What should an individual do if they lack a custody order from a Court of law, but wish to relocate with their child, absent consent of the other parent?
Some parents just move and hope for the best, but this is a very bad idea if there is no official custody order on that parent’s behalf. Of course, there are cases in which a parent relocates without a custody order, and they are allowed to stay in the state to which they relocated despite the other parent’s effort to have the child returned. In fact I just represented a woman who relocated with her children to Oklahoma and despite the father’s efforts to have the children returned, my client was granted an order of custody and allowed to stay in the state to which she relocated. The Judge determined it was in the child’s best interest to stay in the state where they had relocated to and for the mother to have sole custody. Of course, the Father is entitled to visitation with the children and the expense of such travel will be split among the parties. So, with some creative litigation strategies, it is possible to relocate successfully without an initial court order, but it is not recommended.
In a recent Nassau County case, when the wife relocated with her children, the court decided that the father shall have custody of the children and the children were ordered to return to New York. The Wife filed for custody of the children, but the court determined that she was not able to prove that it was in the best interest of the children to move, even though the children had stated they wish to live with their mother in the other state. The Court believed that that father tried harder to foster a relationship between the children and their mother and that he could provide more financial stability for the children.
In conclusion, it is a gamble just picking up and relocating with children absent permission of the Court and an order of custody from the Court. If you are ordered to come back to your original state you may not have a home to come back to, and you may lose the physical custody you had as the court may order the children to move back and that may mean having to relinquish the children to the other parent until you are again able to find a suitable place to reside. Moreover, if the children have already moved and have already been enrolled in school, having to leave a school and having go back to the original state and start another school might have a huge emotional impact on the child.
Therefore, be smart about your decision to relocate. My suggestion is speak to the other parent first. If you cannot work out some agreement with the other parent, then either file for Custody or Modification of Custody with the court, and ask the court for permission to relocate before taking any big steps towards relocation. In court, you will most likely have to go through a relocation trial if there is no settlement, so an attorney will be necessary to create the best litigation strategy with you to make relocation a likely possibility.
If you have any thoughts, questions or comments about this post than I would love to hear from you.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com
Monday, August 30, 2010
Thursday, August 26, 2010
Donald Bren Sued for Child Support
Billionaire real estate mogul Donald Bren is being sued in the California Courts by his grown children for child support. 22 year old Christie Bren and 18 year old David Bren have sued him for $400,000 per month in retroactive child support, dating back to the date they were born. His adult children are now asking for $100 Million dollars.
The strangest part of the case is that Donald Bren and his ex-lover had drafted and executed four different contracts over the years for the support of the children by Mr. Bren. The last agreement provided for $18,000 per month for both children.
So, it will be interesting to see what the Court will decide. California has different law then New York, but I would be surprised if the children receive anything other than money not paid and owed as a result of the past private agreements executed on the children’s behalf.
In New York, the Court would note that the Mother could have come to Court and had a court order child support. Whatever her motives were for not doing so, she chose not to in this case. In fact, the parents did exactly what the New York Courts prefer they do, they exercised their right to make a written formal contract between themselves agreeing to a certain amount suitable for the children. The Court in New York would also note that the oldest child, Christie Bren, is already 22 years old and thereby barred from seeking any further child support. In New York child support is owed up to the age of 21 regardless of whether the children are in college or not, unless agreed upon differently by the parents.
With regard to the youngest child, the Court in New York would either decide that the father has to abide by the support agreement until the child is 21, or decide a different amount based on actual income of Mr. Bren and make a child support order until he turns 21. However, in California I believe parents only must pay child support until 18, so I really don’t understand why these children would receive any more child support.
Should the laws be different for parents who are extremely rich or protect children of extremely rich parents more than other children? Should these children get a penny more than the money not paid under the parent’s private agreement up to the age of 18, or age specified in the agreement – Not in my opinion.
What do you think? I would love to hear from you.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ Www.Dukhanlaw.Com
The strangest part of the case is that Donald Bren and his ex-lover had drafted and executed four different contracts over the years for the support of the children by Mr. Bren. The last agreement provided for $18,000 per month for both children.
So, it will be interesting to see what the Court will decide. California has different law then New York, but I would be surprised if the children receive anything other than money not paid and owed as a result of the past private agreements executed on the children’s behalf.
In New York, the Court would note that the Mother could have come to Court and had a court order child support. Whatever her motives were for not doing so, she chose not to in this case. In fact, the parents did exactly what the New York Courts prefer they do, they exercised their right to make a written formal contract between themselves agreeing to a certain amount suitable for the children. The Court in New York would also note that the oldest child, Christie Bren, is already 22 years old and thereby barred from seeking any further child support. In New York child support is owed up to the age of 21 regardless of whether the children are in college or not, unless agreed upon differently by the parents.
