Posts Tagged ‘New York divorce’

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.

Can My Estranged Wife Petition The Court For Additional Child Support?

Friday, December 7th, 2018

Although child support payment is typically determined during the settlement process, there are instances where there is a modification that can be made post-divorce. The custodial parent, who is the parent receiving the child support, would have to file a petition with the court, to ask for a modification to the current child support order, which in this case is an increase in the amount paid.

The court will look for a significant “change in circumstance” in one or both of the parents’ lives, specifically one that would warrant a modification to the child support order. For instance, in a scenario where the custodial parent is seeking additional child support, the parent might cite the fact that the non-custodial parent has started to earn more money, and can now afford to pay more child support.

A change in income can also result in a modification, not only for an increase in support paid but in some cases a decrease. In some cases, the order might lead to a decrease in the amount paid monthly by the non-custodial parent if, for example, they lost their job. The resulting modification, in this case, would be a reduction in the amount the non-custodial parent has to pay.

Ultimately, a custodial parent can petition the Court for additional child support, and a non-custodial parent can seek a modification as well. In either scenario, to be awarded the modification they are seeking, they will have to show a significant change in circumstances in the child’s life or either parent’s life, financial or otherwise. Whatever the reason, it is the court’s decision to either accept or deny the modification.

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”.

Are Stepparents Required To Pay Child Support For Their Spouse’s Child?

Friday, August 31st, 2018

In general, the courts tend to not require a stepparent to make child support payments for the child of their new spouse, from their prior relationship. Moreover, when the courts are initially calculating child support payment amounts, they will not even include the stepparent’s earnings as a factor. However, just like with any other matter that comes before the courts, there are always mitigating factors that they determine have a substantial enough impact, and are relevant enough, that it warrants being included in the decision making process, and the facts of a case may require the stepparents income to be included when deciding child support payments for the biological parent. For instance, if the support-receiving parent marries someone that reduces the cost of living for them, then a court may reduce the child support award to reflect an appropriate amount with respect to cost of living.

An exception to this would be if the stepparent decided to adopt the child, in which case they would be personally liable for child support. However, in order for this to occur, the parent of the child, who is not their current spouse, would normally have to terminate their parental rights in order for the stepparent to even begin the adoption process. In a regular scenario, however, stepparent are not required to pay child support for the spouse’s child.

What If The Non-Custodial Parent Doesn’t Appear For A Court Date?

Wednesday, August 29th, 2018

Assuming that the non-custodial parent was properly served, and made aware of the court date, they are expected, and demanded, to show up to court. Typically, a summons, along with other relevant documents to that court date, will be included in the service, and will also notify the parent of the date, time and location of the court date.

There are certain types of cases in which the penalty for not appearing can lead to a bench warrant being issued for that person’s arrest. However, with regard to custodial/non-custodial parent issues, if the non-custodial parent does not appear, it will only serve to hurt them in the divorce process. Suppose that you are the non-custodial parent, and the court date is set to discuss a potential modification to the custody agreement. While it is not a guarantee that, if the non-custodial parent does not show up, the court will rule in favor of the other party, it is really not a good look for the non-custodial parent, and is not indicative of someone who A. is responsible, and B. really wants to have a new custody arrangement that will allow them to see their kids more.

If the court date is to discuss child support, then the non-custodial parent’s absence could mean that the court makes a decision without the non-custodial parent being able to represent themselves and their interests in court, which could be incredibly important, depending on the exact nature of the issue being discussed in court. So, besides giving off the impression that you just don’t care, missing court dates means that you will not get to have your interests represented and argued for, which leaves you at the mercy of the decision made by the court – without you.  

How Does Remarriage Affect Child Custody?

Friday, August 24th, 2018

When it comes to children’s living circumstances, the court holds “what is in the best interest of the child” as their most determining factor. With that in mind, parents are often worried about beginning a new romantic relationship, because they fear that it may create an environment in which their child does not feel comfortable. Not only would a parent with physical custody worry about this, but a non-custodial parent as well, as they already have their child with them for a limited amount of time, and would not want to give the court a reason to further limit this time. But does that mean a parent can’t begin an intimate relationship with a new person, let alone remarry?

