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Jewelry, Cars, Heirlooms, Gifts, and the Need for a Prenuptial Agreement or Post Nuptial Agreement

Mar 17

Prenuptial

Everyone who intends to marry in New York needs a prenuptial agreement for one very important reason, among others.

New York’s equitable distribution law currently includes gifts given by spouses to one another during the marriage as marital property. Marital property is subject to distribution as a result of a divorce. While the equitable distribution law exempts property acquired by gift from the definition of marital property, that exemption only applies if it is acquired from someone other than a spouse.

Even property that would be classified as separate and not subject to equitable distribution upon divorce, such as an heirloom ring given to a spouse by another family member or inherited property, that separate property can become marital property if a spouse gives it to the other spouse as a gift during the marriage.

A prenuptial agreement makes sense for everyone because it can be drafted to preserve the character of all gifts given between spouses during the marriage as their separate property.

So with a prenuptial agreement, if your husband buys you that diamond tennis bracelet during the marriage, you can sleep easy knowing he will not be able to ask for a portion of its value if there is a divorce.

Similarly, if your wife buys you that antique car, the agreement will bar a claim for a portion of the value of the car.

Remember, a divorce judge has the power in New York to order the sale of marital property if the parties cannot agree on a disposition of the marital asset.

If you are already married, you can still address the gift issue with a post-nuptial agreement.

Prenuptial and post nuptial agreements should be professionally drafted and signed under the supervision of an attorney to ensure validity. Many prenuptial and post nuptial agreements are set aside because of defects in form, acknowledgment and notarization.

Feel free to contact the Law Offices of H. Michael Stern for a Free Consultation, if you are interested in preparing either a prenuptial agreement or post nuptial agreement.

email: hmsternesq@gmail.com or by phone at 516-747-2290


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

Divorce and Custody of the Dog and Other Pets

Mar 10

Pets in Divorce small
It is imperative for couples who are considering divorce to understand the current legal climate surrounding the issue of residency and care of their pets in a divorce.

In a New York County case in 2013, the Court in Travis v. Murray 2013 NY Slip Op 23405 [42 Misc 3d 447] was presented with a couple who could not agree on who would get the dog, Joey. The Judge presiding over the case determined that he would grant a one day hearing as to ownership and possession of the dog. Pets are treated as personal property under the Common law and New York State law. The Judge deciding Joey’s fate did depart from the traditional approach in ruling that dogs were different and warranted special consideration from the Court in determining ultimate possession. The Court decided that the standard to be used to make the determination was  “what is best for all concerned.”

dog
Each side was given the opportunity to prove not only the benefits each party would receive from retaining Joey, “but why Joey had a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other”.

The Judge made it clear that one party would get the dog and the other would lose all rights to Joey. The Court also noted that the Courts would not supervise joint time sharing arrangements pertaining to pets.

Thus, if this decision remains the legal standard in New York, time sharing arrangements for pets in prenuptial agreements, post nuptial agreements, separation agreements and stipulations of settlement in divorce cases will not be enforced or supervised by New York State Courts.

If you have a cherished pet and are considering divorce, contact the Law Offices of H. Michael Stern for a Free Consultation to discuss your concerns.
hmsternesq@gmail.com or 516-747-2290


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

ASK THE EXPERT: DO YOU RECOMMEND MEDIATION FOR DIVORCING PARENTS OF A CHILD WITH SPECIAL NEEDS?

Jan 19

ASK THE EXPERT: DO YOU RECOMMEND MEDIATION FOR DIVORCING PARENTS OF A CHILD WITH SPECIAL NEEDS?

by NYMetroParents Staff 

Many attorneys suggest mediation for parents who are divorcing. We asked H. Michael Stern, Esq., MSW, an attorney and certified mediator on Long Island, how mediation can help in a divorce, especially when a child with special needs is involved.


WHY DO YOU RECOMMEND MEDIATION FOR THE PARENTS OF A CHILD WITH SPECIAL NEEDS?

Mediation is a process where the divorcing couple—such as the parents of a special needs child—sits with a neutral person who sort of helps open up lines of communication where communication is difficult or has broken down.

Parenting issues become critical for special needs children in terms of their care, education, social skills development, and myriad other things. If parents are not on the same page or are quarreling, that’s detrimental to the development and welfare of that child. Parents need to set aside their conflicts and work constructively to help the child, and mediation helps them do that. The alternative is to go to court and fight, and there are no standards in New York courts for children with special needs in divorce cases. It’s really important that the parents, who know their child better than anyone else, step up and try to work through the problems together. And it helps to have someone there who can guide them constructively—not make decisions for them, but guide them through the parenting dilemmas they have and help them work together for the benefit of their child.


WHY IS MEDIATION ESPECIALLY IMPORTANT WHEN A CHILD WITH SPECIAL NEEDS IS INVOLVED?

All children do better when their parents are getting along. But a child with special needs may not be able to speak effectively for him or herself or have the ability to really articulate his or her feelings or what they want from their parents, especially in a court situation.

Plus, there needs to be a discussion about things like the IEP. The parents can’t be quarreling about that—it needs to be a cooperative process so the child gets the special services they need. You also need to be on the same page with the type of therapy and amount of specialized care the child needs.

