New York Divorce Report - New York's Divorce and Family Law Blog

There are few certainties in life. However, one of life’s certainties is that all marriages will end, whether by death or divorce. At the end of marriage, whether by divorce or death, disputes over money and the disposition of marital assets may be inevitable. However, a pre-nuptial agreement can help lessen the potential for conflict by clearing identifying the parties separate property and defining the parties’ rights to the marital property. A recent article illustrated why a Pre-Nup may be a smart money move.  1. Why are pre-nuptial agreements beneficial? "One of the common reasons to get a pre-nup is... More

To the list of things Bernard L. Madoff has been blamed for ruining — retirements, lives, reputations — add another: a clean breakup.” The New York Times is reporting that a husband (a lawyer), who, entered into a settlement agreement distributing marital assets, which included an investment in Madoff’s hedge fund, is seeking contribution from his ex wife for the post-divorce losses sustained in the Ponzi scheme. Rather than splitting an investment in the Madoff hedge fund, the husband gave the wife $2.7 million in cash and held onto the account. Of course, the account is now worthless. The husband... More

Citing a recent New York Times article, Victor Medina in the New Jersey Divorce and Family Law Blog, comments on the rise in the use of post-nuptial agreements, a trend I noted several months ago, here. Mr. Medina gives a great description of what post- nuptial agreements really are: What are “post-nuptial agreements”? Well, unlike pre-nuptial agreements, which deal with parties interested in getting married before they’re actually married, and unlike property settlement agreements, which deal with parties interested in not being married after they’re actually married…post nuptial agreements are intended for a married couple who did not previously enter... More

Yesterday, I noted that there seemed to be a rash of cases challenging the validity of prenuptial agreements. Today, I continue my review with a case the sends the message that you had better read and fully understand the agreement before you sign it, particularly if you are “well educated.” Blindly entering into an agreement will not invalidate it. In Stawski v Stawski, the Appellate Division upheld the validity of a prenuptial agreement, written in German and signed by an American citizen, in Germany. At the time of its execution, the wife-to-be did not speak German and was not represented... More

Thank you to the Prenuptial Agreement Blog for including me in the list of Top Family Law Blogs. Speaking of prenuptial agreements, a couple of cases addressing prenuptial agreements have been decided by the Appellate Division in recent weeks. Thus, I begin a series of postings addressing these cases. In the recent case of Selinger v. Selinger, the parties entered into a prenuptial agreement, in which they agreed “to waive any rights in and to the other's separate property, including gifts of land to the other as long as the gift was either evidenced in writing or "such records or... More

The New York Probate Litigation Blog highlights the recently decided case of Estate of Joseph Menaham, in which a widow’s attempt to nullify a pre-nuptial agreement was rejected by the Surrogates’ Court. Prior to marriage, the wife, now a widow, was diagnosed, hospitalized and treated for a bipolar disorder. Following her release, she entered into a pre-nuptial agreement in which the parties each agreed waived their rights to election against the other’s estate. The right of election is a statutory protection which prevents one spouse from dis-inheriting the other. Following her husband’s death, the widow sought to set aside the... More

Postings in two divorce and family law blogs highlight a growing conflict between the states on how to deal with a parties continuing obligation to pay alimony or maintenance, as it called in New York, if the former spouse enters into a domestic partnership. To frame the issue, what happens if you are obligated to pay maintenance to your ex, but your ex rather than  re-marrying, enters into a domestic partnership? A number of states have enacted civil union or domestic partnership statutes which grant same sex couples some, but not all, of the rights and privileges of marriage. Maintenance... More

The Appellate Division in Walker v. Walker provides us with yet another lesson on the importance of carefully drafting martial agreements. In Walker, the parties, in an oral stipulation of settlement, agreed to divide a 75 acre property. The stipulation specifically provided that defendant "would be entitled to one-half or 37½; acres off the westerly side of that parcel of 75 acres (emphasis added)."  Not surprisingly, the parties then had a dispute about how the property was to be actually divided. On appeal, the Court found that the stipulation was ambiguous, because there is no mechanism by which to determine... More

James Andrew Miller wrote a compelling op-ed piece in the New York Times, theorizing that expensive and heart wrenching custody battles could be avoided if parties intending to marry, merely entered into a pre marital agreement. He details the understandable outrage of friends, told by their soon to be ex-spouses that they would be allowed to have visitation with their children. However, what Mr. Miller ignores is that parties can contract to virtually any issue of the marriage except child custody and support. Any provisions would be contrary to public policy and would be unenforceable.  Child custody is based upon... More