With regard to the youngest child, the Court in New York would either decide that the father has to abide by the support agreement until the child is 21, or decide a different amount based on actual income of Mr. Bren and make a child support order until he turns 21. However, in California I believe parents only must pay child support until 18, so I really don’t understand why these children would receive any more child support.
Should the laws be different for parents who are extremely rich or protect children of extremely rich parents more than other children? Should these children get a penny more than the money not paid under the parent’s private agreement up to the age of 18, or age specified in the agreement – Not in my opinion.
What do you think? I would love to hear from you.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ Www.Dukhanlaw.Com
Tuesday, August 24, 2010
NEW YORK DIVORCE LAW: DIVORCE IN HARD ECONOMIC TIMES
So, it seems to me that the hard economic times are causing more and more couples to get divorced. Even though articles and TV specials are claiming that individuals are staying together because they cannot afford to get a divorce, it seems as though the Recession is having the exact opposite effect.
In fact, based on studies Nobel prize winner Becker conducted back in 1977 and published in the Journal of Political Economy, couples that experience any sudden significant and unexpected change in income — positive or negative — are at risk of divorce.
The fact though remains that divorce is never easy and during an economic downturn it can be ever more difficult. Now when couples are seriously considering divorce, it is more important than ever for them to carefully consider their options and think about their financial situation in its entirety. In the past a couple’s home was their largest asset, but now with the fall of the housing market, the loss of jobs and the steadily growing rate of foreclosures, couples are loosing their once most relied upon investment. Recently I witnessed a couple whose worth at the beginning of the marriage was estimated at 15 Million dollars, split the 1 Million left after all their debts were paid off and losses added up at the conclusion of their divorce.
Alarmingly, even though divorces are on the rise and maneuvering through the process is becoming increasingly harder due to the economic crisis, there are more and more articles and stories coming out about individuals representing themselves during a divorce. I cannot even tell you how many individuals come to me because they represented themselves in a divorce, and now seek assistance unraveling the mess that was made out of their assets and life. Moreover, individuals come to me who attempted to draft uncontested divorce documents and find it impossible to get them signed by the Judge, because they are complicated and one must know the applicable laws to complete them properly. Others come to me because they had a service draft their uncontested divorce documents, those that charge $200 and promise to do a quick job, which messed up and now the client has lots certain assets, or even worse, rights to their children.
Matrimonial and family law is an ever-changing landscape that even lawyers need to brush up on every year. In fact, continuing legal education is mandatory in order for lawyers to maintain their licenses to practice law. The lure for most to represent themselves is a financial one, obviously they don’t have to spend money on an attorney, however, such a choice may prove to be much more expensive in the long run.
There are ways to cut costs in a divorce. One of the biggest cost cutters is removing emotions from the divorce arena. If you and your soon to be ex-spouse agree on as many elements of property division and support as possible then your divorce will be that much smoother. Accept the idea that compromise will likely shorten the process and consider mediation or collaborative law, instead of litigation, as dispute resolution options. However, don’t make the mistake of compromising without knowing your legal rights and having an attorney advise you before you begin mediation or any other non-litigious dispute resolution option, and then review any agreement made afterwards.
You do not want to be one of those sad individuals who end up losing custody of their kids because they were ignorant of the law.
Find a lawyer who is easy to communicate with, who is honest, who won’t just cater to your wants but will be upfront about the realities of the situation and who is willing to work with you to come up with a fee schedule that works for you. That is the best way to ensure you get the most bang for your buck and the best deal with your ex-spouse.
IF you have any questions, comments, etc...as always your thoughts are much appreciated!! I would LOVE to hear from you!
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ WWW. DukhanLaw.COM
In fact, based on studies Nobel prize winner Becker conducted back in 1977 and published in the Journal of Political Economy, couples that experience any sudden significant and unexpected change in income — positive or negative — are at risk of divorce.
The fact though remains that divorce is never easy and during an economic downturn it can be ever more difficult. Now when couples are seriously considering divorce, it is more important than ever for them to carefully consider their options and think about their financial situation in its entirety. In the past a couple’s home was their largest asset, but now with the fall of the housing market, the loss of jobs and the steadily growing rate of foreclosures, couples are loosing their once most relied upon investment. Recently I witnessed a couple whose worth at the beginning of the marriage was estimated at 15 Million dollars, split the 1 Million left after all their debts were paid off and losses added up at the conclusion of their divorce.
