Archive for the ‘Divorce’ Category

Can A Prenuptial Agreement Protect Future Earnings?

Monday, December 10th, 2018

A prenuptial agreement, or “prenup”, is a tool utilized by both parties to protect their individual rights, as well as obligations, in the event of a divorce. Moreover, prenups cover the distribution and handling of property, real and personal, marital and separate. For example, if one party owned a house prior to marriage, they are likely to include a provision stating:

  • Which party will the property be retained by,
  • Who will be responsible for the costs of maintenance of the property,
  • How money obtained either through the selling or leasing of the property will be distributed between the parties.

Another use for prenuptial agreements is to protect future earnings. Although a party may not have any significant assets before or during the marriage, it doesn’t necessarily mean that they don’t expect to acquire significant assets in the future. With a prenup, the spouse can pre-emptively protect any earnings from their professional career in the event of a divorce. A good example could also be someone who expects to inherit or take over a “family business” prior to getting married, and so this planning in advance negates a possibility of that ownership being in jeopardy.

In order for the prenup to protect your future earnings and potentially gained assets, the prenup should be drafted by an experienced attorney, who knows how to correctly articulate what you want protected and preserved in the event of a divorce. The last thing you would want is for a vague and unclear prenup to be drafted and agreed upon, only for the judge to interpret it differently than you had planned. The prenup must be in writing and signed by both parties. The enforceability of a prenup is decided upon by the court, so long as the agreement was signed by both parties voluntarily, and the prenup is considered fair to both parties, it will be enforced.

What If My Ex Died Before A Divorce Settlement Was Fully Paid?

Monday, November 12th, 2018

If, in the event of a divorce, there is a settlement agreement drafted and signed by both parties, it stipulates and sets forth how the parties will operate post-divorce. This includes assigning custody of the child or children, child support, visitation, and spousal support. But, if the spouse paying child and spousal support dies, how can the other parent receive any support at all?

If the Court issued a financial Order, then there has essentially been a “debt” assigned, and therefore can be sued due to an unfulfilled obligation. In this scenario, the executors of the deceased spouse’s estate will be responsible for determining in what amount the estate will pay out.

If the divorce settlement and proceedings are finalized, and, for instance, the deceased spouse did not change the beneficiary from their spouse to another person in their Will, then that Will shall be enforced upon the conclusion of the divorce proceedings. In the event that there is no such Order issued, it is harder to argue that there was a “debt owed”. You can bring a claim under the Provision for Family and Dependents Act 1975, wherein the Court will determine based on these considerations:

  • the financial resources and needs of the applicant

  • the financial resources and needs of any other applicant
  • the financial resources and needs of the beneficiaries
  • any obligations and responsibilities of the deceased towards any applicant and any beneficiary

  • the size and nature of the estate of the deceased
  • any physical or mental disability of any applicant or beneficiary

  • any other matter, including conduct, which the court may consider relevant.

Beyond this, there is not much else the surviving ex-spouse can do. The Court will definitely take into account what could have been reasonably expected to have been received in the event of a divorce, without the death of the former spouse.

Will Dating While My Divorce Is Pending Affect The Outcome?

Tuesday, September 4th, 2018

By the time the divorce action gets entered into court, and the proceedings begin, it is not uncommon that one, or even both, of the spouses are either engaged in a new (or sometimes pre-existing) relationship, or at the very least they have started to “get out there again” and going on dates. Although most spouses who are getting divorced are separated, many wonder if having romantic and intimate relationships with other people will negatively impact their case in court. After all, they are still married, and many people become concerned that the judge may find this to be a reason to rule in favor of their soon-to-be ex spouse.

The answer to this question is complicated, because while there is no written rule of whether or not dating is allowed, their can be many ramifications that come as a result of the fact that you are dating, and so it is important to be mindful of the impact these relationships may have. For example, judges are not known to punish a spouse for dating other people, especially after they have become physically separated from their spouse. But, because you are still married, it is very likely that your current spouse will take some issue with this – even if they themselves are dating! Some go as far as accusing the “dating spouse” to have begun the relationship before the divorce was started, which would be an affair, and not look good to a judge.

Some rules of thumb to follow revolve around how and when you should go about dating. For instance, as mentioned earlier, it is more appropriate for you to start dating after you and your spouse have physically separated. Not only for how it would look with respect to your marriage with your spouse, but it helps keep it away from the children, who would not benefit in any way from witnessing it, nor should they meet your new person. Keep in mind that divorce is an emotionally taxing process and experience, and it may be wise to just refrain from engaging in an emotional relationship until things are more calm, stable, and when you are able to confidently and comfortably re-enter the “dating game”.

What is a Collaborative Divorce?

