A prenuptial agreement is a legal agreement entered into before a marriage. In my opinion, prenuptial agreements are an absolute necessity, especially for those who have been married previously and therefore have more fingers in their pensions, retirement accounts and other assets than their favorite pair of gloves.

The key to an effective prenup is to draft them correctly.  This way, you will minimize the chance that there will be loopholes or other avenues ripe for attack when (and if) you decide to dissolve the marriage.

We can customize a prenuptial agreement that will protect you fully against the loss of assets in the event of divorce.  With a properly drafted prenup, you will also stand to save THOUSANDS of dollars in attorney’s fees if you do get divorced simply because a properly drafted prenup will minimize, if not eliminate, the need for a contested matrimonial matter.

 

Jonna’s Legal Lowdown: The best time to plan for divorce is BEFORE you walk down the aisle!  A carefully drafted prenuptial agreement will protect you and your assets in the event “happily ever after” turns out to be entirely too long.

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Postnuptial Agreements

A postnuptial agreement is a contract that a couple enters into after their marriage in order to settle such matters as alimony, property division and even child support in the event of a separation agreement or divorce. It can provide a number of benefits to both spouses. I like to refer to a postnuptial agreement as “pre-divorce” planning.

If you consider your marriage and all of your financial wealth (both that which you bring to the marriage and accumulate during the marriage) as one of the biggest, most important “assets” you own, it makes perfect sense to protect it as well.  That is the function of both prenuptial and postnuptial agreements in New York.

Generally speaking, for a postnuptial agreement to be valid, it must be in writing, must be voluntarily agreed to by both parties, must have full and fair disclosure at the time of the agreement and must be executed before a notary public.

Jonna’s Legal Lowdown: Some criticize both prenuptial and postnuptial agreements as “unromantic” and “planning for disaster”.  I see them more as insurance policies.  Think about it. Would you drive a car or buy a home without protecting against “disaster” by insuring your asset is protected against a calamity?  Of course not!

Family Law

Money may have been the thing that broke up your marriage, but it shouldn’t be what gets in the way when it means doing right by your kids. In fact, the state of New York has it figured out for you.

Determining child support for parents who are seeking a separation agreement or divorce is typically carried out using a standard formula. This formula is actually very simple, yet often it can feel unfair to both the payer and the payee.  Understanding the formula will assist both sides in managing their finances.

Child support is most often calculated for families with a combined parental income in the following manner:

Percentages of combined parental income:

17% – 1 children
25% – 2 children
29% – 3 children
31% – 4 children
35% – 5 or more children

The court will use the most recently reported income (gross income, less FICA) on your federal tax return. It is important to note that case law establishes the court’s right to apply the percentages well in excess of $130,000 of combined parental income and the courts regularly do. How high they go varies from case to case, county to county and judge to judge. The courts consider the reasonable needs of the child or children in determining this issue.

Divorce

To file for divorce in New York, you used to need “grounds”.  In October 2010, New York became the last state in the U.S. to adopt “no fault” divorce.  The grounds for divorce in New York include: cruel and inhuman treatment, abandonment, adultery, legal separation, irreconcilable differences, imprisonment and now “irretrievable breakdown” (aka, “no fault”).

Divorces are like snowflakes – no two are exactly alike.  It’s important to discuss your reasons for wanting divorce (or, if you have been served with a divorce summons, the reasons stated in the summons and complaint against you) with your attorney at the initial consultation.

Ninety-nine percent of the time the grounds for divorce will have absolutely no bearing on equitable distribution or child custody.  Because of this, filing under the new “no fault” law can usually save clients time, money and aggravation.

Jonna’s Legal Lowdown: If your approach to the divorce process is, “I just want out”, place your hand on your attorney’s desk and ask her to whack it with a ball-peen hammer.  This will remind you that making decisions in haste hurts.

Child Custody

Determining child custody in the divorce process is not as cut and dried as it was twenty years ago.  For the most part, custody is not “automatically” granted to the mother. Nowadays, fathers have rights, as do grandparents, and both are given a voice in court.  The essence of family law is to do that which is in the best interests of the children.  No matter how you slice it, custody matters remain emotionally charged for the whole family.

In most cases, the court will work to keep both parents involved in a child’s life.  Oftentimes an advocate or “Law Guardian” will be appointed to represent the children’s interests and be their voice in court.

