Wednesday, June 2, 2010

PERMISSION TO CHEAT AND PRENUPS

A Couple of Interesting Topics:

First, suing someone because they gave you permission to cheat?

Upper West Side couples counselor Jeffrey Mechanic is being sued by two of his former clients who claim he almost ruined their marriage. He told one of the spouses to have an affair because that spouse was not satisfied at home. The most amazing thing is that the spouse actually had an affair. Now some individuals may agree with the counselor and his belief that if you are unsatisfied at home you should have an affair rather than Divorce your spouse. The counselor’s advice may have even saved certain marriages. One of his former clients states, “he encourages people to have affairs. He makes people feel it’s O.K. He gives them permission to do it.” I mean really?!? Individuals who have serious medical illnesses typically get more than one doctor’s opinion before proceeding with a treatment. Why would any one going to a couple’s counselor who tells them to have an affair not do the same thing before choosing what is right for them to save their marriage.

The real issue here, though, is not whether the counselor gave bad advice, but it is whether a couple should be able to sue a counselor for his prescription if at the end of the day you chose to listen to that counselor. After all, have we forgotten that people have free will and are expected to know the difference between right and wrong?

Second, waiver of interests in retirement assets enforceable within a prenuptial agreement:

In the past, a provision in a prenuptial agreement waiving one’s interest in certain retirement rights was unenforceable. In Richards v. Richards (232 AD2d 303, 303 [1996]), the court had found that under the Employee Retirement Income Security Act 'only a spouse can waive spousal rights to employee plan benefits, that a fiancĂ©(e) is not a spouse, and that such rights, therefore, cannot be effectively waived in a prenuptial agreement.' Therefore, because such rights could only be waived by a “spouse”, if one fiancĂ©(e) wished for the other to waive their interest in such retirement rights they would have to have had a prenuptial agreement and a post-nuptial agreement waiving said rights.

Now, the first department in New York (Manhattan), found, in an opinion by Justice
Andrias, that the parties' prenuptial agreement contained an enforceable waiver of defendant wife's interest in the marital portion of plaintiff husband's retirement assets. Strong v Dubin,--- N.Y.S.2d ----, 2010 WL 1905004 (N.Y.A.D. 1 Dept.).

Judge Andrias pointed out that Prenuptial agreements addressing the ownership, division or distribution of property must be read in conjunction with Domestic Relations Law 236(B), which provides that, unless the parties agree otherwise in a validly executed prenuptial agreement pursuant to section 236(B)(3), upon dissolution of the marriage, marital property must be distributed equitably between the parties, while separate property shall remain separate (see Domestic Relations Law 236[B] [5][a]-[c]). Therefore, the court is distinguishing now between pension benefits as marital property and survivorship rights, which Richards v. Richards above failed to do. So, now a couple can waive pension benefits in a prenuptial agreement; however, survivorship benefits must still be left for a post-nuptial.

Until Next Time,


Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com

2 comments:

  1. Why would any one going to a couple’s counselor who tells them to have an affair not do the same thing before choosing what is right for them to save their marriage.

    ReplyDelete
  2. I am out here to spread this good news to the entire world on how I got my ex husband back.I was going crazy when my husband left me and my two kids for another woman last month, But when i met a friend that introduced me to drehiaghe the great messenger to the oracle of dr ehiaghe healing home,I narrated my problem to dr ehiaghe about how my ex Husband left me and my two kids and also how i needed to get a job in a very big company.He only said to me that i have come to the right place were i will be getting my heart desire without any side effect.He told me what i need to do,After it was been done,24 hours later,My Ex Husband called me on the phone and was saying sorry for living me and the kids before now and one week after my Husband called me to be pleading for forgiveness,I was called for interview in a very big company here in USA were i needed to work as the managing director..I am so happy and overwhelmed that i have to tell this to the entire world to contact dr ehiaghe on his personal email address and get all your problem solve..No problem is too big for him to solve..Contact him direct on: ehiaghespellhome@gmail.com and your problem will be solve.

    ReplyDelete