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Eighteen years, eighteen years
She got one of yo kids got you for 18 years
I know somebody paying child support for one of his kids
His baby momma's car and crib is bigger than his
You will see him on TV, Any Given Sunday
Win the Superbowl and drive off in a Hyundai
She was spose to buy ya shorty TYCO with ya money
She went to the doctor got lypo with ya money
She walking around looking like Micheal with ya money
Should of got that insured got GEICO for ya money
If you ain't no punk holla We Want Prenup
We want prenup!, yeah
It's something that you need to have
'Cause when she leave yo ass she gone leave with half… 

-Gold Digger Kanye West

One sure way to protect yourself from financial ruin when a loving marriage ends in a divorce is to have a prenuptial agreement in place.   A prenup can establish your post-divorce lifestyle and fix your financial responsibilities and rights even before you wed.

A prenup in New York can completely eliminate or limit maintenance payments.  It could also define what happens to property acquired during the marriage.   Absent a prenup, the higher earning spouse may be required to pay maintenance to the other spouse as determined by a statutory formula.    The prenuptial agreement could over-write the law and eliminate this obligation.

Likewise, a properly executed prenuptial agreement can provide how property will be divided if there is a divorce.   Under New York law, marital property is equitably distributed.   A prenup can define what, if any, property is marital and how the marital property will be distributed.

What  New York Prenups Can and Can’t Do

The prenup cannot only address post-divorce issues, but marital life.  The agreement could provide for how expenses during the marriage are paid, how marital bank accounts are funded and how assets, like the marital home, are titled.   The only things that cannot be addressed in a prenuptial agreement are issues involving child custody or child support.   Those issues can only be addressed if, and when the parties divorce.

In short, prenups are not only used to provide protection against gold-diggers, but they are also appropriate when one spouse:

  • Comes into the relationship with substantial assets that require protection from the claims of your prospective spouse;
  • Has children from a prior relationship and wants to secure their inheritance rights.
  • Runs a business and wants to protect his/her business interests.
  • Wants to identify his/her separate or pre-marital property.

If you are contemplating marriage, we can assist you in drafting and negotiating a prenup agreement and we will do it right. Please contact us or call us at 212-683-9551.

The post New York Prenups: Not Just Protection From Gold-Diggers appeared first on Clement Law.

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Hard to believe, divorce in New York may get even more expensive. The tax bill proposed in the House of Representatives, last week, seeks to eliminate the deduction for alimony payments.

The new tax law attempts to eliminate what has been called a “divorce subsidy.” Under the existing law, the party paying alimony may deduct the payment and the party receiving alimony would include the payment in his/her income for tax purposes. Since the payor of spousal support would be in a higher tax bracket than the recipient, the payor’s tax deduction would be larger than the recipient’s tax liability resulting from the support payment.

In real terms, if the party was making a maintenance payment of $100 and was in the highest federal tax bracket (39%), the real cost of the maintenance payment would be $61.00. On the other hand, the recipient, in the lowest bracket (15%) would receive $100, have a tax liability of $15, and receive an actual benefit of $85.

By being able to leverage the differences in the parties’ tax rates, payments between future ex-spouses can be structured in a tax-efficient way. Absent the alimony deduction, the real cost to the payor in the above example would be the full $100 payment.

Sine the recently enacted New York maintenance guidelines were drafted with the “assumption” that the maintenance payments would be tax deductible, if the new tax law is enacted, I would anticipate that the maintenance guidelines would need to be re-formulated to ensure that they are not confiscatory in application.

Given that this tax reform bill was just introduced and is in its first iteration, we will have to keep on it to what if, any changes, are made to alimony deduction. If enacted, the tax law will become effective on January 1, 2017. So, if your divorce settlement contemplates you paying maintenance, do what you must to finalize the divorce as soon as possible– your savings could be substantial. On the other hand, if you are to receive payments, it could be beneficial if you can delay the entry of the divorce until the beginning of the year.

If you are considering divorce, please download our e-book The Divorce Process: What to Expect.

The post Tax Bill To Make Divorce More Expensive: Maintenance Not Tax Deductible appeared first on Clement Law.