Friday, August 10th, 2018

To many of those who are exploring options for divorce, Collaborative Divorce, a recent addition to the list of ways spouses can get divorced, sounds a lot like mediation. In some ways it IS like mediation, except that in a Collaborative Divorce, both parties still retain their own attorneys to represent them. However, unlike in a traditional divorce setting, both attorneys are working with the mindset of getting the best possible outcome for both parties, as opposed to just representing and fighting for their clients interest only. In fact, the lawyers that specialize and practice in this type of divorce are bound by a different set of rules than those who do not, like putting what is just and fair before their client’s interests. Moreover, if the process breaks down, neither attorney is allowed to represent their client when the case goes to court.

A Collaborative Divorce is a great option for couples who feel that they can work out a divorce settlement amicably amongst themselves, but still want to have an attorney present, to protect them from agreeing to something they don’t understand, and might come back to haunt them later. In addition, much like with mediation, a Collaborative Divorce can be useful in ending the marriage while, in some capacity, preserving and retaining a functional relationship. The process is very organized, and an agenda/plan is set up in advance so that both parties have ample time to prepare for each meeting, in which they will discuss and negotiate (and hopefully compromise) on all the key issues and subjects that must be dealt with in order to move towards a divorce. If you and your spouse have a working relationship, and want to avoid a costly divorce, you should definitely consider a Collaborative Divorce.

How Do I Get A Divorce If I Cannot Afford One?

Monday, August 6th, 2018

There are many common reasons why one of the spouses in a marriage cannot afford a divorce. By “afford a divorce”, I am speaking primarily about being able to afford to retain legal counsel. The reasons for this can vary, from the fact that their spouse is the one that controls the finances, or perhaps they kept their finances separate, and one of the spouses is not in a place financially to hire a lawyer. In any event, there are other ways for someone to get a divorce attorney besides the traditional route of just hiring and paying one.

If your spouse controls both of your finances, you can approach this several ways. One way is to try and see if you can find an attorney that will provide a free consultation, so that at least you are taking one step in the right direction. Some may even be willing to take your case on, and work out a plan on how they will get compensated at a later time. In addition, the court may grant your request for your monied spouse to pay your legal fees.

Another option is an uncontested divorce, which is simple and quick because it does not involve a long, drawn out divorce process. There is one other option, although it is highly unadvised, which is to represent yourself in the divorce, meaning you will be your own attorney. But in the case of not being able to afford most attorney fees, see if you can obtain pro bono, or legal representation without charge.

How Can I Protect Myself If My Spouse Takes Out A Loan In The Divorce?

Monday, August 6th, 2018

Many people who are preparing for divorce get anxious when they begin to think about incurred debt, both their spouses and their own, and if they will be responsible for paying this debt off once they are separated from their spouse. When it comes to debt incurred during marriage, the truth is that it all depends on a few things, mainly who’s name is the debt in, what your state’s laws are, and what kind of debt it is (credit card debt, mortgage, auto, etc).

If your name is on a loan, either as a borrower or a co-signer, you will be held completely responsible for the paying back of this debt. The lender of the initial loan does not care about the circumstances of the borrower – their main priority is to receive money to the fulfillment of the debt (they may not ever even become aware that you got divorced!). The longer this goes unpaid, the more your credit score will suffer, and when you are just getting out of a marriage, and your finances are still a bit in a state of flux, the last thing you want is a mounting debt and a suffering credit score – especially as you look for a new home. So merely by being a co-signer, even if the “debt” is not explicitly on you, the loan and payment of it are applicable to you. A good option here is to try to get your name off the loan, either by refinancing or, if possible, having your name removed entirely. But if that doesn’t work, it is best to have it paid off, and deal with being repaid later, when your credit score isn’t taking a major hit.

In the state of New York, a “common law” state, spouses are only responsible for debts explicitly in their name, which allows one to be very mindful and careful when deciding on entering into a joint account with their spouse. Moreover, a prenuptial agreement can outline something similar, in that it can explicitly detail how finances, and debts, are to be divvied up in the case of a divorce.

Can I Change My Child’s Last Name from the Father’s Surname to My Surname?

Thursday, July 26th, 2018

For a variety of reasons, a parent that is planning on receiving full custody of their child after a divorce may want to change the legal name of the child, specifically their last name, If it comes from the other parent’s side of the family. However, there are some factors that play into the legality of changing the child’s name. Some of these factors are age, the reasoning for the change, and the interests of the child.

If the child is under 16, then a parent is able to change under a deed of change of name, otherwise known as a “deed poll”. A deed poll is a legal, binding document that that commits a person to whatever action is detailed in the document. In this scenario, following the poll, the person will be legally abandoning their name, agreeing to their new name at all times going forward, and living a life in which people will be addressing them by their new name. It is important to note that it is very hard and unlikely to change the original birth certificate, and it may not reflect the change.

There are various reasons that have been considered for a change of name as well, such as the common scenario where a parent is distressed by having to address their child, who shares either a first and/or last name with the father, especially if there is a history of violence between the parents. The court has recognized that this distress can have a serious impact on the parent’s ability to take care of the child. The court also has acknowledged scenarios, in which it would be in the best interest of the child to have a name change. This could be a scenario where the child has not been known by their current name very long, and in fact by NOT changing the name, it could actually cause the child harm .

