April, 2019 | Law Offices of Akram Louis

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Prenuptial/Postnuptial Agreements

Before you say, “I do”, you have to think about a marriage as an economic partnership. If the marriage does not work out and either you or your spouse decides to file for divorce or separation in the future, the assets, debts, and retirement accounts will have to be divided pursuant to New York State Law. Your spouse may even be entitled to alimony. However, you can protect yourself and your assets with a prenuptial agreement drafted and executed before you get married.

Many people assume that prenuptial and postnuptial agreements are only for the wealthy, but that is not true. Regular middle class individuals may choose to enter into a prenuptial or postnuptial agreement to protect future assets, such as purchasing a house or protecting their pension/retirement accounts that may accumulate during marriage or just protecting against the possibility of your spouse claiming significant alimony upon divorce. You may not even know or be thinking of a scenario that would become a reality if you were to get divorced. For example, things such as pension and retirement benefits may become marital property so that your spouse may claim a right to them upon divorce or separation.

A prenuptial agreement is a contract between both parties before the marriage ceremony, which dictates the outcome of the assets, debts and support if a divorce or separation is commenced. For example, a person that comes into the marriage with property may want to protect that property if his or her marriage ends in a divorce or legal separation. The couple may also choose to decide what will happen to their estate if either of them dies.

A postnuptial agreement is a contract between the parties that are already married, and it is similar to a prenuptial agreement except that it is drafted and executed after the parties are already married. After the wedding the couple may decide to protect their property and to have certainty as to how their assets and debts will be divided in the event of a divorce or separation.

Many prenuptial and postnuptial agreements are thrown out by the court and rendered null and avoid because they were not drafted correctly. Unlike divorce or separation agreements, prenuptial and postnuptial agreements are complicated to draft. These agreements must be drafted by a knowledgeable attorney and executed in a manner that will be upheld by the court. Our attorneys have the experience and knowledge to draft the most iron clad prenuptial agreements.

Call our office today for a legal consultation on how to protect your assets in the event of a divorce or separation.

Custody/Visitation

Custody litigation is not easy on the parents or the children. There are mainly three types of custody: 1) sole legal custody, 2) joint legal custody, and 3) shared joint legal and/or physical custody. Legal custody means major decision making with respect to the child’s health, education and religion. Physical custody is where the child resides. For example, a joint legal custody with physical custody with mom means the parties share decisions but the child resides primarily with mom. However, a joint legal and physical custody means both parents share decision making and splits time residing with both parents.

In New York the court determines which parent gets custody by examining the best interest of the children. The court appoints an attorney for the child. Generally, this attorney’s duty is to report the child’s wishes to the court. The court takes into consideration the child’s wishes as one factor in determining which parent the child should reside. For older children (13 and up) the court tends to listen more to the child’s wishes as to which parent the child wants to live with. If one parent receives custody, the other parent gets visitation with the child. The parties also alternate holidays and each parent is entitled to summer vacation with the child.

If you are going through a custody battle, you need an attorney that will aggressively represent your interest all the way. Your attorney must prove to the court that you are an involved parent and the best interest of the children is to reside primarily with you.

Our office is highly skilled with custody litigation and the courtroom experience to advocate for your interest. Call the office to schedule a strategy session for your particular custody case.

If you would like to learn more, please click on the below links:

Child Support

Child support is calculated at a maximum cap of $148,000 combined parental income. However, the court has discretion to calculate child support above the cap. In New York, child support must be paid by parents until the child reaches the age of 21 years. Child support is calculated based on adjusted gross income (“AGI”: Gross income minus social security, Medicare and NYC or Yonkers tax).

The amount of child support that must be paid for one child is 17 percent, for two children is 25 percent, for three children is 29 percent, for four children 31 percent and for 5 or more children is 35 percent of the combined adjusted gross income.

Child support modification:
Child support orders that were made on or after October 13, 2010 can be upwardly modified in three ways:

  1. Every three years, the custodial parent is entitled to a de novo review of his or her child support calculation;
  2. If the non-custodial parent’s income increased by 15 percent or more; or
  3. A showing of substantial change in circumstances.