Alarmingly, even though divorces are on the rise and maneuvering through the process is becoming increasingly harder due to the economic crisis, there are more and more articles and stories coming out about individuals representing themselves during a divorce. I cannot even tell you how many individuals come to me because they represented themselves in a divorce, and now seek assistance unraveling the mess that was made out of their assets and life. Moreover, individuals come to me who attempted to draft uncontested divorce documents and find it impossible to get them signed by the Judge, because they are complicated and one must know the applicable laws to complete them properly. Others come to me because they had a service draft their uncontested divorce documents, those that charge $200 and promise to do a quick job, which messed up and now the client has lots certain assets, or even worse, rights to their children.
Matrimonial and family law is an ever-changing landscape that even lawyers need to brush up on every year. In fact, continuing legal education is mandatory in order for lawyers to maintain their licenses to practice law. The lure for most to represent themselves is a financial one, obviously they don’t have to spend money on an attorney, however, such a choice may prove to be much more expensive in the long run.
There are ways to cut costs in a divorce. One of the biggest cost cutters is removing emotions from the divorce arena. If you and your soon to be ex-spouse agree on as many elements of property division and support as possible then your divorce will be that much smoother. Accept the idea that compromise will likely shorten the process and consider mediation or collaborative law, instead of litigation, as dispute resolution options. However, don’t make the mistake of compromising without knowing your legal rights and having an attorney advise you before you begin mediation or any other non-litigious dispute resolution option, and then review any agreement made afterwards.
You do not want to be one of those sad individuals who end up losing custody of their kids because they were ignorant of the law.
Find a lawyer who is easy to communicate with, who is honest, who won’t just cater to your wants but will be upfront about the realities of the situation and who is willing to work with you to come up with a fee schedule that works for you. That is the best way to ensure you get the most bang for your buck and the best deal with your ex-spouse.
IF you have any questions, comments, etc...as always your thoughts are much appreciated!! I would LOVE to hear from you!
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ WWW. DukhanLaw.COM
Thursday, August 19, 2010
Domestic Abuse Victims Granted Asylum in US
Recently the Obama administration granted asylum to a women from Mexico who was severely battered and sexually abused by her husband. In deciding whether or not to grant the women asylum, the standard governing whether or not a domestic abuse victim should be granted asylum was clarified.
A legal standard is what an individual has to prove to the Court in order to be granted the relief sought. So, in order for the Mexican women to be granted asylum she had to prove that she could not expect the Mexican authorities to protect her from the violence and murder threats of her attacker, and that she could not safely relocate any where in the country to escape him.
During decades of marriage, the husband raped the women and once tried to set her on fire. Routinely, cases such as this one were dismissed by immigration judges. However, after the above referenced case, the Department of Homeland Security recognized that asylum should be available to women whose governments won’t protect them from domestic abuse.
The Mexican women had to prove that she had turned to the Courts in Mexico for protection for herself and her two children, but that no help was offered. In fact, one Judge had offered to help her if she would have sex with him. Moreover, her lawyers proved that she could not safely move any where else in Mexico as her husband would always be able to track her down via the internet. In Mexico a school teacher, which was the women’s occupation, has to post their position in a public registry.
Even though this case marks a shift in immigration policy in the United States, clarifying 15 years of arcane and tangled litigation on such issues, it does not mean that it will lead to any new surge of refugees in the United States. The case shows what one has to prove to make a case for asylum, but does not mean every case will be successful.
Finally, it would be interesting to note that asylum was also granted to her two sons, now 22 and 20 years old.
I’m not an immigration attorney, so I do not deal with asylum applications, but I do represent plenty of domestic violence victims in Family Court and am very passionate about and committed to assisting victims of domestic abuse and their children obtain protection from their attacker. So, if you need assistance or know of any one who does I would be more than happy to help. Also, if it is an asylum case, then even if I can’t help you get asylum I know of an amazing immigration attorney in New York who can.
As always, if you find this post interesting or if you have any thoughts or opinions about the above post then please share them with me and the other readers.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com
A legal standard is what an individual has to prove to the Court in order to be granted the relief sought. So, in order for the Mexican women to be granted asylum she had to prove that she could not expect the Mexican authorities to protect her from the violence and murder threats of her attacker, and that she could not safely relocate any where in the country to escape him.
During decades of marriage, the husband raped the women and once tried to set her on fire. Routinely, cases such as this one were dismissed by immigration judges. However, after the above referenced case, the Department of Homeland Security recognized that asylum should be available to women whose governments won’t protect them from domestic abuse.
The Mexican women had to prove that she had turned to the Courts in Mexico for protection for herself and her two children, but that no help was offered. In fact, one Judge had offered to help her if she would have sex with him. Moreover, her lawyers proved that she could not safely move any where else in Mexico as her husband would always be able to track her down via the internet. In Mexico a school teacher, which was the women’s occupation, has to post their position in a public registry.