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Divorce Lawyer NYC

Whether you just decided you want a divorce or you have been served with a summons for divorce,  it's time to contact a divorce lawyer in NYC. With the right attorney on your side, your legal rights and interests will be protected.

Divorce is ugly, but it doesn't have to become your worst nightmare. With the right divorce lawyer on your side, you'll have someone ready to guide you through the issues that come with divorce.

Divorce is rarely a happy thing and often filled with animosity and plenty of tension. When the most meaningful relationship in your life comes to an end, it's necessary to be represented by an attorney with a  pragmatic approach to the legal and financial side of divorce.

Hiring the Right New York City Divorce Lawyer

With a good attorney on your side, you won't have to worry nearly as much. Daniel Clement is the right choice. Your relationship is coming to an end and Daniel understands how challenging  this time in your life can be. He will help you to make the right decisions so that you can move forward with your life instead of remaining stuck in the past.

When you hire the right divorce lawyer in NYC, you'll get someone ready to work hard to ensure your needs and wants are addressed. With Daniel Clement on your side, you'll have an attorney ready to help you achieve your goals as you go through the divorce process.

What to Expect with Divorce

You can be divorced in a few different ways.  A divorce can be uncontested.  In the case of an uncontested divorce, the parties, with the help of their attorneys, negotiate a settlement agreement and then uncontested divorce papers are filed in court. When this happens, you can be divorced rather quickly and it doesnot have to be incredibly expensive.

While a divorce without a trial may be ideal, it's not always the reality. Sometimes, it's necessary to take the divorce to court and settle the issue.

Whether your divorce happens settles out of  court  or is litigated and requires court intervention,  Daniel Clement will be right by your side throughout the entire process.

Legal Grounds for a NYC Divorce

In the state of New York, thelegal grounds for are:

  • Abandonment
  • Adultery
  • Imprisonment
  • Adultery
  • Living separate pursuant a separation agreement
  • Cruel and Inhuman treatment
  • The irretrievable breakdown of the marriage

No matter the reason for filing a divorce, you need a good divorce lawyer in NYC. Without a good attorney on your side, you could end up out in the cold without much left. You have rights and you need to protect those rights as you go through the divorce process with your soon to be ex-spouse.

Hiring the Best NYC Divorce Lawyer for the Job

When divorce cannot be avoided, you need to be protected by a skilled and experienced attorney. When you retainer  Daniel Clement to represent your divorce, you  will get you someone with more than 30  years of experienced. He has actually been selected as a Super Lawyer.

If you're going through a divorce or you want to file for divorce, contact Daniel Clement today and find out how the Law Offices of Daniel E. Clement can help you.

The post Looking for a Divorce Lawyer for Hassle-Free Process Then Call Us Today! appeared first on Clement Law.

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Divorce Lawyer Manhattan

Hiring the right divorce lawyer in Manhattan will certainly make a difference. Manhattan is a very affluent area within New York City and many of the divorce cases in the area are considered to be high net worth divorces. Millions of dollars and assets may be at stake;  the right divorce attorney could make all the difference.

Preparing for a High Net Worth Divorce

When it's time to part ways with your spouse, it's time to protect your assets, especially if you did not sign a pre-nuptial agreement before your married. The right divorce lawyer in Manhattan will protect your rights and your assets.

When divorce becomes a part of your life, decisions are clouded by emotion which fuel your disagreements.   The battles can turn into an all-out war, but they don't have to. With the right attorney helping you through your divorce, you won't have to go through the divorce yourself. A good divorce lawyer in Manhattan can settle your divorce without going to trial.

At the outset, you will need to prepare for divorce, become informed and set your goals. Communicate your goals to your divorce attorney.  Of course, you will want to make sure your Manhattan divorce lawyer has plenty of experience.

If children are involved, the divorce will become about more than just assets. A good divorce lawyer will be able to help you set realistic expectations when it comes to custody and child support. You should be prepared for what life will look like after divorce and the right attorney will become a tremendous help in this area.