Factors that will influence the court’s decision include:

Status Quo: is there currently a custody agreement that has been developed and used by the parents?
Siblings: the court usually works to keep siblings together, but at times the needs of siblings will differ and thus the court could decide to split them between parents.
Stability of Environment: the court will usually prefer to keep the child in the same environment, community, school, etc.
Wealth of the Parent: the court will typically prefer to award custody to a place where the child has suitable space, a safer neighborhood, adequate food and clothing, etc.
Parental Stability: are both parents stable? Whether a parent suffers from an alcohol or drug problem or mental instability will influence the court’s decision regarding custody. A criminal history, history of abuse or history of promiscuity may influence the decision the court makes.

Other Factors also include:

Preference of the Child.
Relationship with the Parent.
Relationship with others in the Parent’s Household.

Grandparent Custody and Visitation in NY

The rights of a father or mother in regards to child custody and visitation have long been recognized by courts throughout the U.S. While fathers’ rights are a newer concept and are still making progress, grandparents’ rights are another relatively new idea. A grandparent often plays a major role in enriching a child’s life and attributing to his or her happiness and well-being.

 

Jonna’s Legal Lowdown: Always love your children more than you hate your ex.  Remember that your children’s futures will be affected by your decisions in the divorce process.  Kids are not pawns.  If you always act in their best interest, your decisions will be sound.

Separation Agreements

In New York, separation can be grounds for divorce. But before either you or your spouse bid one another “Hasta la vista, baby,” it’s best to have a properly drafted Separation Agreement. It can save both parties from enduring an expensive and time-consuming divorce.

In many cases, when both spouses agree that they want to divorce, they file for a separation agreement with the county clerk’s office. This is a legal process that basically declares the spouses legally separated, including stipulations regarding child custody, visitation, child support, maintenance and property division. One year after successfully executing a separation agreement, one spouse may then sue the other for divorce based upon the separation agreement, and the other spouse can consent to this.

A legal separation acts to “stop the clock”.  In other words, anything that either spouse acquires after the date of separation will be considered separate – not marital – property.  Additionally, the monies that are deposited in a spouse’s pension and/or retirement account will not be a part of the valuation after the date of separation.

Jonna’s Legal Lowdown: Filing a separation agreement is optional and only required if and when you are suing for divorce. It can be, however, a very useful, money saving tool.

Temporary Maintenance

The times they are a changin’.  In 2010, new laws affecting all contested matrimonial matter in New York (called the Divorce Reform act) created guidelines for determining temporary maintenance.

The “monied” spouse, the spouse that earns the higher income, is the spouse who, absent extraordinary circumstances, will be required to pay maintenance (formerly “alimony”), the other spouse’s attorney’s fees, and other costs while the matter is pending.  These payments are often referred to as “interim” obligations as they are subject to be changed by agreement between the parties, or by order of the court after trial.

The formula is, in essence, as follows: Where the payer’s income is up to the $500,000 annual cap:

(a) The court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payer.

(b) The court shall then multiply the sum of the payer’s income up to and including the income cap and all of the payee’s income by forty percent.

(c) The court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph.

(d) The guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars.

If the income of the payer exceeds $500,000 annually the court shall use the formula above to determine temporary maintenance on the first $500,000 of income and then it shall consider 19 factors as set forth in the new law to determine what, if any, maintenance should be awarded on income over that cap.

The act states that if the court finds the above results in an award that is unjust or improper, it can adjust it based upon 17 factors also listed in the law.

Post-Judgment Maintenance in New York Divorces

This act does not state any presumptive amounts or duration but lists instead 20 factors for the court to consider when making such awards. What this law does not cover are answers to what impact the formula for setting temporary maintenance will have upon courts in determining the appropriate dollar amount and duration of final awards of maintenance.

Jonna’s Legal Lowdown: It is crucial to “do the math” with your lawyer as soon as possible.  When the court gets involved and renders an interim maintenance award against the monied spouse, and the same spouse is also obligated to pay child support, it often shifts the power, so to speak, and can be a serious financial burden on the payer during the pendency of the action.  The sooner you and your attorney do the math, the smarter your decisions can be in moving forward.