Even though this case marks a shift in immigration policy in the United States, clarifying 15 years of arcane and tangled litigation on such issues, it does not mean that it will lead to any new surge of refugees in the United States. The case shows what one has to prove to make a case for asylum, but does not mean every case will be successful.
Finally, it would be interesting to note that asylum was also granted to her two sons, now 22 and 20 years old.
I’m not an immigration attorney, so I do not deal with asylum applications, but I do represent plenty of domestic violence victims in Family Court and am very passionate about and committed to assisting victims of domestic abuse and their children obtain protection from their attacker. So, if you need assistance or know of any one who does I would be more than happy to help. Also, if it is an asylum case, then even if I can’t help you get asylum I know of an amazing immigration attorney in New York who can.
As always, if you find this post interesting or if you have any thoughts or opinions about the above post then please share them with me and the other readers.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com
Tuesday, August 17, 2010
NEW YORK DIVORCE AND FAMILY LAW: NO-FAULT DIVORCE PASSED
New York is officially the last state in the United States of America to adopt No-Fault Divorce Law. As of Sunday, when the governor passed a No-Fault Divorce option, spouses are allowed to terminate their marriages within six months of stating under oath that their unions are “irretrievably” broken.
The new law will take effect on October 12, 2010, bringing New York’s divorce law into the 21st century, as Governor Patterson put it.
Due to the opposition of certain organizations, churches and politicians arguing that certain wives, especially those in long-standing marriages in which they did not work or have other significant outside sources of income, would be at a disadvantage during divorce proceedings when facing spouses with more resources to procure better legal help. Even though it is not clear how the situation of one spouse being able to procure better legal help was any different when there was no “No-Fault” divorce in New York, some backers said that they could not endorse the concept without the concurrent passage of a bill setting standards for temporary maintenance for non-monied spouses.
As a result of these arguments, a bill was also signed into law, which stipulates that judges are to consider a host of factors when setting maintenance levels, from the years a couple was together to the life style to which they had become accustomed and the spouses' prospects of employment. Judges also will be allowed to consider factors they regard as relevant that are not mentioned in the new law.
The Governor also signed a third bill that would require judges to grant interim counsel fees to non-monied spouses, in order to get more resources into the hands of spouses who need them at earlier stages of divorce proceedings.
So, it shall remain to be seen if the two bills will be passed, but for now it is certain that as of October 12, 2010, New York will officially become a No-Fault Divorce state.
If you have any questions or comments please feel free to join the discussion!
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com
The new law will take effect on October 12, 2010, bringing New York’s divorce law into the 21st century, as Governor Patterson put it.
Due to the opposition of certain organizations, churches and politicians arguing that certain wives, especially those in long-standing marriages in which they did not work or have other significant outside sources of income, would be at a disadvantage during divorce proceedings when facing spouses with more resources to procure better legal help. Even though it is not clear how the situation of one spouse being able to procure better legal help was any different when there was no “No-Fault” divorce in New York, some backers said that they could not endorse the concept without the concurrent passage of a bill setting standards for temporary maintenance for non-monied spouses.
As a result of these arguments, a bill was also signed into law, which stipulates that judges are to consider a host of factors when setting maintenance levels, from the years a couple was together to the life style to which they had become accustomed and the spouses' prospects of employment. Judges also will be allowed to consider factors they regard as relevant that are not mentioned in the new law.
The Governor also signed a third bill that would require judges to grant interim counsel fees to non-monied spouses, in order to get more resources into the hands of spouses who need them at earlier stages of divorce proceedings.
So, it shall remain to be seen if the two bills will be passed, but for now it is certain that as of October 12, 2010, New York will officially become a No-Fault Divorce state.
If you have any questions or comments please feel free to join the discussion!
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com
Thursday, August 12, 2010
NEW YORK DIVORCE AND FAMILY LAW: FIRST SKYPE DAD
When going through a divorce, and when visitation with your children is at issue, can technology substitute personal contact? According to a New York Supreme Court Justice it can. A Long Island father just lost his two children, a 9 year old son and 6 year old daughter, to Florida as long as they communicate on Skype.
In the state of New York one parent may relocate with their children to another state if a Judge determines it is in the best interest of the children to move. It is always considered contrary to a child’s best interest to be far away from one parent, but when the custodial parent is struggling it might be best to allow that parent to move.