Which Parent Is More Likely to Be Granted Sole Custody?

Tuesday, June 19th, 2018

The question of whether a mother or father is more likely to get full, sole custody of their child is an interesting one. In the late 1800’s, a legal principle in family common law, known as the Tender Years doctrine, was commonly called upon to argue that the mother should have custody of the child. The idea behind the doctrine is that in the “tender years” of the child, a colloquial term referring to childhood and adolescence, it would be cruel to create any space between a mother and her young child, and that a child in these tender years needs all of the love and affection that only a mother can give. Granted, it was not written into the law, and it served more as an assumed presumption, one that was adopted by some courts in the U.S. from a custody law that was passed by British Parliament in the mid-1800’s. Still, it persisted in child custody battles for over one hundred years.

However, as time went on, the courts stopped recognizing the presumption, and actually went back and started reversing decisions that were heavily based on the tender years presumption, and the courts began ruling based on rather gender-neutral respects. That is why in most of the country, the court determine custody with the best interests of the child as the primary factor, where the presumption is that the primary caretaker is going to be the best parent to handle the primary responsibilities and custody of their small child.

However, there is a bit of similarity in these two determinants. In many instances, granting the mother sole custody is in the best interests of the child, either because the father is not a fit parent in his own right, or because the father moved significantly far, to the point that it would do more harm than good to relocate the child. But, keep in mind that, if the roles were reversed, these same reasons could be behind the rationale behind why a court would grant the father sole custody.

What Is Marital Abandonment?

Tuesday, May 15th, 2018

Otherwise known as desertion, abandonment is a very common scenario in which one of the spouses, with no apparent cause or reason, abandons the other by way of essentially getting up and leaving either the household or their spouse alone and on their own in general. In such a scenario, the abandoned spouse would have grounds for a divorce, however there are some requirements to bring a divorce under such grounds. A big one is that they have been abandoned for at least a year, and that not only was this departure not agreed upon, but also that the abandoned spouse did not cause the unwanted walk out. This is significant because if there is a scenario where one of the spouses has made it virtually impossible to live with the other (this, as you can imagine, is not unheard of), then the abandoning spouse can claim constructive desertion in response to a suit. If a spouse’s conduct makes it impossible for their spouse to stay in the marital home, they have been constructively deserted.

Another way in which a spouse can be considered deserted is in a sexual sense, as in their spouse refuses to have sexual relations, which is widely accepted as being part of a marriage. Sexual desertion is also considered a fault ground, and the same time limit to prove exists (one year), and during this year of no sex, the spouses must have lived under the same roof. Constructive desertion is often the result of cruel and inhumane treatment, but it is important to understand that if this is a ground which you want to pursuit, you will have to divulge and delve into some very personal and potentially uncomfortable topics in court, in front of attorneys and the judge. Lastly, it is important that the major difference between separation and abandonment is that a separation is mutual between the two parties, whereas abandonment is not agreed upon between the spouses.

How Do You Get A Divorce When You Cannot Locate Your Spouse?

Monday, February 5th, 2018

When one spouse decides they can no longer be with their partner, and that they need a divorce, they are not always guaranteed that their spouse is on the same page. In fact, many partners who are not in favor of getting a divorce make it very complicated for their spouse to do so. In the event where the couple decides to separate, but stay legally married, one of the spouses sometimes can move to another city, state, or country, and this is often accompanied with a cease in communication.

But what happens if you lose track of your ex’s location, and then, when the time comes where you want to officially end the marriage (to either remarry someone else, or to just get it over with), you need to serve them the divorce papers? What can you do?

The legal system offers alternative ways of achieving the same goal as having your divorce attorney serve your spouse, which ultimately is to inform them of the divorce in a fair amount of time prior to the court date so they can prepare.

One form of this is through an Order of Notice by Publication, which is precisely what it sounds like. Using your spouses last known address, you will publicize, in that surrounding area’s local newspaper, your intent to divorce your spouse. Think of it like any other advertisement you see in the newspaper, only you aren’t selling anything, but rather making the public aware of the divorce, with the premise being this is the widest net you could cast in order to informally notify your spouse.

The court recognizes this because it is the most significant action a spouse who is seeking a divorce can take without knowing the location of their husband/wife. This legal publication will be in the paper for about 3 weeks, and on top of that there will be a predetermined, additional amount of time to allow your spouse to prepare, if they did end up seeing your “ad”.

If they still don’t respond to that notice, then you may go on in finalizing your divorce, as the court will find that you did all that you could reasonably be asked to do to notify them. You will need to prove that you put this legal notice in the paper, in the form of a copy of the publicized notice and also an affidavit of marshal service, confirming the publication was in the paper.

If you need help from an experienced NYC divorce attorney, contact Paul E Rudder, Esq. today! Call 212-826-9900 to set up an appointment.