Hiring Your Manhattan Divorce Lawyer

Experience plays a big role in finding the right attorney for your needs. If your divorce falls into the category of a high net worth divorce, you'll want to find a divorce lawyer in Manhattan with experience in these types of cases. You certainly don't want a rookie handling your divorce with millions of dollars worth of assets on the line.

Why Hire Daniel Clement

Daniel Clement is not only a dedicated, hard-working divorce attorney in Manhattan, but he is experienced in all  aspects of divorce including distributing assets, maintenance, child custody and child support. With more than 30 years of experience in this arena, he knows how to ensure you get what you deserve during a divorce

While breaking up a marriage is never ideal, it happens. You may not even be the one wanting a divorce, but you still need to be protected. Financial, legal and psychological consequences are all a part of divorce. This emotional time can have you thinking irrationally, but with the right divorce attorney on your side, you'll have someone with their head in the game.

Protect yourself by hiring an experienced and skilled divorce attorney in Manhattan. Call The Law Offices of Daniel E. Clement and find out how we can help you with your divorce case, child custody, child support and even a high net worth divorce.

The post What to Look For in a Divorce Attorney – How to Select Wisely? appeared first on Clement Law.

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In New York, there is a “presumption of legitimacy” which provides that a child born during a marriage is presumed to be the married couples’ child.  A New York appeals court ruled that this presumption should apply equally to both heterosexual and same-sex couples.

This is a logical extension of the Court of Appeals decision in Matter of Brooke S.B. v. Elizabeth A.C.C., in which New York’s highest court expanded the definition of “parenthood” to include the nonmarried, ex-partner of a biological parent.  The court in Brook S. B. declared that either party could seek custody or visitation rights of children resulting from the same-sex relationship.  The Brook S.B. case is discussed at length here.

This latest case goes even further than the decision in Brooke S.B. in expanding the parental rights of same-sex couples.   Now, not only can either party seek custody or visitation if the same sex relationship dissolves, but now, since the child is presumed to be the legitimate child of both parties, it would be unnecessary for the non-biological parent to formally adopt the child in order to establish his/her paternity rights.  Like a child born to heterosexual parents, the child of a same-sex couple will be presumed legitimate, and its parents will enjoy all the rights of natural parents.

This is not the first case to deal with the presumption of legitimacy for same-sex parents in New York,  but, I believe, it is the first appellate decision.  This case, therefore, must be followed by the trial court in Manhattan and will be persuasive throughout the remainder of New York State.

This decision is a continuation of the progress made in bestowing same sex-couples the same rights as possessed by heterosexual married couples.    It further is recognition that even though it is impossible for both same-sex parents to be a child’s biologic parent, in a marriage, this strong presumption will trump science.

The post Same-Sex Couples Presumed Legitimate Parents of Children appeared first on Clement Law.

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Huma Abedin filed a motion to have her New York divorce against Anthony Weiner calendared, docketed and heard secretly.  The request would allow their divorce to be listed on the New York County Supreme Court’s dockets as “Anonymous v. Anonymous”  This move would, in effect, shield the parties from the glare of the news media.

Divorce filings in New York are immune from glaring eyes of the press, nosey relations, and other gossips. Only the parties and their attorneys can access court papers filed in connection with a divorce. The court’s calendars, which list cases by litigant’s names, are readily available and the courtrooms are open to the public.  Making a case anonymous so the case is designated “Anonymous v. Anonymous”  makes it much more difficult to follow.

Cases are listed as anonymous sparingly and only when circumstances require it.   In child custody cases, the court makes a case anonymous only to protect the health and welfare of the children.

Despite, this seemingly high threshold, it is common for celebrity divorces to be captioned anonymously

Against this backdrop, Ms. Aberdin requested that her divorce be anonymous because there was a child involved.  Understandably, this divorce which encompasses presidential and New York mayoral politics, an FBI investigation, pornography, and sexting would be a magnet for press coverage.

Before denying the request the judge, surveying the courtroom packed with the press noted:

I appreciate the parties’ request to keep this as quiet as possible, but as a practical matter, it does not appear to me that despite your attempt to have this be anonymous, it’s particularly anonymous.

Those who want to follow the case can do so under caption Abedin v. Weiner.

