled the man had been artificially reducing his income from the years 2007 to 2012 to avoid paying the appropriate amount of child support and spousal maintenance to his ex-wife.

The expenses written off by the man included a 2010 three week trip to train to climb Mount Everest. The man had claimed this was related to his work concerning marketing mountain climbing gear. The judge found the husband’s explanation for the trip to be “not plausible.” She took into consideration, with regard to his writing off this trip, he was the only shareholder, only board member, and only officer of the company, which he created in 2007, that wrote off the expenses. Judge Duffy also found the husband had written off expenses related to a trip to Israel in 2007. This trip coincided with his son’s Bar Mitzvah in Israel. The man claimed during the trip to Israel he had met with representatives of an Israeli clothing company.

Corporate Funds Used to Pay Husband’s Lawyers’ Fees

The man had admitted to the use of corporate funds to pay his lawyer’s fees to litigate this post divorce legal action. The husband testified the entire amount of his lawyer’s fees in the case, which was $20,000, was paid for by corporate funds.

Husband Must Pay Child Support and Spousal Maintenance

Judge Duffy held the ex-wife was correct in alleging her former husband must pay child support and spousal maintenance payments pursuant to the divorce formula in her 2005 divorce agreement which included the expenses the husband wrote off.

The man tried to receive a credit of $7,000 he paid from corporate funds in 2010 to his sons who were aged, at that time, 19, 15, and 10. He claimed those funds were related to business related positions maintained by his children. With regard to this issue, Judge Duffy held “a non-custodial parent is not entitled to offset any voluntary payments made for the benefit of the children against the support he is required to pay to the custodial parent.”

Conclusion

protecting fathersBusiness expenses should be real business expenses and not be created to hide income thereby reducing a party’s support obligations.

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Father Receives Custody of Biological Child and Non-Biological Child

March 25, 2014 By

fathers rights lawyerThe Appellate Division of the Third Department, an appeals court, recently upheld a decision of a Family Court Judge granting a father custody of his biological child and a child he was not biologically related to.

The father and the mother were married. They lived together with two children. The father was the biological father of the younger child and not biologically related to the older child. The parties entered into a separation agreement. Pursuant to the agreement, the parties agreed to have joint legal custody of the children with physical custody of the children to the mother. The father had parenting time with the children.

The mother thereafter consented to a finding of neglect regarding both children. The court at that point ordered joint physical custody of the older, non-biological child be maintained between the parties. Each party was to have custody on alternate weekends. The mother still kept the physical custody of the younger child. The father only had visitation with the younger child.

Father Seeks to Modify Court Orders

The father brought proceedings seeking to modify the visitation arrangements with regard to both of the children. In these modification petitions to the Family Court, he asked for sole custody of both of the children. The Family Court initially entered an order granting him physical custody of both children and granting parenting time to the mother. Thereafter a petition was filed by the father alleging the mother had violated the temporary visitation order of the Family Court. Thereafter the Family Court granted residential custody of both children to the father and gave the mother liberal parenting time.

The mother had appealed the last order. The appeals court held there was a sound and substantial basis for the Family Court awarding custody of the children to the father. They took this position because the father was providing a more stable home and he had shown that he was capable of taking care of both of the children’s needs.

Conclusion

help fathers fight for custody It is possible for fathers to gain custody of both children they are biologically related to and children they are not biologically related to!

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Husband Ordered to Pay Wife’s Attorneys Fees for 12 Day Trial

March 20, 2014 By

Josh Tope had brought a divorce action in November 2011 against his wife. He had worked as an engineering consultant earning $46,000 per year. He had previously worked as an engineer earning $90,000 per year. He gave up his job to manage real estate. He presumed this would be more lucrative. It turned out to not be lucrative at all.

The Trial

There was a trial before Judge Patrick Leis, sitting in a Supreme Court Part in Suffolk County. Judge Leis ruled Mr. Tope had “engaged in obstructionist conduct”. This conduct caused the trial to last twelve days. As a result of his obstructionist, inappropriate conduct, Judge Leis ordered he pay his wife’s attorneys fees.

Judge Leis stated in his opinion, “this case highlights the difficulties that arise when one party uses their self represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney.” Judge Leis’ position was the divorce trial should have lasted no longer than four days. Judge Leis went on to state, “simple justice dictates that the defendant who chooses to function from a position of anger and resentment not be allowed to purposely drive up the plaintiff’s counsel fees and act in such an inappropriate manner, without being made responsible for all of the trial fees.”

Trial Issues

The issues at trial solely dealt with outstanding debts such as mortgages, credit cards and legal fees. Prior to the trial moving forward, Tope requested Judge Leis recuse himself from handling the trial. Tope threatened to complain to the Commission on Judicial Conduct if Judge Leis did not step down from handling the case. Judge Leis did not step down finding Tope’s request to be frivolous.

Inappropriate Action at Trial

Judge Leis found Tope acted in an aggressive, inappropriate manner during the course of the trial. He ignored the Judge’s rulings, and he failed to follow the judge’s instructions. He shouted at the plaintiff’s attorney in an aggressive, hostile manner. Judge Leis took the position Tope took this action to punish his wife and run up her attorney’s fees.

Judge Leis ruled despite the fact Tope was not earning more than his wife at the time of the trial, he had the potential to earn $90,000 per year. The judge therefore imputed $90,000 a year as imputed income to Tope and found he was in a superior position based on his imputed income to pay for the wife’s attorney’s fees.

Conclusion

It is not a good idea to misbehave in a courtroom and anger the judge.

protecting dads and kidsElliot Schlissel is a father’s rights lawyer representing fathers on divorces and Family Court cases throughout the Metropolitan New York area.

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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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