First, it’s important to recognize the common scenarios in which remarriage affects a child life. For instance, if the remarriage might lead to a relocation of one of the parents, and in that scenario, the child’s life would be greatly affected. If the custody agreement states the parents have equal time, then a move like this would severely impact the agreement and the child’s  current state. In this scenario, the custody agreement would have to be modified in order to allow such a move.

Another instance where remarriage can impact the custody of a child is if the new spouse and the child do not have a good relationship. While this can be in the form of physical abuse, it does not have to be. Again, it is what is in the best interest of the child that the courts care about primarily, and if they feel that the presence of the new spouse has a negative impact on the child, they will be more than willing to make a modification of the custody agreement. The court will look to see a corresponding change in the child, whether it be in school or in their behavior, to signal that the current set-up is not working.

Ultimately, if one of the parents is planning on remarrying, then the new spouse should want to develop a positive and fostering relationship with the child, whether the parent wants to potentially gain more custody time, or preserve the custody arrangement they have currently.

How Are Child Support Payments Made?

Monday, August 20th, 2018

As the parent ordered to make child support payments, there are multiple, acceptable forms of payment that you can submit your child support payments through. Sometimes, the Court might specify the exact method that they want the paying parent to use, if the circumstances regarding the receiving parent require a specific method.

The methods of direct payment, where one parent pays the other on a specifically set schedule, vary in terms of method of delivery, as well as when they are appropriate to be used. Cash is a very common method, but a major drawback is that there is no receipt given, and therefore it is a bit difficult to prove that payment had been made, if it is ever needed. Also, depending on the status of the relationship between the parents (whether or not they can coexist), it may or may not be feasible for there to be a face-to-face meeting between the two.

In order to avoid the in-person interaction, a check or money order can be made in lieu of cash. Although this leaves the possibility of the money getting lost, there is at least a form of proof of payment, or attempt of payment, that comes with this form of payment (although you wont always know when).

Sometimes, the Court has to enforce the payment of child support, and in this scenario, they often utilize their ability to enforce wage garnishments, to extract the demanded child support amount. This is done through the employer, as they will withhold the amounts from their income. However, this does require that the paying spouse has a job, and is not self-employed.

As technology has improved, online transfers are now an acceptable form of child support payment as well. But again, the Court can set the form before the parent even has the chance to decide, and it would be determined largely by the best way for the receiving parent to accept payment.

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.

Handling Marital Assets During A Divorce: Vehicles

Friday, April 20th, 2018

Similarly to homes and dwellings, vehicles, such as cars, trucks, vans, and even the occasional motorcycle, are often the subject of disputes in many, many divorce cases. Sometimes one spouse feels that they are entitled to keeping it, while the other wants to sell the vehicle and, very amicably, would be willing to split the profit, although sometimes there is a belief that they themselves are solely entitled to the money. Another scenario that is quite common is that one of the spouses will be paying a monthly lease for the car, yet it is their partner that is the one mainly driving the car, and since they will no longer be together, they don’t want to pay for their ex to have a car.

The courts use a very general set of circumstances to decide on how this problem will be resolved, with different situations resulting in a potentially different outcome. For instance, whether the vehicle was acquired during the marriage or before the marriage makes a big difference. If it was purchased prior to the couple getting married, then the purchaser would have a very substantial argument that the vehicle is not considered marital property. However, if the car was purchased during the marriage, there is a high probability that the court will deem it as marital property, and therefore it will most likely be subject to distribution in the divorce. While this does not necessarily mean you will lose complete ownership of the vehicle, it is now in the hands of the court to decide. If the car was a gift from one spouse to the other, then the courts find that gifts are considered separate property, and therefore it will not be subject to distribution.

The money used to purchase the car also makes a big difference to the court. For example, if the funds used to buy the car were separate funds of one of the spouses, then again, they would have a very compelling case that the car is not considered marital property, and not up to be divided. However, it also stands that if the funds used were deemed to be marital funds, then consequently the car is also going to be considered marital property.