Whether you a celebrity or person in the spotlight and need an anonymous divorce or you can proceed in the normal course, contact us or call us directly at 212-683-9551.

The post “Anonymous v. Anonymous”- Filing A New York Divorce Secretly appeared first on Clement Law.

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What happens when a couple separates, but for some reason, despite the passage of time, don’t divorce?   Suppose still further that during the long separation when the parties have been married but living separately, one of the parties acquires some wealth? Are the assets acquired during the long separation marital and subject to equitable distribution?  Are the assets the separate property of the spouse who acquired them?

A recent case involving the entertainer Ben Vereen supplies the answer. The Vereens married on February 10, 1965, and permanently separated in 1966- long before Mr. Vereen acquired some level of celebrity. Apparently, the Vereens were separated for so long that they had forgotten that they were divorced in 1974.

In 2016, Ben again filed for divorce in New York.  Though the parties had not been together for more than four decades, his wife sought equitable distribution of the assets he acquired during their long separation.

Even had the parties not previously divorced, Mrs. Vereen would have no right to equitable distribution. The theory of equitable distribution in a New York divorce is that marriage is an economic partnership.  Assets acquired during partnership should be shared between the partners when the partnership dissolves.

As the Court noted, when the parties separated, both were young, and Mr. Vereen's career was just beginning. In seeking equitable distribution, Ms. Vereen failed to address the economic circumstances of the parties when they separated, but instead sought equitable distribution resulting from the celebrity and economic success Mr. Vereen achieved after they separated.

In denying Mrs. Vereen equitable distribution, the Court relied on a litany of precedents which provide:

no award of equitable distribution or maintenance was appropriate where the parties had been physically, although not legally, separated for approximately 30 years; although the husband was a very wealthy man who owned several companies and properties in Nigeria, the wife's 30-year delay in seeking money or property from him was insufficient to warrant an award of the requested relief; because the economic partnership of the parties ended three decades ago, it would be inequitable to make any award of money or property to plaintiff where the husband's wealth did not result from her direct or indirect contributions

In order to divide assets acquired during a marriage, it is not enough to show that you are legally married.   Evidence must be presented demonstrating that the marriage was, in fact, an economic partnership, with each of the parties contributing to the acquisition of the claimed marital assets.

If you are seeking a divorce, contact us.  We are here to protect all of your property rights.

Photo licensed by dtstuff9

The post Long Separation, No Divorce? No Equitable Distribution! appeared first on Clement Law.

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There is a welcome trend in child custody cases in New York- parents, the courts and even New York divorce attorneys, are all recognizing the importance of both parents being engaged in making decisions effecting their children’s health, education and welfare. Rather than vesting one parent with child custody and decision making authority, now many custody disputes are being resolved in a way to give both parents say in making major decisions for their children.

Even without court intervention, with ever-increasing frequency, divorcing parents in New York are agreeing to some form of  joint decision-making.   This arrangement, which is commonly referred to as "joint custody" or "joint legal custody," enables both parents to have meaningful input into what happens in their child's life.

While a shared decision making is aspirational, it is not appropriate for everyone. There are cases where the parties either are just too contentious to jointly make decisions or shared custody is just not appropriate (i.e., in cases of domestic violence, drug or alcohol abuse etc.)

How Child Custody Decided in New York

A recent case provided a survey of the law regarding decision making in custody cases in New York.  Not only is the case informative as it relates to legal issues, it is enlightening as Justice Cooper shares his candid impressions of the parties and how it affected his opinions.

The decision begins by addressing four ways decision making in custody cases can be handled.  Decision making in custody case in New York can be made:

  1. Jointly- all major decisions are made collectively by both parents.
  2. Spheres of influence, where each parent is assigned specific areas where that parent has final decision-making authority
  3. Sole custody, where one of the parties is dysfunctional, lacks adequate parenting skills, or is suffering from some infirmity, so that it would be improvident to allow him/her to participate in making decisions for their children.
  4. Hybrid cases where the parents are deadlocked and unable to make joint decisions. The decision making is effectively given to an “expert” such as a parent-coordinator, educational consultant, or pediatrician, to cast the deciding vote.

