New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

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 the title of the donated property must have been changed into the name of the donee party."

During the course of the marriage, the parties sold a home that husband solely owned prior to the marriage, and purchased a house in Long Island with legal title to that house being placed solely in wife's name. When the home was sold, the sale proceeds, $3.4 million dollars were deposited in the wife’s separate bank account.

The Court ruled that the proceeds were the wife’s separate property.  “By deeding the house to defendant, plaintiff memorialized in writing a gift to his wife pursuant to the clear terms of the prenuptial agreement. . .”

The opinion hints that there was another, but unenforceable agreement executed between the parties, which I bet, obligated the wife to transfer the property or its proceeds back to the husband in the event of divorce.

There certainly was something improper going on that was not directly addressed in the opinion. I am guessing that the transfer to the wife was an attempt to protect the property from the creditors of the husband.

In any event, this case serves as a lesson that a prenuptial agreement will be upheld, even if it results in a wind-fall for one of the parties.

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The martial home is often the most valuable asset to be dealt with in a divorce.

Generally, one of three things can happen to the martial home as part of the divorce: it is sold on the open market, one of the spouses buys out the other spouse’s interest, or one spouse is allowed to occupy the home for a period of time, until, for instance, a teen age child graduates from high school, and then the home is sold.

If the home is sold, the value to be distributed is easy to ascertain- it is the net proceeds remaining after all the costs associated with the sale have been paid.   The costs of sale include transfer taxes, broker’s commissions, the costs to satisfy the outstanding mortgage and, of course, legal fees.

If one spouse is to remain in possession of the home, the property needs to be appraised.  The appraiser, by comparing the particular home to others in similar condition and location, offers an opinion as to the property's value and the parties or the Court will determine the parties' equitable shares.

The New York Observer ran an informative piece detailing the process of selecting a real estate  appraiser and the problems they encounter in  valuing real estate in a contest divorce. 

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In a case where a husband abandoned his wife and children and failed for nine years to pay any child support, a Court ruled it was appropriate to set off the husband’s unpaid child support obligation against his interest in marital property.   Since the husband failed to pay child support for nine years, his interest in the martial home was set off against the amount of unpaid support. As a result, the Wife was entitled to full possession and title to the marital home. 

 In the case Pritchett v. Pritchett ( N.Y.L.J. 4/9/07(subscription required), Justice Darrell L. Garvin ruled that the husband’s abandonment of his family and failure to contribute any child support created a “substantially unequal burden on the [Wife] to the benefit of the [husband]. This benefit of the non-contributing spouse constituted an unjust enrichment which should be rectified.”

Applying the child support guidelines to the Husband’s income at the time he abandoned the family, the Court calculated the amount of unpaid child support arrears and the husband’s share of the child care, educational and medical expenses even though the Wife had not previously obtained an order requiring the payment of support.   

Since the child support arrears exceeded the value of the Husband’s equitable interest in the marital home, the Court transferred title to martial home to the Wife. 

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