How can the non-custodial parent lower his or her child support obligation?
The parent that is paying child support can lower the amount of child support by showing that he/she lost his/her job with no fault of his/her own. This means that the parent that is paying child support cannot voluntarily quit or get fired from their job. If the court finds out that a parent lost his/her job intentionally, the court will deny the petition to lower the child support.

Enforcement of child support
If the non-custodial parent owes you child support and is not paying child support or not paying on time, you need to contact our office to help you enforce the child support order by filing a violation petition. There are several remedies to obtain back child support: suspension of driver’s license, passport denials, and intercept of tax refund. In addition, you can obtain a money judgment which carries  9 percent interest rate and the payer may face jail time if he or she is found at a trial in willful violation of not paying the child support order.

Call our office so we can guide you to the right path and help you with your child support issue.

Divorces are never easy on the couples, especially if they have children.  We are all used to hearing about celebrities splitting up after five minutes of marriage!  For example, in 2014 when Brad Pitt and Angelina Jolie got hitched many believed the couple would be the exception because they have six children together.

The couple was formally known in the media as “Brangelina”, until Angelina Jolie filed for a divorce in 2016.  Pitt responded to Jolie’s divorce petition by requesting sole legal and physical custody of all six children.  The Pitt/Jolie case reports indicate that Pitt’s request, however, did not go very well with the court because he was under investigation for child abuse.  As a result, the academy award winner was only awarded a temporary schedule of therapeutic supervised visits.

In January 2017, the couple agreed to seal their divorce papers after the Los Angeles County Department of Children and Family Services cleared Brad Pitt of child abuse accusations.  In June 2018, the estranged couple entered into a temporary custody arrangement of joint legal and physical custody.

In New York State there are three different custody arrangements, sole legal custody, joint legal custody and joint legal and physical custody (a.k.a 50/50 shared custody).  The first type of custody is sole legal and physical custody, which means the children reside primarily with one parent and that parent makes all the major decisions without having to consult or co-parent with the other spouse.  The court is more inclined to grant this type of custody arrangement when parents cannot communicate with each other for the sake of raising the children.

The second type of custody arrangement is joint legal custody with one parent having physical custody (the custodial parent).  In this type of custody arrangement, the parties consult with each other regarding major decisions but the children reside primarily with one parent.  Joint legal custody allows couples to co-parent together and put their differences aside in an effort to raise the children.  Parents that have joint legal custody have to make major decisions regarding medical/health, education and religion together.  For example, if the children reside primarily with mom and the parties have joint decision making, mom cannot unilaterally decide to enroll the children into a private school or change the children’s doctor without first consulting with dad.  Some parents that have joint legal custody that do not wish to speak to one another choose to co-parent with each other using another form of communication such as text messaging.

The third type of custody is joint legal and physical custody (shared 50/50 custody).  In this type of custody arrangement, both parents share decision making regarding the children and the children reside with them on equal time.  The 50/50 custody arrangement was not preferred by the courts for a long time because many judges believed that it created an unstable home environment for the children.  In other words, the children have two homes and the parties have to do a lot of back and forth shuffling the kids around.  For example, parents may choose to have the children on alternating weekly basis.  Some parents that cannot go a full week without seeing their children agree to exchange the children every two days and alternate the weekends – this of course leads to more back and forth exchanges of the children between the parties.

The joint legal and physical custody is still not the most preferred type of custody arrangement for judges.  In my experience, only Queens County Supreme Court judges started recommending joint legal and physical custody in the last few years and only if the parties reside in close proximity with one another.  Judges in other counties view shared custody as burdensome on the children and not in their best interest.

There is no right or wrong answer when it comes to the question of whether equal shared custody is in the best interest of the children.  For instance, some parents feel that they should have equal parenting time with their children because prior to the divorce the children lived with both parents under one roof.  However, other parents feel that it creates instability for the children because they have to transport the children’s clothes and their school books/supplies back and forth between two residences.

Every family is different and there should not be a standard custody arrangement.  Parents who are both involved with their children’s upbringing, such as attending school meetings, taking the children to doctor’s appointments and helping their children with their homework should be allowed to have equal shared custody.