Describing the importance of the custodial designation, the Court opined:

Because the word is defined as the "care and control" of another, the granting of custody to one parent can be seen as a declaration that the other parent has no role, or at best, a decidedly secondary role, in raising the child. Thus, it makes sense, wherever possible, to avoid using the word in favor of more neutral terms that do not give rise to the negative associations that come with being designated the non-custodial parent

. . . .even in a situation where hostility and poor-communication abound, courts, when called upon to designate legal custody, should opt, if at all possible, for designating both parents joint custodial parents, rather than making one the custodial and the other the non-custodial parent. . .To designate [a father] a non-custodial parent would, in effect, label him — to the child and the rest of the world — as being somehow defective and inferior to the mother, who, in turn, would wear the crown of custodial parent.

Sole or Joint Custody and Decision Making

For this reason, the Court explicitly rejected awarding of one parent the authority to make all decisions because the end result would marginalize the parent denied decision making and would decrease the likelihood of cooperation between the parties.  Instead, the Court  relied on two earlier cases and award each parent decision making authority in specific areas.

In Mars v Mars,, the first case the Court relied on, it noted that

It is undisputed that each parent takes an active interest in the children's lives and that it is in the children's best interest that both parents remain involved with them, notwithstanding the parents' present intolerance for each other .... While there is significant precedent for dividing decision-making between parents, we are aware of no precedent for completely depriving a non-custodial parent, who is otherwise to remain fully involved with the children's lives, of decision-making in all areas.

In Nimkoff v. Nimkoff , the second cited case, the Court noted:

It found that it was in the child's best interests to divide authority so as "to maintain the respective role of each parent in the child's life." With the mother as the "child's primary caretaker," the court found that granting zones to the father took into consideration "the strengths and weaknesses of both parents"and the "child's need for nurturing, guidance and the meaningful involvement of both parents."

Spheres of Influence Decision-Making

The Court then addressed the two major areas where decisions must be made, medical and educational issues.  After consulting with the other parent, each parent was granted the authority to make the decision is specific areas within their “wheelhouse”- the father for educational issues because  he was involved in both the parent association of the child’s school and was a trustee of his college, and the mother because she was better attuned to the child’s physical needs.   It was noteworthy, that the Court also ordered that the parents consult with a parenting coordinator to assure that parents actually consulted with each other.

Undoubtedly, children fare best in a stress-free environment where parents are both on-board in making unified decisions.  Unfortunately, parents who are no longer together, may have competing agendas for rearing their children.   I do believe that parents can put their competing interests aside and do what is necessary to jointly make decisions in the best interests of their children.

If you have issues regarding the custody and care of your children, please contact us or call us.

The post How is Child Custody and Decision-Making Determined in New York? appeared first on Clement Law.

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The most difficult parts of divorce is that moment when you have to tell and then begin to prepare your children for the divorce. While your children may be bystanders to the decision to divorce and legal proceedings, they may suffer the consequences of the decisions they had no part in making. How you inform your children of your intent to divorce and then help them adjust to their post-divorce lives will have a lasting impact on them.

How to tell children about the divorce:
  1. Don’t involve them in the decision until the divorce is a certainty. There is no need to upset or worry your children them if all you are doing is “thinking about it.” The should not be involved in the decision-making process.
  2. Break the news of the news of the divorce with your spouse. Your talk should be free of blame and finger pointing.
  3. Assure the children that they are without fault for the divorce. Let them know that though you and your spouse are separating and the family structure may be changing, they still have parents who care about them.
  4. Spare your children the detailed reasons for the divorce. Children do not need to know of the infidelities or financial issues that caused the breakup.
  5. Honestly answer their questions and address their concerns, but let them understand some issues are “adult” and would be inappropriate for you to discuss with them.
  6. Assure them that though their mother and father have personal differences, one thing that you both agree on is your love for them. Be adamant that they have done nothing wrong and are not in any way responsible for the divorce.
How to ease the children’s post-divorce transition
  1. Maintain pre-divorce structure and routines. To the extent possible, maintain the pre-divorce routines, extra-curricular activities, and schedules. Structure will help maintain normality; the semblance of normality will give the children the comfort of knowing things may be okay.
    2. Learn how to co-parent with your ex. If you have joint custody, you will want to make the best decisions regarding your children’s health education and welfare. Decisions made in anger or spite are generally not the best decision.
    3. If you and your ex cannot co-parent, mediate your disputes with the appropriate experts. If, for instance, the issue is medical, seek out the opinion of the child’s physician. If the issues are deeper or more complex, or there is an ability to communicate or even to recognize that there is a problem, seek out the services of a parenting coordinator. This trained expert will assist you opening up lines of communication and in making appropriate parenting choices.
    4. Don’t enmesh the children in your disputes, engage them as your spies or make them your messenger. Your children should not have the responsibility of delivering changes to the parenting schedule (“Tell Mom, that I can’t pick you up next Sunday”) or be asked to be your eyes and ears (“Who did Daddy go out with last night?”). The children should not be forced to pick sides. If you have a dispute with your ex, don’t make your children parties to it.

