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 fiancé(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 fiancé(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

GrandParent Rights in New York in Family and Supreme Court

I just read an article, in one of those $3.00 magazines, a little guilty pleasure of mine, about the strife between Angelina Jolie and Brad Pitt’s Mother, about Angelina’s parenting skills and choices. Brad Pitt’s mother does not agree with the junk food her grandchildren are allowed to eat, how much the children travel and the instability it causes in their lives, among other things.

Now, we’ll never know if the reported problems between Mrs. Jolie and Brad Pitt’s mother are true, but what I do know, unfortunately all to well, is that the argument between grandparents and their children or son-in-law/daughter-in-law about parenting can be very true and can quickly get out of hand and may even reach the Family or Supreme Court.

So, since I had two grandparents, who practically raised me, I really value the bond and guidance grandparents can provide for their grand children, a relationship completely different than the one a child shares with their own parents, I am a big proponent of Grand Parent rights. Unfortunately, most states do not recognize such rights. I am fortunate to practice in New York, because even though the rights of Grandparents are extremely limited, they are recognized.

Now, before Grandparents may proceed in Family Court to assert their concerns and rights, they must prove standing before the Court. The Grandparent must establish the right to seek visitation and/or to bring up any other issues they may have by coming within the provisions of "death or equitable circumstances" that permit the court to entertain the petition. The Court of Appeals has now liberally defined the "circumstances" or "conditions" under which "equity would see fit to intervene" to grant standing. The Court rejected that the statute or its legislative history eliminated standing when the grandchild lives with fit parents in an intact nuclear family. The Court noted:

The nature and extent of the grandparent-grandchild relationship is the crux of the inquiry. It is not enough that the grandparents allege love and affection for their grandchild. They must establish a meaningful existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention. If the grandparents have done nothing to foster a relationship or demonstrate their attachment to the grandchild, despite opportunities to do so, then they will be unable to establish that conditions exist where "equity would see fit to intervene." The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances."

Once standing is established, then the Court must hear the petition and decide what is in the best interest of the child. Grandparents still have to overcome the established legal presumption that biological parents act in the best interest of the child, and that the biological parent may be angry and upset that the Grandparent brought them to Court or just not believe having the grandparents around is in the best interest of the child.

For a more detailed account of the history of Grandparent rights and sibling rights you can go to: http://www.brandeslaw.com/grandparent_and_nonparent_visit/visitation_rights_grandparents_siblings.htm

Until Next Time,

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