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

I was in Court a few days ago representing a woman whose teenaged son left her home to go live with his father. Several months after the son moved in with his father, the father filed petitions in Court to change the legal custodial arrangement and end his child support payments.

My client was very upset that her son moved out, and to this day does not understand what happened to lead her son to leave. She apparently loves her son very much and wants to understand what went wrong and repair her relationship with him. She did not want to litigate the case in Court and go through the acrimony of a trial with her ex-husband.

Now, it turns out that she had a way to force the dismissal of her ex-husband’s case and move the matter out of Court and into the hands of a professional mediator. It was a strategy that I identified and developed for her and for which there was no possible defense her ex-husband could use to keep his case in Court.

When we arrived in Court and I presented my argument to the Court, the Court was incredulous. So was my adversary. The legal argument was a winner and I fairly easily won my motion to dismiss the case. But the Court and my adversary were apparently both dumbfounded by my client’s decision to win her case on legal grounds and get out of the Courthouse.  Why? Because, in their eyes and from their vantage point, it was not ‘practical.’ Why not? Well, in their eyes, even though my client won the battle, she would lose the war because the father would come back and refile at a later date. When he did so, he would surely prevail. So, according to the very ‘practical’ judge and my adversary, this successful plan of mine only delayed the inevitable, which made no sense at all to them.

To my client, however, that was exactly the point of dismissing the case. It was to get the case out of Court and to a mediator. She wanted the delay, and wanted it very much. Not for its own sake, but to get a chance to deal with her son and her ex-husband in a non-confrontational and helpful setting. From her perspective, this was the practical thing to do.

What is the moral of this story? Divorce law cases are all about perspective and point of view. What seems rational and reasonable to one side appears to be obstinate and confrontational to the other. If you know and accept this, you can use this information to help get through a complicated divorce easier and with less cost in terms of time, money, and energy.

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

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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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