When is a Divorce Settlement Right for You?

Would you rather let a Court, who barely knows you, decide your future or would you rather swallow your pride and decide yourself? Divorce is a very emotional process. The well known epithet that a self-represented litigant has a fool for a client, rings ever more true in divorce. You must have the help of an attorney to help guide to a resolution which makes sense for you even if it requires you to swallow your pride. 

When you are involved in the most intimate issues of your life it is hard to make objective decisions. Never agree to something that would hurt you in the long-run just to get to a settlement, but be reasonable. Being in limbo for potentially years not only hurts you emotionally but stymies your progress in life. It also hurts your children who are put in a place of uncertainty. 

Here are a few key points to consider when you decide if a settlement is right for you:

    1. Will you be able to support yourself and or your children with this settlement? 
    2. Are you settling out of fear or based on rational decisions? 
    3. Will this settlement be a good decision 5 years later? 10 years later? 
    4. Have you laid out the key things you are not willing to compromise over and have you compromised? 
    5. Do you feel at peace? 

If you need help resolving your divorce call Diana Mohyi Attorney at Law. She can be your partner in this very tumultuous period in your life. 

The Heightened Fidelity Requirement in Spousal Contracts

Contracts between spouses have a more heightened requirement for fidelity, otherwise known as loyalty, than do agreements between non spouses such a prenuptial agreements. Unlike a prenuptial agreement, spousal contracts occur after the parties have pledged some kind of fidelity to one another through a ceremony or by the act of getting a civil marriage. If challenged, they are highly scrutinized by the courts to determine whether one spouse manipulated the other spouse to sign an inherently unfair agreement. Therefore they must be done properly. 

The two types of spousal agreements are Post-nuptial Agreements and Separation Agreements. 

Postnuptial Agreements are typically signed where one spouse cheated on the other and in order to save the marriage, the cheater conveys property or money to the innocent spouse. The risk in signing these agreements is that either spouse can turn around file for divorce without the need to return the conveyed property to the ‘marital pot’ for splitting. 

Separation Agreements are typically executed where the spouses are not quite ready to divorce but want to memorialize a new living arrangement. Such agreements may contain provisions for spousal support, child support and child custody, among others. They can be converted to an uncontested divorce after a year if certain requirements are met. 

The spouses should be both represented in such agreements because the risk and effort to run to court overturn them is more than just making sure you are properly represented. 

If you are interested in entering a Postnuptial or Separation Agreement with your spouse or a Prenuptial Agreement with your intended, contact Diana Mohyi Attorney at Law so learn how she can assist you.

The Damages Requirement for a Breach of Contract Claim

You say someone breached their contract with you. Start by determining how you will measure your damages because without damage their is no breach of contract claim. Your case will be dismissed.

In New York, like other jurisdictions, a Plaintiff must prove the following elements to bring a claim for Breach of Contract:

(1) formation of a contract between plaintiff and defendant;

(2) performance by plaintiff;

(3) defendant’s failure to perform; [and]

(4) resulting damage

TYPES OF DAMAGES AWARDED BY THE COURT MAY INCLUDE:

Compensatory Damages – Plaintiff is awarded the amount of compensation that would make you whole. For example, price of the contract was $1,000 and as a result of defendant’s breach you had to pay $1,500 for the same services elsewhere. Possible court award may be $500 because you would have had to pay the $1,000 at minium anyway.

Restitution – Defendant is required to refund Plaintiff the money Plaintiff paid to the breaching party.

Liquidated Damages – if your contract has a provision which sets the damages in the event of breach that is what plaintiff is awarded.

Nominal Damages – A damage award made where there were damages were unquantifiable but the court seeks to award the bare minimum for the sake of recognizing the harm. It could be as small as $1.00 so its not worth the time, effort and expense.

Quantum Meruit – Plaintiff is awarded payment for work that plaintiff completed if the defendant who hired plaintiff reneged on the contract before it was complete. Typically a service contract scenario.

Equitable Remedies – The Court issues a declaratory judgement ordering the contract canceled or requiring a specific preformance by the breaching party – a rare remedy because it is hard to monitor.

Punitive Damages – An additional award beyond the basic damages award which generally matches the basic damages in amount. It is awarded to plaintiff punnish morally reprehensible behavior by the breaching party.

How Divorce Jurisdiction Can Be Determined by Your Shoes

Sounds crazy but it happened. The couple lived a bicontinental jet set life. The wife tried to commence the divorce in New York County because, unlike Manhattan, Monaco does not have a concept of shared marital property. The husband contested that the New York jurisdiction was the couple’s primary residence. One of the arguments made was that the wife kept the majority of her valuable shoe collection in Monaco. Read an article here. The New York Court denied jurisdiction, See, First Department Case here.

How do normal people determine jurisdiction for a divorce proceeding?

According to Domestic Relations Law Sec 230, an action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:

  1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
  2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
  3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
  4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
  5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

If you want New York to be your jurisdiction make sure you have proof that you have been living here for the requisite period of time. Start by moving your shoe collection.

If you would like to determine whether New York is the proper jurisdiction for your divorce, contact Diana Mohyi Attorney at Law for guidance.

The Difference between a Contested and Uncontested Divorce

What is the difference between a Contested and Uncontested Divorce in New York? One is cheaper and quicker to accomplish if done correctly. The other can be an arduous painful process lasting years and leaving the wary and unreasonable possibly bankrupt.

An Uncontested Divorce is one where both parties voluntarily sign an agreement which resolves all aspects of the divorce. Every single thing is agreed upon from child custody and child support to maintenance and equitable distribution. Even disagreement on one single issue makes the divorce contested. The parties cannot waive child support and if the calculation of child support is incorrect or unfair, then the court will reject the filing. The time from filing to signing varies between counties. New York County has signed an uncontested divorce order within 3-4 months while the Bronx and Brooklyn has signed it within 6 months. The time periods vary depending on how many people are ahead of you. One mistake can result in a rejected filing which extends the time process.

In a Contested Divorce at least one or more issues is not agreed upon by the parties. A Contested Divorce requires the filing of a complaint for divorce by one party–the Plaintiff—who then serves it on the other party–The Defendant. The Defendant must then either file and serve an Answer to the Complaint or may file a motion to dismiss because they contest jurisdiction. They may, for example, perfer to have the divorce occur in a different jurisdiction that is more favorable to them. Practically speaking it does not matter whether someone is a Plaintiff or Defendant because most divorces are typically filed as no fault, otherwise known as ‘irreconcilable differences’ or ‘‘irretrievable breakdown.’

If you need assistance in filing a Contested or Uncontested Divorce, Diana Mohyi Attorney at Law can assist you to navigate the minefield of Matrimonial Law Practice. Contact her for a consultation.

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