In the case referred to above, the mother of the children, an unemployed book keeper, had asked the court for permission to move their children to her parent’s home in Florida. The mother and father were married for eight years and their house is in foreclosure. The father objected to his former wife’s request, but the Judge decided to grant her permission as long as the new home has a web cam and Skype. The father will become the nation’s first court-sanctioned Skype dad. The Judge ordered that the father be able to chat with the children three times a week for at least one hour at a time.
Now, if the mother could not afford to live in Long Island, the father a construction worker could not support her and the children, and she had family in Florida who could help her, it is understandable why a Judge would decide the mother should be allowed to move with the children. However, is skype the best avenue to take when deciding the best means of fostering a relationship with their father?
On the one hand, the children have to sit and stare at a computer screen for three hours a week. Also, it is not known if the Skype contact is in addition to or in lieu of real personal visits and how many the father will have during the year. Also, will it be harder emotionally and psychologically on the children having their dad merely on a computer screen for a few hours a week? There are so many unknowns due to the fact that this order is the first of its kind.
On the other hand, most fathers whose children move out of state get holidays, school breaks and summers with their children. They also get phone contact. In this standard scenario it’s easy for the parent who moved the children to obstruct the other parent’s relationship with the children, by not allowing phone calls, failing to send the child for their visit claiming money woes, etc. In the case referred to above the Judge made it mandatory that the children chat with the father three times a week for an hour each time so the mother and her family, if they so wished, could not stop the father from speaking with and seeing his children at least through Skype. This may be huge for the father as he will actually be seeing his children and speaking to them more than most fathers, it’s just that he’ll be doing it over a computer screen.
So, we won’t know the effects of such a ruling for quite some time, but at least the father will be able to do his best at building a relationship with his children, even if it is over a Skype.
Would love to hear your thoughts and opinions on the Court ruling, so please comment and join in the conversation.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com
In the state of New York one parent may relocate with their children to another state if a Judge determines it is in the best interest of the children to move. It is always considered contrary to a child’s best interest to be far away from one parent, but when the custodial parent is struggling it might be best to allow that parent to move.
In the case referred to above, the mother of the children, an unemployed book keeper, had asked the court for permission to move their children to her parent’s home in Florida. The mother and father were married for eight years and their house is in foreclosure. The father objected to his former wife’s request, but the Judge decided to grant her permission as long as the new home has a web cam and Skype. The father will become the nation’s first court-sanctioned Skype dad. The Judge ordered that the father be able to chat with the children three times a week for at least one hour at a time.
Now, if the mother could not afford to live in Long Island, the father a construction worker could not support her and the children, and she had family in Florida who could help her, it is understandable why a Judge would decide the mother should be allowed to move with the children. However, is skype the best avenue to take when deciding the best means of fostering a relationship with their father?
On the one hand, the children have to sit and stare at a computer screen for three hours a week. Also, it is not known if the Skype contact is in addition to or in lieu of real personal visits and how many the father will have during the year. Also, will it be harder emotionally and psychologically on the children having their dad merely on a computer screen for a few hours a week? There are so many unknowns due to the fact that this order is the first of its kind.
On the other hand, most fathers whose children move out of state get holidays, school breaks and summers with their children. They also get phone contact. In this standard scenario it’s easy for the parent who moved the children to obstruct the other parent’s relationship with the children, by not allowing phone calls, failing to send the child for their visit claiming money woes, etc. In the case referred to above the Judge made it mandatory that the children chat with the father three times a week for an hour each time so the mother and her family, if they so wished, could not stop the father from speaking with and seeing his children at least through Skype. This may be huge for the father as he will actually be seeing his children and speaking to them more than most fathers, it’s just that he’ll be doing it over a computer screen.
So, we won’t know the effects of such a ruling for quite some time, but at least the father will be able to do his best at building a relationship with his children, even if it is over a Skype.
Would love to hear your thoughts and opinions on the Court ruling, so please comment and join in the conversation.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com
Thursday, August 5, 2010
NEW YORK DIVORCE AND FAMILY LAW: A LENGTHY SEPARATION
I read an interesting article in the New York Times recently about couples who stay separated indefinitely instead of getting divorced. The authors calls such couples the Un-Divorced.
As a Divorce attorney in the State of New York, and the founder of the Law Offices of Helen M. Dukhan, Esq., LL.M., practicing solely family, matrimonial and divorce law, I typically do not hear about such couples, as most individuals retain my services so that they can get divorced as soon as possible. However, when couples who have been through a lengthy separation seek my services to finally get a divorce, they are, in my experience, typically worse off than if they would have been divorced upon separation. The article makes great sense as to why some couples may choose to forego getting a divorce and decide to just remain separated, but also mentions the dangers of doing so. After recapping the article, I will explain how a couple can protect themselves in case a lengthy separation does turn into a divorce.
