New York Divorce Law Blog : New York Divorce Lawyer & Attorney : Law Offices of David A. Gabay, PC : Serving New York City, Long Island, Suffolk County, Nassau County

Peter King had an article in Saturday’s Newsday discussing the topic of financial planning for second marriages. King interviewed Islandia financial adviser Michael Kresh, who provided a good deal of detailed information about the types of financial issues faced by older couples getting married for the second time.

Kresh’s suggestions for handling pension beneficiary designations, reviewing and updating wills, and handling the use or sale of multiple homes are all ones I provide to my clients.

The one issue I wish King would have explored in his article, though, is how and why couples should discuss a prenuptial agreement. A prenuptial agreement can properly and effectively address property division, pension benefits, real estate division, and some estate planning matters. Other estate planning issues should be dealt with through revisions to your will and other estate planning documents.

In my office, when I advise a client getting married for the second (or third) time concerning a prenuptial agreement, I always try and work closely with his or her financial planner, accountant, and estate planning attorney.

For more information about prenuptial agreements, please contact my office at David@GabayLawFirm.com

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ABC News and Alice Gomstyn published an article online today on Baby Boomers who are ‘encouraging’ their children to sign prenuptial agreements before they get married. For some Boomers, the motivation is to make sure the money and property they leave to their children stays in the family in the event of a divorce. For others, it is a desire to spare the children from the experience of dividing marital property in a divorce action—the process commonly known as ‘equitable distribution.’

Gomstyn’s piece is actually the third item on the subject of prenups to appear in the last few weeks. The first was a long story in the Wall Street Journal’s Weekend section published on July 3, 2010, by Mary Pilon. The second was an online item by Henry Unger of the Atlanta Journal Constitution posted on July 8, 2010.

My recent experiences with drafting prenups for clients is similar to the ones found in the ABC News piece: parents trying to protect assets and inheritances for their children. One of my clients actually was against the idea of a prenup and only sought one when her parents insisted.   Another couple actually had little or no assets themselves but wanted to protect an expected inheritance of a substantial home which belonged to one of the couple’s parents.

If you have questions or comments about prenuptial agreements, please e-mail me at David@GabayLawFirm.com

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An online item appearing on PressBoxOnline.com and written by Joseph Geier discussed the incredibly high divorce rate for wealthy professional athletes (60-80%), as well as some of the ways athletes can help themselves deal with this problem both personally and financially.

Personally, organizations such as Professional Athletes Outreach (PAO) started by Norm Evans and his wife, Bobbe, in 1971, help athletes by teaching players and coaches how to manage their marriages, money, and fame using religious principles.  Evans was an offensive tackle for 14 years, mostly for the Miami Dolphins.

Financially, prenups are a very good way for athletes to protect their finances and their families in the event of divorce. The piece quoted Raoul Felder as saying that "The percentage of pre-nups amongst athletes is appreciably lower compared with non-athletes at the same economic level." 

Now, I have no idea what actually facts, if any, Mr. Felder has in his possession to justify this claim, but the fact remains that every professional athlete earning a substantial income should have a well designed asset protection plan. Such a plan should probably include appropriate estate planning tools such as trusts, business plans (including corporations), and prenuptial agreements for married players and coaches.

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If you are going to have a prenup agreement, there are several key issues which must be discussed and resolved with your soon-to-be spouse:

1.  List all assets, liabilities, income, and expectations of gifts and inheritances.

2.  Describe how premarital debts will be paid.
 

3.  Resolve what happens to your premarital property in reference to appreciation, gains, income, rentals, dividends and proceeds of such property- in the event of death or divorce.
 

4.  Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce.
 

5.  Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from, whether before or after marriage.
 

6.  Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, artwork and jewelry.
 

7.  Figure out alimony, maintenance, or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by law).
 

8.  Detail death benefits, stating what you will provide for in your will.
 

9.  Decide on medical, disability, life or long-term-care insurance coverage.

Of course, there are many other issues and subjects that can or should be included in your prenup, depending on your unique situation.

For more information about the issues that should be included in a prenup, please contact me at David@GabayLawFirm.com or call 631-467-4177.

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A prenuptial agreement is an agreement between two people regarding the acquisition, division, and disposition of their property during their marriage and after the marriage ends.

A prenup can also address any number of non-financial matters, such as: division of household chores, vacation time with or without your spouse, the location or relocation of the marital home, and the physical appearance of your spouse.

Prenups are not for everyone. Some people believe they are inappropriate for personal or religious reasons, and for others they are simply unnecessary for financial reasons.

However, getting a prenuptial agreement is particularly important in these 8 cases:

1. You are much wealthier than your partner. A prenuptial agreement can ensure that

your partner is marrying you for who you are, and not for your money.

2. You earn much more than your partner. A prenuptial agreement can be used in many states to limit the amount of alimony that is payable.

3. You are remarrying. When you remarry, your legal and financial concerns are often very different than in your first marriage. You may have children from a previous marriage, support obligations, and own a home or other significant assets. A prenuptial agreement can ensure that when you pass away, your assets are distributed according to your wishes, and that neither your first family, nor your new family are cut off.

4. Your partner has a high debt load. If you are marrying someone with a significant debt load, and don’t want to be responsible for these debts if your marriage ends, then a prenuptial agreement can help ensure that this does not happen.

5. You own part of a business. Without a prenuptial agreement, when your marriage ends, your spouse could end up owning a share of your business. Your business partners may not want this to happen. A prenup can ensure that your spouse does not become an unwanted partner in your business.

6. To prevent your spouse from overturning your estate plan. A prenuptial agreement can ensure that you estate plan works, and, for instance, ensure that a specific heirloom remains in your family.

