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
Showing posts with label Marriage. Show all posts
Showing posts with label Marriage. Show all posts
Wednesday, June 2, 2010
Wednesday, May 19, 2010
25 Tips to a Happy Marriage
25 TIPS FOR A HAPPY MARRIAGE:
Now, I know the last person you expect marriage advice from is a divorce attorney, I mean, it does not exactly drum up business, but deep down inside I do value and respect the institution of marriage and hope that every one succeeds in their marriage. Also, most of the blog posts are about serious legal issues, so I thought a more light hearted post would be a nice change.
Directly from an article in the New York Post: Experts provide their 25 WAY TO A HAPPY MARRIAGE:
1. Don’t roll your eyes at your Mate: It shows Contempt.
2. Prepare for Temptation: Train yourself not to cheat.
3. You don’t have to like every quality your partner has, just decide whether you can live with it.
4. Don’t agree to anything if you don’t mean it: Don’t just say “yes” to avoid conflict.
5. Decide as a couple how you are going to compromise: Don’t always try to find a middle ground, but if something means more to one partner do it their way.
6. Make sure you really want to be married.
7. Stick to the Present and don’t bring up past conflicts.
8. Follow the 5-1 Rule – 5 Compliments to every one criticism.
9. How you fight is more important than what you fight over: Don’t start with name calling or criticisms. Speak in low quiet voices, look each other in the eye, sit or stand at the same level and use open questions.
10. Don’t interrupt: When discussing anything don’t interrupt each other, wait and listen until that person finishes.
11. Have Sex: Make time for it even if you don’t feel like it or are tired.
12. Avoid the words “never” and “always”: it doesn’t let a partner breath when they are told they are always doing something, or never do something.
13. Watch out for these types of marriages: a) one partner is eager to discuss problems, while the other withdraws from conflict; b) individuals who have tied the not-but live almost as if they were single; c) emotionally volatile marriages frequently marked by great sex but really awful fights.
14. Be prepared to split household chores: or take one completely if that works for your marriage.
15. Only one person gets to have a tantrum at a time: whoever starts the tantrum has dibs. Even a sane adult needs to act like a 2 year old sometimes.
16. Be prepared to talk about finances without judgment.
17. Be flexible with gender roles: like if a mother works and the father stays at home to take care of the children.
18. Create a world that the two of you share: do things together as much as possible.
19. Respect your partner’s territory: don’t speak for your partner, etc.
20. Hold Hands – lessens stress
21. Have high standards for each other - refuse to accept negative or hurtful behavior from the start.
22. Stick it out for 10 years – if you make it this far chances of lasting increase. (personal note – if you are completely unhappy after year five and nothing has worked, or if the marriage is volatile or abusive then don’t stick it out for 10 years just to make the marriage last).
23. Stop trying to make your partner be who you want them to be or thinking that the person is not the person you married, if you can accept them the way they are.
24. Make lots of Couple time – whether you have kids or not.
25. Be an optimist: Think positively about your marriage.
Good Luck and Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com
Now, I know the last person you expect marriage advice from is a divorce attorney, I mean, it does not exactly drum up business, but deep down inside I do value and respect the institution of marriage and hope that every one succeeds in their marriage. Also, most of the blog posts are about serious legal issues, so I thought a more light hearted post would be a nice change.
Directly from an article in the New York Post: Experts provide their 25 WAY TO A HAPPY MARRIAGE:
1. Don’t roll your eyes at your Mate: It shows Contempt.
2. Prepare for Temptation: Train yourself not to cheat.
3. You don’t have to like every quality your partner has, just decide whether you can live with it.
4. Don’t agree to anything if you don’t mean it: Don’t just say “yes” to avoid conflict.
5. Decide as a couple how you are going to compromise: Don’t always try to find a middle ground, but if something means more to one partner do it their way.
6. Make sure you really want to be married.
7. Stick to the Present and don’t bring up past conflicts.
8. Follow the 5-1 Rule – 5 Compliments to every one criticism.
9. How you fight is more important than what you fight over: Don’t start with name calling or criticisms. Speak in low quiet voices, look each other in the eye, sit or stand at the same level and use open questions.
10. Don’t interrupt: When discussing anything don’t interrupt each other, wait and listen until that person finishes.
11. Have Sex: Make time for it even if you don’t feel like it or are tired.
12. Avoid the words “never” and “always”: it doesn’t let a partner breath when they are told they are always doing something, or never do something.
13. Watch out for these types of marriages: a) one partner is eager to discuss problems, while the other withdraws from conflict; b) individuals who have tied the not-but live almost as if they were single; c) emotionally volatile marriages frequently marked by great sex but really awful fights.
14. Be prepared to split household chores: or take one completely if that works for your marriage.
15. Only one person gets to have a tantrum at a time: whoever starts the tantrum has dibs. Even a sane adult needs to act like a 2 year old sometimes.