The author of the article lists the following reasons that individuals are staying separated instead of getting divorced, the reasons being practical and financial, not familial:
a) Some couples believe that they are better off not bringing in lawyers and causing anger, they wish to maintain the status quo without causing any problems for each other or gossip depending on their social status.
b) Health Care: insurance costs are keeping some couples married as one spouse may not be able to afford health care and have illnesses requiring they stay covered by their spouse’s health insurance to obtain treatment.
c) Financial benefits: according to federal law a spouse qualifies for the other’s social security benefits if the couple has been married for a decade.
d) The Recession: real estate market is bad and at an all time low so couples chose not to sell their home and keep living together in the same house because they cannot afford for one to move out while carrying the cost of the marital residence.
e) Best Interest of Children: some couples state that they believe that staying separated and attempting to co-parent is in the best interest of their children. They still attend family functions together and send out cards together and attend their children’s school events together, but they just can’t live together.
The article also suggests that there are possible problems with staying separated rather than getting a divorce:
a) Marital Debt: even if separated a married couple is still bound to each other financially. So, if one spouse decides to go on a gambling trip and goes into serious debt, the other spouse may still be responsible for half of that debt.
b) Asset depletion: If you wait to long to get divorced the other spouse may have depleted all of their assets. It may have been much more profitable for both spouses to get a divorce once they separated than staying separated for many years.
c) More confusing for children: even though some couples state that they stayed separated for the sake of their children, not getting a divorce may cause more confusion for the children. Some couples still try to co-parent and remain married while living in different homes and having different relationships. For children of a young age it is difficult to understand why their mommy and daddy unlike other parents are living separate lives while still maintaining that they are married. For some children it may be a burden to keep quiet about a separation if their parents are trying to preserve their appearance of still being married for social status reasons.
I was at a networking event last night, where a woman I spoke to told me that she and her husband had been separated for seven years and that she was just beginning to think about getting a divorce. She explained that she has remained on her husband’s health insurance, they have filed joint taxes, and their child were young at the time, so they just decided getting divorced was not their first priority. Then, I met yet another women who explained to me that no matter what couples decide to do she believes that both spouses should go see a divorce attorney every six months or so to reevaluate their rights at that point, if they are going to remain separated.
I agree with every thing the author states, the reasons for staying married and the problems that may ensue from a lengthy separation; however, there is no mention in the article of the possibility of a separation agreement.
I draft separation agreements for couples all of the time, not because they wish to have a lengthy separation but as a grounds for their divorce in the state of New York (if you remain separated pursuant to a legal separation agreement filed with the court for a year that is ground for divorce). For couples wishing to remain separated for a long time a separation agreement legally filed with the court might protect the couple from some of the dangers of a lengthy separation. As just one example of the protection such a separation agreement might provide, it might states that as of a certain date each party’s debt is their own.
It is understandable that some couples may not want to involve lawyers or the court and may believe that staying separated works for them, but as a divorce attorney who witnesses the breakdown of the most cordial and loving relationships, a couple should protect themselves even if they are deciding to stay in a lengthy separation and not get divorced.
If you would like to read the article go to: http://www.nytimes.com/2010/08/01/fashion/01Undivorced.html?pagewanted=3&_r=1&ref=fashion
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com
As a Divorce attorney in the State of New York, and the founder of the Law Offices of Helen M. Dukhan, Esq., LL.M., practicing solely family, matrimonial and divorce law, I typically do not hear about such couples, as most individuals retain my services so that they can get divorced as soon as possible. However, when couples who have been through a lengthy separation seek my services to finally get a divorce, they are, in my experience, typically worse off than if they would have been divorced upon separation. The article makes great sense as to why some couples may choose to forego getting a divorce and decide to just remain separated, but also mentions the dangers of doing so. After recapping the article, I will explain how a couple can protect themselves in case a lengthy separation does turn into a divorce.
The author of the article lists the following reasons that individuals are staying separated instead of getting divorced, the reasons being practical and financial, not familial:
a) Some couples believe that they are better off not bringing in lawyers and causing anger, they wish to maintain the status quo without causing any problems for each other or gossip depending on their social status.
b) Health Care: insurance costs are keeping some couples married as one spouse may not be able to afford health care and have illnesses requiring they stay covered by their spouse’s health insurance to obtain treatment.
c) Financial benefits: according to federal law a spouse qualifies for the other’s social security benefits if the couple has been married for a decade.
d) The Recession: real estate market is bad and at an all time low so couples chose not to sell their home and keep living together in the same house because they cannot afford for one to move out while carrying the cost of the marital residence.
e) Best Interest of Children: some couples state that they believe that staying separated and attempting to co-parent is in the best interest of their children. They still attend family functions together and send out cards together and attend their children’s school events together, but they just can’t live together.