If you and your ex can agree to try an immunize the children from the divorce and put their best interests ahead of your anger, jealousy or even indifference to your spouse, your children may thrive in spite of the divorce.

If you have questions about child custody or parenting issues, contact us and let’s schedule a time to speak.

The post How To Tell and Prepare Your Children For Divorce appeared first on Clement Law.

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Not only are we in the midst of the Spring and Summer wedding season, but we are also in prenuptial season. Prospective brides and grooms are accessing their financial futures, taking stock of their pre-marital assets and the debts and taking stock of their individual and joint economic futures. They are also looking for protection in case their impending marriage fails and ends in divorce.

The best, if not the only way to protect and to “divorce- proof” your pre-marital and, to some extent, post-marital property is by entering into a prenuptial agreement. A good pre-marital agreement defines what remains a parties’ separate property and what constitutes marital property. The agreement then details what happens to the property in the when the marriage ends in death or divorce.

Done right, the prenuptial agreement offers good protection; done wrong, the prenup is worthless. In fact, there are some sure-fire ways to ensure that your prenuptial agreement will be invalid:

Don’t memorialize the Pre-Nup in writing

Not only must prenuptial agreements be in writing, they need to be formally executed. New York law requires pre- nuptial agreements to be signed and acknowledged before a notary. Improperly signed and executed agreements will be invalid.

Don’t disclose your assets, income, and liabilities.

A valid prenuptial agreement requires you to lay all your cards on the table. Prenuptial agreements typically provide for waivers rights to maintenance and equitably distributing certain assets. For a party to knowingly make an informed waiver, they have to know what they are giving up.

Don’t have independent counsel

It would be unethical for one attorney to advise both parties to a prenup; as it would be a conflict of interest akin to one attorney representing both a buyer and a seller in the same transaction.

Moreover, if you spent the time and money to prepare a prenup, certainly, you would want it to be found to be a valid agreement. Ensuring that your fiancé had legal representation, drastically increases that chances that even an onerous agreement will survive a challenge.
The typical defenses to a prenup are:

  • that the agreement was not properly executed;
  • that the agreement was unconscionable;
  • that the agreement was procured by fraud, undue influence, or coercion;
  • or that the person challenging it simply did not understand or know what they were signing.

Simply having your fiancé represented takes the sting out of theses defenses. Often I counsel my clients that if they are willing to incur the cost to have me draft an agreement, they should offer to pay for their fiance's attorney.

Propose the prenuptial agreement at the very last minute.

While there is no requirement in New York that a prenuptial be signed at a defined time in advance of the wedding, don’t spring it on your fiancé at the last moment. Allow sufficient time to ensure that your future spouse can secure independent counsel, review and understand the agreement and the financial disclosure. All of that takes time.

A prenuptial agreement done right is like an insurance policy that protects you and your assets. When the marriage ends in either death or divorce, you will have some certainty as what will occur. An agreement improperly executed or entered into without the necessary disclosure, legal representation or negotiation if challenged and thrown out is worthless.

If you want a prenuptial agreement done right, please contact us.

The post New York Pre-Nup: How To Get It Wrong appeared first on Clement Law.

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