Modification of Child Custody

Beginning the divorce process can be confusing and scary. But the end of your marriage doesn’t need to be the end of the world.  One of the main focal points in any divorce involving children is their care and well-being.  Unlike equitable distribution of property, which cannot be changed, custody, visitation and the support of your children can and often require modification.

Lives change. People lose jobs, get new jobs, sometimes need to move, get remarried, etc.  The younger your children, the greater the chance that eventually – perhaps even more than once – modifications to your custody, visitation and support orders will need to be made before the children become adults.

Child Support

Child support is often a point of contention, both for the payer and the payee.  It is not uncommon for the payer to feel as though the support payments are being misused; and the payee can often feel as though the amount being paid is inadequate.  Whether these feelings are justified or not, an experienced attorney can assist you in gaining all the knowledge necessary to understand how child support is calculated, how it is sometimes possible to deviate from the “guidelines”, and when it should be modified.

Some common occurrences that warrant a modification of child support include:

An unanticipated or unavoidable job change
A change in your child’s residence
Your child becomes emancipated.
A change in your child’s medical or educational needs.
When in doubt about child support, it can be very beneficial to consult with an experienced attorney to determine whether an agreement can be reached out of court, or whether court intervention is necessary.

Jonna’s Legal Lowdown: A word about SUNY caps: placing a SUNY cap restriction on the parent’s college tuition obligation is common practice in divorce, but what happens if your little geniuses get into Harvard and one or the other parent can’t – or won’t – pay his/her portion of the bill?  Planning ahead can avoid a future court battle and more importantly, will ensure your children’s educational desires are fulfilled.

Visitation Rights

In a typical custody/visitation arrangement or order, one parent will be deemed the “custodial” parent and the other the “non-custodial” parent.  Typically, the custodial parent will also have “final decision making” authority over the other parent, but not always.

Just as in determining child custody, visitation schedules and rights are determined in regards to what is in the best interest of the child or children involved. As such, visitation will typically vary depending upon the particular circumstances of your divorce or separation.  The most desirable visitation schedule is one on which both parties agree. That even includes the issue of transportation – which can pose its own problems and therefore should be included in the agreement itself.

Having an experienced attorney to represent your rights during legal proceedings and negotiations regarding visitation rights can mean the difference between frequent petitions back to court to modify an undesirable agreement, and a smoothly running co-parenting arrangement.  Together you can create a plan that works for you and your child without the need for continued court intervention.

Visitation Schedules in New York

A “typical” visitation used to look a lot like this: one day mid-week, every other weekend, and alternate holidays. The good news is there is a trend toward true “fifty-fifty” co-parenting schedules whenever possible.  At Jonna Spilbor Law, our clients’ needs are never “cookie-cutter”.  We work with you to ensure your specific needs, and your children’s, are met to the best degree possible.

Modification of Visitation in New York

Whether you are the custodial or non-custodial parent, it may be necessary at some point to modify your child’s visitation schedule.  Common situations that may necessitate a visitation modification include:  Your child’s preferences change; a parent’s living or financial situation change; or sometimes one parent’s living situation may suddenly become contrary to the best interests of the children. Things happen.

Every situation is unique.  Before either parent files a petition to modify his/her visitation schedule, it is wise to sit down with an experienced lawyer to determine the best course action, and to ensure he parents’ rights are protected in the process, especially if you are the parent objecting to the change in visitation.

Orders of Protection

An order of protection is a court order that prohibits the person named from contacting or coming within a certain distance of the victim. A violation of the order of protection can have serious consequences, including criminal prosecution.

A temporary order of protection, or emergency restraining order, may be issued in order to offer a victim immediate protection. In these cases, a hearing will often be held at a later date to determine whether to keep the order in place. At times, a restraining order or order of protection may last for up to 2 years.

In New York, conduct that warrants the issuance of an order of protection can be fought in family and in criminal courts.  Some counties will combine cases involving “domestic violence” into one integrated court.  If you are the subject of an order of protection, it’s important to have an attorney who knows her way around both a criminal courtroom and the family court to best serve your needs.

Property Division

Equitable distribution is the part of the divorce that is all about the “stuff”.  “Stuff” is not a legal term of art, of course, but when I refer to it I mean the assets that were acquired after the date of marriage. Sometimes that can even mean items that one party brought into the marriage, but were transmuted into marital property either intentionally or accidentally.  An experienced lawyer will need to review your particular situation in order to help determine what should be separate and what should be marital assets.