The article also suggests that there are possible problems with staying separated rather than getting a divorce:
a) Marital Debt: even if separated a married couple is still bound to each other financially. So, if one spouse decides to go on a gambling trip and goes into serious debt, the other spouse may still be responsible for half of that debt.
b) Asset depletion: If you wait to long to get divorced the other spouse may have depleted all of their assets. It may have been much more profitable for both spouses to get a divorce once they separated than staying separated for many years.
c) More confusing for children: even though some couples state that they stayed separated for the sake of their children, not getting a divorce may cause more confusion for the children. Some couples still try to co-parent and remain married while living in different homes and having different relationships. For children of a young age it is difficult to understand why their mommy and daddy unlike other parents are living separate lives while still maintaining that they are married. For some children it may be a burden to keep quiet about a separation if their parents are trying to preserve their appearance of still being married for social status reasons.
I was at a networking event last night, where a woman I spoke to told me that she and her husband had been separated for seven years and that she was just beginning to think about getting a divorce. She explained that she has remained on her husband’s health insurance, they have filed joint taxes, and their child were young at the time, so they just decided getting divorced was not their first priority. Then, I met yet another women who explained to me that no matter what couples decide to do she believes that both spouses should go see a divorce attorney every six months or so to reevaluate their rights at that point, if they are going to remain separated.
I agree with every thing the author states, the reasons for staying married and the problems that may ensue from a lengthy separation; however, there is no mention in the article of the possibility of a separation agreement.
I draft separation agreements for couples all of the time, not because they wish to have a lengthy separation but as a grounds for their divorce in the state of New York (if you remain separated pursuant to a legal separation agreement filed with the court for a year that is ground for divorce). For couples wishing to remain separated for a long time a separation agreement legally filed with the court might protect the couple from some of the dangers of a lengthy separation. As just one example of the protection such a separation agreement might provide, it might states that as of a certain date each party’s debt is their own.
It is understandable that some couples may not want to involve lawyers or the court and may believe that staying separated works for them, but as a divorce attorney who witnesses the breakdown of the most cordial and loving relationships, a couple should protect themselves even if they are deciding to stay in a lengthy separation and not get divorced.
If you would like to read the article go to: http://www.nytimes.com/2010/08/01/fashion/01Undivorced.html?pagewanted=3&_r=1&ref=fashion
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com
Tuesday, August 3, 2010
NEW YORK DIVORCE AND FAMILY LAW: DIVORCE PROOF YOUR BUSINESS
When starting a business the last thing most individuals think of is protecting that business in case of divorce. Also, when falling in love and deciding to get married, most people actually over look discussing the possible consequences a divorce may have on the business one spouse owns. However, a business may be the most valuable asset within a marriage, worth more than homes, cars, or stock portfolios.
The moral of this blog post is so important and so pertinent to any business owner that I was invited to give a lecture to business students at Montclair University about how to protect a business in case of divorce, and was more than honored and happy to do so.
Ways to protect a business in case of divorce:
1) Prenuptial Agreements
2) Postnuptial Agreements
3) Language in a business/partnership agreement
Prenuptial and Postnuptial Agreements:
These sorts of agreements have a bad reputation and stigma that are attached to them. After all, traditionally it was held that when two individuals get married their ideology is what is mine is yours and what is yours is mine. However, any business owner knows that starting and operating a business is extremely hard and time consuming and that a tremendous amount of effort, energy and sweat goes into the undertaking. So, why shouldn’t you protect your time, energy and effort?? No one goes into a marriage believing that it will end, but over half of them do, so the possibility cannot be ignored and should be planned for, especially for business owners. Moreover, the non-owner spouse is also protected by such an agreement, since naturally the non-owner spouse helps the business in their own way, by making sure there is a meal on the table, taking care of the kids while the other partner runs their business, or any other effort they put into a family so that the business owner spouse can devote their time to the business
The law relies on words and the language of a prenuptial agreement must be drafted by an attorney specializing in matrimonial law, so that the correct language is used and that the business is properly protected.
If an individual began a business after marriage, then a postnuptial agreement should be considered. There is no difference between a prenuptial and postnuptial agreement, except that a prenuptial agreement is one drafted prior to marriage and a postnuptial is one drafted after marriage. In fact, in the past certain retirement assets could only be waived by a spouse, so if one had a prenuptial waiving the right to those assets, they also had to have a postnuptial waiving the same assets.