16. Be prepared to talk about finances without judgment.
17. Be flexible with gender roles: like if a mother works and the father stays at home to take care of the children.
18. Create a world that the two of you share: do things together as much as possible.
19. Respect your partner’s territory: don’t speak for your partner, etc.
20. Hold Hands – lessens stress
21. Have high standards for each other - refuse to accept negative or hurtful behavior from the start.
22. Stick it out for 10 years – if you make it this far chances of lasting increase. (personal note – if you are completely unhappy after year five and nothing has worked, or if the marriage is volatile or abusive then don’t stick it out for 10 years just to make the marriage last).
23. Stop trying to make your partner be who you want them to be or thinking that the person is not the person you married, if you can accept them the way they are.
24. Make lots of Couple time – whether you have kids or not.
25. Be an optimist: Think positively about your marriage.
Good Luck and Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com
Monday, May 10, 2010
POSTNUPS: FIXING MARRIAGES AND PROTECTING INDIVIDUALS
Lately, it seems as though postnups (Post nuptial Agreements) are the new prenups (Prenuptial Agreements). According to a recent survey, 50 percent of matrimonial lawyers, including myself, reported a rise in these contracts, which give married couples an opportunity to rewrite the rules of their marriage on everything from property, consequences of cheating and money. The most famous example of is Tiger Woods who is rumored to have an agreement to pay his wife, Elin, $5 million to stay in the marriage. These days more and more individuals are being compensated for their spouse’s infidelity and breach of their marriage contract, but in high profile marriages the rise of postnups are being credited for saving marriages. For example, if one spouse is a compulsive gambler, the other spouse may stay in the marriage if a post nuptial agreement is in place stipulating that certain accounts and/or assets are separate property and cannot be used for such purposes, and that all of the gambler’s debts are their own responsibility. Thereby, the spouse is secure and protected in case of divorce caused by the other spouse’s gambling problems.
Postnups are becoming so prevalent, that even some Hedge funds are known to force their high earning principles with a stake in the company to ensure their spouses won’t take half the business in case of a divorce. In fact, I gave a lecture at Montclair Univiersity, in Montclair, New Jersey, to a large group of business student about the topic of how to protect one’s rights and interests in a business from the impact of divorce and postnups were a big part of my lecture. This becomes especially important when a couple marries before there is any need of a prenup, meaning not many assets are owned by either spouse, but eventually one or both of the spouses acquire major assets and/or interests in a businesses. Business owners must also be very aware of their partners and ensure that they also have agreements with their spouses, so that a partner’s spouse does not walk away with half the business, leaving you, a non-party of the divorce in ruins.
Sure, it is not the most romantic or sexy topic of conversation between spouses, essentially planning a divorce in case it happens, but adult spouses must acknowledge the possibility of going through divorce. This becomes even more apparent, when one takes into consideration the rate of divorce in America being at approximately 50%. There is a stigma that surrounds postnuptial and prenuptial agreements, and these contracts are seen as shallow, contrary to the principles of what is mine is yours, and what is yours is mine, but this is not the case. Individuals, prepare Wills in case of death because death is a possibility, as should people protect themselves and their business interests, from the possibility and consequences of divorce.
Lastly, it is important to remember that according to the IRS code there are certain assets one cannot waive until they are married, so a post nuptial agreement might be required to back up a prenuptial agreement. Moreover, for both a prenuptial and post nuptial agreement there must be full disclosure. Therefore, both spouses must be very well informed of how much all assets are worth, how much they will receive in case of divorce and how much they are waiving in case of a divorce.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com
Postnups are becoming so prevalent, that even some Hedge funds are known to force their high earning principles with a stake in the company to ensure their spouses won’t take half the business in case of a divorce. In fact, I gave a lecture at Montclair Univiersity, in Montclair, New Jersey, to a large group of business student about the topic of how to protect one’s rights and interests in a business from the impact of divorce and postnups were a big part of my lecture. This becomes especially important when a couple marries before there is any need of a prenup, meaning not many assets are owned by either spouse, but eventually one or both of the spouses acquire major assets and/or interests in a businesses. Business owners must also be very aware of their partners and ensure that they also have agreements with their spouses, so that a partner’s spouse does not walk away with half the business, leaving you, a non-party of the divorce in ruins.
Sure, it is not the most romantic or sexy topic of conversation between spouses, essentially planning a divorce in case it happens, but adult spouses must acknowledge the possibility of going through divorce. This becomes even more apparent, when one takes into consideration the rate of divorce in America being at approximately 50%. There is a stigma that surrounds postnuptial and prenuptial agreements, and these contracts are seen as shallow, contrary to the principles of what is mine is yours, and what is yours is mine, but this is not the case. Individuals, prepare Wills in case of death because death is a possibility, as should people protect themselves and their business interests, from the possibility and consequences of divorce.
Lastly, it is important to remember that according to the IRS code there are certain assets one cannot waive until they are married, so a post nuptial agreement might be required to back up a prenuptial agreement. Moreover, for both a prenuptial and post nuptial agreement there must be full disclosure. Therefore, both spouses must be very well informed of how much all assets are worth, how much they will receive in case of divorce and how much they are waiving in case of a divorce.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com
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