The times they are a changing. It is now increasingly common to hear ex-wives complain about the amount of spousal maintenance and child support they are paying to the ex-husbands.
For years, men were ordered to both pay both spousal maintenance and child support as part of their New York divorce. But, the pendulum has begun to swing the other way. But, it is now common for the wife to be the “bread-winner” in marriage and, as noted by the American Academy of Matrimonial Attorneys, to be ordered to pay maintenance and child support to her husband.
This phenomenon is the result of a convergence of a combination of economic and legal factors. According to a recent Pew Research study, the wife is the higher earner in 40% of marriage. Thus it follows that the higher earning wife must pay maintenance and/or child support when the couple divorces.
More Wives Are Paying Maintenance in New York
Until New York issued guidelines for maintenance, maintenance was awarded after consideration of a litany of factors, including the length of the marriage, the age and health of the parties, and their respective incomes. The amount of maintenance awarded differed from Court to Court and county to county. As a result of the uncertainty of the award or because of the bias that husbands should not receive maintenance from their wives, it was not the norm for a husband to be awarded maintenance, even if the wife earned substantially more than the husband.
However, with the advent of New York maintenance guidelines, spousal maintenance became a more black and white issue, the parties’ incomes are plugged into a gender-neutral formula which, in most cases, determines the amount of the maintenance award. Few people, male or female, if told that they would be entitled to a monthly payment turn if down.
More Wives are Paying Child Support in New York
Likewise, more men are receiving child support from their wives. Long gone are the days when it was a given that the mother would have custody of the children and the father would see his children every other weekend. More and more, custody is shared. In New York, where the parties equally share custody, the parent with the higher income is deemed the non-custodial parent for child support purposes. So, if the parties share custody of the children and the wife is the higher earner, she would pay the husband child support pursuant to the child support guidelines.
If you have questions about spousal maintenance or child support in New York, please contact us or call us at 212-683-9551.
The issue of the discoverability of private social media postings arose in a personal injury action. In the case, the defendant sought to discover the plaintiff’s entire Facebook account including private postings- those postings neither published nor made publicly visible. The defendant wanted to use the private postings to disprove that the plaintiff sustained debilitating injuries. The plaintiff sought to limit the private postings as an invasion of privacy.
New York’s highest court, The Court of Appeals, allowed the private postings to be discovered, noting that if that if the postings were not discoverable a party would then be able to effectively “hide” otherwise discoverable material simply by marking it as private or otherwise curating their own social media postings.
The Court noted that there could be limits to discovering private postings on social media:
Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists . . . In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account.
Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. . . Temporal limitations may also be appropriate—for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a] ). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.
While discovery in divorces is generally limited to financial issues, the disclosure of romantic encounters could be relevant to establish marital waste. Likewise, postings about purchases, travel and large expenditures could be relevant to undermine a parties’ economic claims.
The moral of the story is everything posted on social media may be used in against you if you are involved in contested divorce. The wiser course of action, until your case is settled, stay off social media.
If you have questions about your divorce, contact us!
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.
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.
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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.
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Legal Grounds for a NYC Divorce
In the state of New York, thelegal grounds for are:
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.
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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.