If you have a significantly impaired child, agreeing on a parenting plan and schedule is important so that respite is available to both parents. You need to decide who is going to be the primary caretaker and agree on a parenting schedule so that one very dedicated parent doesn’t end up sacrificing everything.


CAN MEDIATION INVOLVE EXPERTS WHO ARE FAMILIAR WITH CHILDREN’S TREATMENT AND EMOTIONAL STATE, SUCH AS THERAPISTS, TEACHERS, ETC.?

Yes, if there’s any sort of lack of agreement, my feeling would be to get the experts and treatment providers involved in the discussion to give the parents the guidance they need to make better decisions for their children. I would encourage it if there’s a disagreement on a course of treatment or a course of intervention for the child. If you have parents committed to the child’s best interest and developmental opportunities, it’s about getting them the information they need to make the best choices.


ARE THERE ANY SITUATIONS IN WHICH YOU WOULD NOT SUGGEST MEDIATION?

Mediation helps in every case unless there’s domestic violence, or if someone is trying to hide property, liquidate property or assets, or do something harmful. There should be time to try to talk it out otherwise. But in those instances, when there’s a threat of danger or dissipation of property, they should go to court.


HOW CAN PARENTS MAKE THEIR DIVORCE AS EASY AS POSSIBLE ON A CHILD WHO HAS SPECIAL NEEDS?

The most important thing the parents shouldn’t do, particularly with special needs children, is get them involved in any way in their conflict or make them the focal point in the conflict. Keep the child as far away from conflict points as possible, not involving them and not discussing anything with them, because they don’t understand and most have deficiencies in their processing.

Another tip: Parents should really develop a lot of structure for themselves and for their child, and adhere to it. It’s especially important for children on the autism spectrum. They may not be living together, and the disruption of contact with parents can be detrimental to child.

Also, maintaining the child’s education and whatever additional services the child needs is critical. It’s all about the child—parents need to keep that in mind and be committed to the child having the best possible outcome.


DO YOU RECOMMEND CONTINUING MEDIATION AFTER DIVORCE? 

It depends if the couple needs it. Go to mediation before you go to conflict. There’s a lot of emotion when people break up and sometimes there are very bad feelings. But parents need to try to put all the personal pain aside so they can address the needs of the child. It’s a difficult thing to do, because people want to express their sadness and outrage and anger, but you want to try to get people in the frame of mind to be positive and move forward.


H. MICHAEL STERN, Esq., MSW, is an attorney and master social worker with more than 27 years of divorce and family law experience. Stern received his divorce mediation certification and specialized training from the New York Center for Interpersonal Development, a program approved by the New York State Office of Court Administration. The Mediation & Law Offices of H. Michael Stern are located at 666 Old Country Road, Suite 555, in Garden City, Long Island.

For a FREE CONSULTATION, call 516-747-2290 or 718-348-6723. 
For more information, visit divorce-mediator.com.


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

Is There a Correlation Between Premarital Cohabitation and Divorce?

Mar 12
There is a common myth that living together before marriage leads to a higher incidence of divorce. Recent research from the University of North Carolina may debunk that myth. The researchers found that there does not appear to be any correlation between premarital cohabitation and divorce. Cohabiting successfully always involves a negotiation between the live-in couple regarding obligations and responsibilities within the new household. My recommendation is that any couple contemplating moving in together have a written cohabitation agreement so each partners role and responsibilities are clearly detailed in plain English. This way there can be a smoother transition into this new phase of life together without disagreement or conflict going forward. While most live-in couples have embarked on cohabiting without a contract, if it does not work out (and that is always a possibility) litigation can follow if a middle ground cannot be found. Winding up in court over apportioning financial obligations, property rights or leasehold rights is time consuming and expensive. My firm can mediate a cohabitation agreement for you and your partner at a reasonable cost in a non-combative setting. Please call my office for a free-consultation regarding the mediation process.

The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

Cohabitation, Domestic Violence and Real Property Law 227-c

Jan 16

Cohabitation, Domestic Violence and Real Property Law 227-c

When couples, partners, or roommates sign an apartment lease, they usually do so with the best of intentions. The cohabiting parties do not typically contemplate a sudden or progressive deterioration of their relationship. An incident of domestic violence, family offense, or criminal conduct inflicted by one cohabiting party upon the other may result in criminal prosecution or the issuance of a Family Court order of protection. The issuance of the order of protection can have unexpected and unforeseen consequences. Provided that certain conditions are met, under New York Real Property Law 227-c, the recipient of an order of protection may move the Family Court to terminate a residential lease. This can be especially troublesome for the other cohabiting party. The other cohabiting party may want to remain in the apartment as good apartments at favorable rents are highly coveted in our area. While any agreement modifying or waiving rights under Real Property Law 227-c are prohibited by law, it makes sense to consider other precautions, which can be addressed in a cohabitation agreement. A cohabitation agreement is typically negotiated and signed before occupancy begins, although there is nothing preventing the parties from signing one afterwards. My firm can represent an individual party in connection with a cohabitation agreement, or my firm can mediate a cohabitation agreement neutrally for both parties. A cohabitation agreement is a separate contract between the parties that confers additional rights to each party beyond those set forth in the lease . A cohabitation agreement can protect the rights of the parties where one party fails to meet anticipated contractual obligations under a lease. It is a sensible alternative that can provide specific terms to be observed in the event of a default, or premature departure of a cohabiting party.


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.