When A Marriage Fails

When A Marriage Fails

Sad—but true:  about forty percent of first marriages in the United States end in divorce. The rate for second marriages is higher still. Many women and men who have gone through the divorce process know first-hand that it can be very distressing, if not downright agonizing, because it requires the resolution of so many aspects of the marriage itself and the lives of the parties—including their children.

The termination of a marriage generally includes the “equitable distribution” of marital assets including houses, businesses, the value of professional licenses, retirement accounts, and the like; the amount and duration of spousal support (what used to be known as “alimony”); the amount and duration of child support, including, where needed, the payment of child-care costs; the payment of children’s medical, dental (including possible orthodontia) costs, and, where necessary, psychological care.  Additionally, crucial issues, such as child custody and the rights of the visiting parent (and, sometimes, grandparents) must be resolved; the changing of the names of beneficiaries on bank accounts, retirement funds, and the like; the need to consider obtaining or maintaining life insurance protection to provide funds to care for children in the event of the death of one or both of the bread-winners; the creation of new estate plans including wills, trusts, health care proxies, and powers of attorney.  All of these issues, and more, must be resolved at a time when, in many cases, anger and animosity abounds between the spouses, tending to inhibit cooperation.

Our experience has taught us that the difficult process of divorce can be made easier by educating our clients on their legal rights, and what they can or should do, to protect themselves prior to the commencement of a formal divorce action.  The aphorism “knowledge is power” surely applies to divorces.  It starts with knowledge of the law, the documents that should be obtained and carefully scrutinized, the “skeletons” in your spouse’s closet (and yours?), the tailored strategy that should be employed, and many more, are all crucial to the process. Thoughtful consideration must be given to every aspect of this life-altering decision.

“What about an ‘uncontested’ divorce?” “Doesn’t that make the whole process easy?” a client recently asked. Well, while it is true that a purely uncontested divorce, if obtainable, will save time, money, and emotional drain, the problem is that many couples who believe that they have resolved ALL issues without legal counsel, suddenly come to the realization that they are “giving too much away” or “won’t be able see the kids as often as they’d like”, or “must contribute to a child’s college education when they thought the other party was going to handle it” and on and on—and on.

What is clear is that experienced matrimonial counsel should be consulted prior to taking any steps in this process.  Feel free to contact all us if you have any questions in this area.

QUESTION:  I am a divorced mother with a ten year-old child.  I just obtained a child support award from a judge.  Will I, as the mother and custodial parent, be “stuck” receiving the same amount of child support until my child reaches the age of legal emancipation—in this case, for eleven more years, even if my ex-husband makes double the money in the future?

ANSWER:  First, please understand the difference between a custodial parent (the parent with whom the child is living) and a non-custodial parent (the parent with whom the child is not living.) A non-custodial parent pays child support to the custodial parent.  A non-custodial parent’s basic child support obligation is calculated in accordance with the New York State Child Support Standards Act. The Court must apply certain pre-set child support percentages (17% of the non-custodial parent’s income for one child; 25% for two children; 29% for three or more children), unless a judge finds that applying the pre-set percentages would be “unjust” or “inappropriate.”

In addition to requiring payment of the basic child support obligation, the Court must also apportion the cost of the children’s health insurance, un-reimbursed medical expenses, and child care expenses, between the parents, in the same percentages used in the child support calculation.  The Court may also award educational expenses in child support proceedings, including contributions toward the cost of private school, enriched education, and college expenses for the children.  Once reduced to an order of the Court, such amounts cannot be changed without a “petition to the Court to modify” the child support order, either upward or downward, as the case may be.

Effective October 13, 2010, the standard by which a parent can petition the court for a modification of a prior child support order has significantly changed from prior standards. Unless the parties have specifically “opted out” (given up the right) of the ability to modify a prior child support order under the following circumstances in a validly executed settlement agreement, a parent can now move to modify an order of child support any time after either three years have passed since the order was entered, last modified or adjusted, or there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified or adjusted.  Additionally, either party can now move for a modification any time there has been a “substantial change in circumstances.”  As amended, the law now opens the door for many more parents to move to increase the amount of child support being paid upon word that the other parent is making significantly more money than at the time of the original order.  In the alternative, the parent who is earning significantly less than at the time of the original order may move to decrease the child support obligation.

However, if a Court finds that a party voluntarily decreased his or her income (i.e., by quitting a job or passing on an offered job, etc.), such party will ordinarily be unsuccessful in requesting a decrease of his or her child support obligations.  Intentional attempts to avoid properly supporting a child will never be taken lightly by the Court.

Please feel free to contact us with any questions relating to this, or any, topic in the matrimonial field.


The Importance of Pre-Nuptial Agreements


Question:  A number of years ago, when my husband passed away, you handled the administration of his estate. Recently, I met a very nice gentleman, and we’re planning to be married in the near future. I am concerned, however, about protecting the assets I now own and about preserving my children’s inheritance when I die. Could you advise me in this situation? Thanks. And regards to all. Sarah D.

Answer:  One way to accomplish this, Sarah is by signing a pre-nuptial agreement with your husband-to-be. A properly executed pre-nuptial agreement can safeguard your assets, protect your children’s inheritances, keep your business in the family, simplify a divorce (should that ever occur) and much more. Actually, we recommend a pre-nuptial agreement in advance of almost every second (or third) marriage. We also suggest a pre-nuptial agreement even in advance of first marriages where there is a substantial difference in the amount of the couple’s respective assets. And, yes, we understand that a pre-nuptial agreement is not a very romantic concept in anticipation of a new marriage—but there are compelling reasons to consider it.

What happens, for example, if your new marriage ends as the result of your death? The law says that your spouse has an absolute right to inherit a portion of your estate (generally one-third) no matter what your Will says. This is of particular concern when you have children from a prior marriage, or other close family members, to whom you would like to leave the bulk of your estate. A pre-nuptial agreement can avoid that problem by stating out exactly what each party agrees to leave to the other, if anything, in the event of death. Your future spouse, for example, can waive (give up) his rights to inherit from you in a pre-nuptial agreement. And while we hope the lyric “Love Is Wonderful The Second Time Around” pertains to you, there is nothing wrong with being smart about going into a new marriage.

A pre-nuptial agreement can also do the following: establish what property will be considered separate or joint; protect one spouse from the other’s creditors; decide whether one spouse will have to pay maintenance (alimony) to the other in the event of divorce; decide how gifts between spouses are to be handled; specify who will pay the mortgage and other bills; and how medical expenses will be dealt with. A pre-nuptial agreement can be as inclusive as you and your future spouse desire. In your case, Sarah, since you have children from a previous marriage, a pre-nuptial agreement is very important because it will make sure that their interests in your estate are protected. Incidentally, having a pre-nuptial agreement doesn’t prevent you from making a gift or bequest to your future spouse. It simply gives you, not a court, the right to make those decisions. In essence, then, a pre-nuptial agreement brings you peace of mind. It lets you know where you stand before you say “I do.”

To be valid, a pre-nuptial agreement must be in writing and signed before the marriage. The agreement must be fair and based on full disclosure of assets and liabilities. We cannot overemphasize its importance—especially in second marriages. Please feel free to contact us if you wish to further discuss this very important subject.

And good luck, from all of us, on your upcoming “nuptials.”