Bottom line is that both a pre or post nuptial agreement are contracts between two individuals, premised on the consideration of their marriage. They must be done voluntarily without any duress, fraud, or concealment. Each individual must have full knowledge of all assets, their worth and what they are gaining or giving up prior to executing either agreement for the agreement to be considered fair and recognized by the Court of Law. The best part of having such an agreement is that any terms of the agreement override local law, in New York being equitable distribution. Without having said agreement the business would be split up by the Court any way they see fit and fair.
Language In Business/Partnership Agreement:
Divorce can become emotionally and financially devastating, not just for the divorcing couple and their family, but also for the business's employees and co-owners. In the past there have been cases of the non-owner spouse taking over enough interest of a business to control certain decisions of that business and obtain an active ownership interest themselves. So, business agreements and contracts, as well any articles of incorporation, should be reviewed and the right language inserted by a legal professional to make sure they also protect every one who has an interest in case of one partner or co-owner’s divorce.
If a business is a multi-generational family business that business may consider a Family Limited Partnership arrangement. These versatile estate transfer tools can specify that business interests are not subject to division in divorce.
Also, a spouse's interest in a partnership or corporation can be preserved by including restrictions on transferability.
This means, for example, that a shareholder cannot transfer half of his/her stock to a divorcing spouse even if that spouse is treated as having a right to that interest. The non-owner spouse can receive some assets, but not the business interest itself.
So, protect your business, don’t let a divorce wreck the biggest project and undertaking of your life.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. at www.DukhanLaw.com
The moral of this blog post is so important and so pertinent to any business owner that I was invited to give a lecture to business students at Montclair University about how to protect a business in case of divorce, and was more than honored and happy to do so.
Ways to protect a business in case of divorce:
1) Prenuptial Agreements
2) Postnuptial Agreements
3) Language in a business/partnership agreement
Prenuptial and Postnuptial Agreements:
These sorts of agreements have a bad reputation and stigma that are attached to them. After all, traditionally it was held that when two individuals get married their ideology is what is mine is yours and what is yours is mine. However, any business owner knows that starting and operating a business is extremely hard and time consuming and that a tremendous amount of effort, energy and sweat goes into the undertaking. So, why shouldn’t you protect your time, energy and effort?? No one goes into a marriage believing that it will end, but over half of them do, so the possibility cannot be ignored and should be planned for, especially for business owners. Moreover, the non-owner spouse is also protected by such an agreement, since naturally the non-owner spouse helps the business in their own way, by making sure there is a meal on the table, taking care of the kids while the other partner runs their business, or any other effort they put into a family so that the business owner spouse can devote their time to the business
The law relies on words and the language of a prenuptial agreement must be drafted by an attorney specializing in matrimonial law, so that the correct language is used and that the business is properly protected.
If an individual began a business after marriage, then a postnuptial agreement should be considered. There is no difference between a prenuptial and postnuptial agreement, except that a prenuptial agreement is one drafted prior to marriage and a postnuptial is one drafted after marriage. In fact, in the past certain retirement assets could only be waived by a spouse, so if one had a prenuptial waiving the right to those assets, they also had to have a postnuptial waiving the same assets.
Bottom line is that both a pre or post nuptial agreement are contracts between two individuals, premised on the consideration of their marriage. They must be done voluntarily without any duress, fraud, or concealment. Each individual must have full knowledge of all assets, their worth and what they are gaining or giving up prior to executing either agreement for the agreement to be considered fair and recognized by the Court of Law. The best part of having such an agreement is that any terms of the agreement override local law, in New York being equitable distribution. Without having said agreement the business would be split up by the Court any way they see fit and fair.
Language In Business/Partnership Agreement:
Divorce can become emotionally and financially devastating, not just for the divorcing couple and their family, but also for the business's employees and co-owners. In the past there have been cases of the non-owner spouse taking over enough interest of a business to control certain decisions of that business and obtain an active ownership interest themselves. So, business agreements and contracts, as well any articles of incorporation, should be reviewed and the right language inserted by a legal professional to make sure they also protect every one who has an interest in case of one partner or co-owner’s divorce.
If a business is a multi-generational family business that business may consider a Family Limited Partnership arrangement. These versatile estate transfer tools can specify that business interests are not subject to division in divorce.
Also, a spouse's interest in a partnership or corporation can be preserved by including restrictions on transferability.
This means, for example, that a shareholder cannot transfer half of his/her stock to a divorcing spouse even if that spouse is treated as having a right to that interest. The non-owner spouse can receive some assets, but not the business interest itself.
So, protect your business, don’t let a divorce wreck the biggest project and undertaking of your life.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. at www.DukhanLaw.com
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