I just wanted to announce the debut of the new and much improved Clementlaw web-site.
The Practice Areas part of the site provides some useful and practical information about divorce, separation, child custody, equitable distribution, the different types of marital agreements and other areas under the broad umbrella of family law practice.
You are invited to explore. I would love to hear your comments as to its user friendliness and readability.
Divorce, illness and a long term disability are the most common life events that have a catastrophic effect on a person’s financial well being. All too frequently a person going through divorce watches as his/her credit rating is destroyed by the former spouse.
The Ask the Advisor Blog has some great tips for protecting your credit after divorce. Chief among his tips are:
1.Check Your Credit Score — By checking your credit score you can see if your credit has been adversely affected by your divorce. It will also show if there are any debts that you used to share with your spouse that are now being neglected. This will point you in the right direction when it comes time to cancel any joint accounts.2.Separate/Cancel All Joint Accounts — Any and all accounts, debts and property that you still share should be separated, canceled or sold.
3.Notify Creditors of Your Divorce — Once you have separated/canceled all of your joint accounts/debts, you are no longer legally bound to your former spouse's current debts..
It is important to note that any agreement for the payment of debts between you and your spouse is not binding on your creditors. That means, until and unless the debt is transferred to the spouse that assumed the particular liability, the other spouse remains personally liable for the debt. So, if the debt is not transferred into your spouse’s name, it remains a joint obligation. If it is not paid, your remain liable to pay the debt.
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 how much of defendant's 37½; acres must be from the "westerly side" of the parcel. Stated otherwise, the stipulation provides no basis from which to discern a dividing line.
As the result of a simple, and, perhaps, misplaced “or” in a settlement agreement, the parties were forced to perfect an appeal and to conduct a hearing to clear up the ambiguity and to ascertain their intent at the time (they thought) they settled the case.
The lesson, select the language of agreements carefully. If necessary, give examples. In this case, an illustration on the land survey showing how the property was to be divided would have saved this couple a lot of legal fees and heartache.
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, the parties’ separate assets were not subject to equitable distribution.
In rendering this decision, the Court offered a primer on the relevant law of matrimonial agreements. Among the basic concepts elaborated upon are:
- There is a "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" (Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001] Thus, "[d]uly executed prenuptial agreements are accorded the same presumption of legality as any other contract.”
- "Agreements are to be construed in accord with the parties' intent."
- The best evidence of what parties to a written agreement intend is what they say in their writing."
- A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.
- Extrinsic evidence of what the parties really intended is generally inadmissible, and will be considered only if the agreement is found to be ambiguous, W.W.W. Assoc., v Giancontieri 77 NY2d 162 [1990]).
- Extrinsic evidence may not be utilized to create an ambiguity that would otherwise not exist
The decision can be read here.
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