The Appellate Division in Van Kipnis v. Van Kipnis enforced a pre-nuptial agreement which the parties entered into in France in 1965.  The agreement provided that “Each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own subsequently by any means whatsoever.” Although there is a presumption under New York law that property acquired during the marriage is marital, the Court found that the presumption was overcome by the unambiguous terms of the parties’ agreement and their conduct in keeping their assets separate. As a consequence,... More

Governor Spitzer signed into law, this week, a bill amending Domestic Relations Law  §250, tolling the three year statute of limitations for commencing an action or asserting a defense that arises from a pre-nuptial or post nuptial agreement until service of process has been completed in a divorce action or until one of the parties dies. The law does not apply to separation agreements or agreements entered into during the matrimonial action. What this means in plain English is that a party does not have to take any action to enforce or to declare void a marital agreement until an... More

A father, who had agreed to contribute to his child’s college education, was not responsible for contributing to the costs of the child’s post-graduate degree. In the recently decided case of Robinson v. Gerny (New York Law Journal) (subscription required), the Court ruled that “The word ‘college’ denotes attendance at an undergraduate program resulting in a bachelor’s degree.” The Court ruled that the fact that the child was seeking a graduate degree was not “contemplated as within the plain meaning of college.” This dispute could have easily been prevented by carefully drafting the parties’ settlement agreement. It is not uncommon... More

The Oklahoma Family Law Blog highlights some of the basic tax concerns that need be considered in connection with divorce.   • Alimony is taxable and deductible. The person who provides alimony can claim the payments as a deduction, while the person who receives it can avoid a large end-of-year tax bill by paying estimated taxes during the year. Unlike alimony, child support is not deductible or taxable. • Who claims the children? The parent who has custody of a child usually can claim the child as a dependent. However, with the custodial parent’s consent, the parent without custody can claim... More

The Wall Street Journal in an article entitled Divorce: Counting Money Gets Tougher, highlights the common mistakes made by unwary litigants. These mistakes can have dire tax consequences. Some common blunders: Dividing a stock portfolio down the middle without checking for losses or gains -- which can trigger either a tax break or a big capital-gains tax hit. There are steps you can take to avoid house-related tax hits. If you keep the house and retitle it in your name, but end up selling it after the split, you may be able to shield only as much as $250,000 of... More

The Financial Times reports that there is a growing trend for post nuptial agreements.   Like the pre-nuptial agreement, the post-nuptial agreement sets out the parties’ rights, obligations and liabilities upon the termination of marriage by either death or divorce. The only difference between the two marital agreements is that the post-nuptial agreement is executed sometime after the parties are wed. According to the Financial Times, post-nups are particularly popular with hedge fund managers.   This, however, makes perfect sense.   The financial tycoons are merely seeking to limit their downside risk in the event that their marriages become, to use the street slang,... More

It seems to be just common that when negotiating any type of marital agreement, it is important to make sure that your every intention is clearly spelled out, even if the intent seems obvious to you..  Such is the lesson of recently decided case of Genovese v Axel. In Genovese: [T]he parties executed a prenuptial agreement dated April 17, 2000, whereby they agreed to waive their respective rights of election pursuant to EPTL 5-1.1-A. Following the waiver provision, the parties agreed, in clause 1(ii), that "[n]otwithstanding anything to the contrary" they would each "execute their respective Last Will & Testament[s]... More

Continuing along the theme of sport superstars and their very public divorces, Jeffrey Lalloway in his blog, reports that: Giants star Michael Strahan was ordered to pay his ex-wife $15.3 million -- more than half his net worth -- in keeping with the couple's prenuptial agreement. Under the agreement, Jean Strahan was entitled to 50 percent of their joint marital assets and 20 percent of his yearly income from each year they were married. The NFL star had contended he wasn't responsible for the 20 percent because his wife failed to ask for it every year. But state Superior Court... More

CNN.com offers a great primer on the pros and cons of negotiating a pre-nuptial agreements.  The pre-nup could prevent litigation in the event the marriage ends in divorce.  On the other hand, a difficult negotiation may end the relationship before a marriage takes place. I have excerpted the article here: Pre-nuptial agreements, are no longer an exclusive financial risk management tool for Hollywood couples.  Having seen what can happen when a high-profile relationship fails, increasing numbers of less famous couples are known to be opting for written agreements to protect the financial assets each partner brings to the relationship. Some... More