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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Wife Denied Temporary Spousal Maintenance

November 22, 2013 By

father's rights attorneysIn a divorce action pending in Westchester County, in the State of New York, a wife sought pendent lite spousal maintenance (temporary spousal maintenance). She requested all compensation paid by their company, A Management Corp. (AMC), to both the husband and wife be equal. In addition, she sought a temporary spousal maintenance (alimony) award in the divorce lawsuit.

The attorney for the husband opposed wife’s application. The husband claimed his wife voluntarily left the employment of AMC. He further stated even after she left she still was receiving her salary. While she was receiving a salary, he made payments for many of the marital expenses, including her cell phone and car insurance. The husband also alleged that although he had been paying the wife’s salary she had actually not worked for AMC for a period of four years.

Judge’s Ruling

Justice Linda Christopher, ruled the wife’s requests for temporary spousal support and requiring all compensation paid to her and her husband by AMC to be equal, was an unreasonable request. She took the position the relief the wife asked for was not authorized and not appropriate since wife did not have an active role in the company for four years. Judge Christopher stated the presumptive award for spousal maintenance was $9,824.60 annually. She also found this amount would be unjust and inappropriate. Her decision was there should be no temporary spousal maintenance award. The court took this action because the wife was still receiving a salary from AMC. She was able to support herself on this salary and she was still receiving voluntary payments from her husband to cover her expenses that were in excess of her salary.

Conclusion

protecting father's rightsYou can’t have your cake and eat it too!

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Internet Downloaded Separation Agreement Found Valid

September 30, 2013 By

father's rights lawyerIn a recent case before Justice Leonard Steinman sitting in the Supreme Court Divorce Part in Nassau County, a husband had filed a divorce action against his wife. In this proceeding, he sought to incorporate by reference a separation agreement into the judgement of divorce. The wife argued the agreement should not be allowed to be incorporated into the judgement of divorce. She claimed she was induced by fraud into signing the agreement.

A motion was made to determine whether the agreement was valid. The Court found the agreement was drafted by the wife. She found the agreement on an internet website. After downloading and printing the agreement she presented it to the husband, he executed it.
The agreement had a waiver of spousal maintenance. It also stated there would be “no demand for child support payments”. The agreement required the parties sell the marital home and equally divide the proceeds. Pursuant to the terms of the agreement, the parties opted out of exchanging financial net worth statements. Neither the husband nor the wife were represented by an attorney during the course of the negotiation and execution of the agreement. However, the parties did properly execute the agreement before a notary public and they filed it with the County Clerk of Nassau County.

The Agreement Terms Were Followed

The Court found that the parties had followed the terms of the agreement after its execution. The Court found the parties had lived separate lives. They did not share a bedroom together. They also filed separate tax returns.

The Court found the separation agreement executed by the wife was not unfair or inequitable. The judge ruled the wife’s claims that the parties did not intend to be bound by the agreement were undercut by “its unambiguous terms.” He made this decision even though the wife waived spousal maintenance in the agreement.

It should be noted, the husband acknowledged that the child support provision does not comply with the Child Support Standards Act. However, he agreed that this could be severed from the agreement and the rest of the agreement could be enforced.

Justice Steinman found the agreement to be valid and incorporated it into the judgement of divorce.

Conclusion

In this case, the wife wanted to have her cake and to eat it too. She drafts an agreement and then decides later on she wants more. Justice Steinman found she was not entitled to a second bite at the apple. This is a case where men’s rights were protected.advocate for father's rights

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Unfair Prenuptial Agreement Thrown Out

August 19, 2013 By

family law attorneysE.N. entered into a prenuptial agreement with A.N.  E.N., a woman, had been a receptionist in a law firm that handled divorce cases. The prenuptial agreement was drafted by her husband’s lawyer. She had virtually no impact in the agreement. She hadn’t read the final draft of the agreement.

Acting Supreme Court Justice Victor Alfieri, Jr., sitting in Rockland County, held “the agreement was completely one-sided.” “Plaintiff thought the purpose of the prenuptial agreement was to protect defendants’ individual and joint bank accounts. There was never any discussion between the two of them about plaintiff waiving her rights to spousal maintenance, insurance benefits, his pension or his estate should he predecease her.” The Judge went further to state “plaintiff did not see a copy of the agreement prior to signing it, nor did defendant’s attorney explain it to her prior to her signing it.”

History of Relationship

A.N and E.N met in 1994. Their engagement lasted 2 years. A.N. insisted on a prenuptial agreement prior to getting married to E.N. E.N. thought the agreement just would deal with waiving her rights to A.N.’s bank accounts which he held jointly with his mother.

A.N. had his attorney draft the prenuptial agreement. Although E.N. agreed to sign the agreement without reading it based on A.N.’s statements he would not marry her unless she signed the agreement.

Divorce Proceedings

A.N. filed a lawsuit against E.N.  E.N. brought an action to set aside the prenuptial agreement. The Judge found that E.N. had “no input” in the prenuptial agreement’s terms. The Judge also pointed out in his decision she was not represented by counsel during the negotiations and the execution of the agreement. In the end, the Judge found, based on all the facts in the case, the prenuptial agreement should be set aside because it was unconscionable, involved over-reaching and duress.

Conclusion

Both parties should always be represented by a family law attorney prior to entering into a prenuptial agreement. There should also be full disclosure of assets, debts and a full explanation of the terms and conditions of the agreement by the attorneys for each of the parties prior to their executing the agreement.father's rights advocate

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