7. You are much poorer than your partner. Just as a prenuptial agreement can be used to protect a spouse who is well off, a prenup can also be used to ensure that the partner who is weaker financially is protected.

8. If you plan to quit your job to raise children. Quitting your job will negatively impact your income and your wealth. A prenuptial agreement can ensure that the financial burden of raising the children is shared fairly by both partners.

If you would like more information about prenuptial agreements, please contact my office at David@GabayLawFirm.com or call 631-467-4177

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Like most attorneys, I have struggled for years with the management of client telephone calls. Taking messages, returning calls, and voice-mail ‘tag’ take up large amounts of an attorney’s time, and often leave clients frustrated because their lawyers don’t return theirs calls promptly.

In an effort to get off the phone ‘tag’ merry-go-round, I looked around on the internet for different telephone call management solutions. I eventually came across a lawyer/practice management consultant who recommended that a lawyer give a client a pre-determined appointment to speak with their lawyer on the telephone. 

Using a telephone appointment benefits the client because:

1.      The client knows when he or she will have to be available.

2.      The client knows when the lawyer will be available.

3.      The client can plan his or her schedule, and have time to gather any materials or documents needed for the call.

4.      The client can avoid leaving another voice mail message.

I have been using this system for about 1 month now, and I think it has been very helpful to my clients. I have not had any complaints about this system, yet.

The appointment system also frees up a good deal of time for me and Desiree, my paralegal. This extra time is used to better handle client work. 

If you would like more information about New York divorce and family law, please visit my website at www.GabayLawFirm.com

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 A common problem in my divorce practice arises when one parent wants to take his or her child on a trip which requires a U.S. passport, but the other parent refuses to help obtain a passport for the child. Currently, children under age 16 cannot generally obtain a passport without the consent and assistance of both parents. This is the case regardless of whether one parent has sole legal or residential custody of the child.

Here are some of the ways to deal with the problem of the uncooperative parent:

1.             Include the consent in advance in a written agreement. Almost every divorce of custody case is eventually resolved by a written stipulation of settlement, and those settlements are acknowledged before a Notary Public and ‘so ordered’ by a judge. A little planning and forethought by your attorney can easily resolve the issue of the other parent’s consent. Whenever possible, you should include in your agreement a specific clause for the other parent to consent to the issuing of a passport for the child. The timing of the trip and the details of the travel can be negotiated later, but the issuance of the passport should be agreed to in advance by both parents.

2.             Form DS-3053: This is the State Department’s Consent/special Circumstances form. Here is a link to the form you can download and use. I recently called the State Department to ask how they determined whether special circumstances existed, and was actually told: we decide on a case by case basis. How a parent can plan travel with that kind of uncertainty is just beyond me.

3.             “So Ordered” agreements and the Further Documents Clause: If the agreement or order does not specifically include a passport consent and using DS-3053 is something that is not effective or unavailing for any number of reasons, you can always bring an application in Court to compel the other parent to consent or to punish him or her for contempt; assuming the agreement at issue allows visitation or parenting time without geographical restrictions and has a ‘further documents’ clause. I have successfully used this technique on several cases, and the other parent often appears completely caught off guard when faced with the facts of his or her agreement.

If you would like more information about securing passport consent or other divorce law issues,

please contact me through my website at www.GabayLawFirm.com

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I was recently retained by a medical doctor in a divorce case. When I began discussing the topic of the valuation and distribution of the client’s medical practice, my client told me it had no value because there were no buyers anymore for that type of practice. 

On the way home from our meeting, I began to think some more about the interplay between the classic valuation of a medical practice we have all come to know and love and the real world value a real buyer would place on the practice.

To my mind, truly interesting conflict in a valuation proceeding is the discount to be applied to the capitalized earnings of the practice. Debating the actual income of the practice has its place, as does proving or disproving the validity of the capitalization rate adopted by the valuator. But the most fertile ground for increasing or decreasing the value assigned to the practice is in the area of the discount to full value which should be given for the presence or absence of a meaningful market for the practice.

The reason this line of attack (or defense) is so interesting is because of the numerous real world facts and circumstances which are required to properly determine the discount. It is where attorneys earn their fees: knowing and preparing for the Court all of the facts which actually determine what a willing buyer is prepared to pay for the medical practice at issue.

These facts can range from the sublime (what is the measure of patient loyalty at this particular practice over the past 5 years) to the ridiculous (what does the patient waiting room look like compared to other practices in the area and how that affects patients).

Because of the intensely fact sensitive nature of a medical valuation in a divorce, it is important for the doctor’s attorney to work closely with the appraiser and the doctor. Equally important, in my view, is for the attorney to be able to present credible testimony from an experienced and reputable medical practice broker. 

For more information on divorce in New York, please visit my website at www.GabayLawFirm.com

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I have recently started my own real estate investing business. I buy and sell apartment buildings. As part of that business I have hired attorneys to represent my company and help me structure the business.

My experiences as a client have been a real eye-opener for me.  For the first time in my career, I now know exactly what it is like to be a client—because I am one myself. I have suffered through the stress of finding and hiring a lawyer, the difficulties of fee negotiations, and the frustration of trying unsuccessfully to reach or communicate with your new lawyer.

For me, my experiences as a client will certainly make me a better lawyer because I can now truly understand what it is like to be on the other side of the lawyer’s desk or on the other end of the telephone. With this new understanding, I will be better able to relate to my clients and that will allow me to deliver much better service to my clients.

For more information about divorce or family law in New York, please visit my website at www.GabayLawFirm.com

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