Why The Best Interests of Your Children in a Divorce Are Not Your Interests

When a married couple with minor children seeks a divorce they often forget that their interests are not automatically aligned with the best interests of their child. If they cannot agree on a custody and visitation arrangement, the Court steps in to protect the children by appointing a children’s attorney aka guardian ad litem and by appointing at least one forensic psychologist or physician to evaluate which home environment would be better for the children. As you may suspect these paraprofessionals can contribute to a very expensive divorce bill. Therefore it is best that the parties come to a mutual decision about custody and visitation without involving third parties who will be required to approve any agreement the parents make once they get involved.

According to New York’s Domestic Relations Law, the parent to be awarded custody is not an automatic assumption. DRL 70 states that “there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child.’ DRL 240 also echos that language. This concept has been expanded in New York’s body of case law resulting in factors which help a court determine what is in the best interests of the child.

(1) The parent who has been the primary caretaker;
(2) The age and health of the parties;
(2) The need for stability and continuity in the child’s life;
(3) The relative financial ability of each parent;
(4) The quality of home environment and the parental guidance each parent provides;
(5) The ability of each parent to provide for the child’s emotional and intellectual development;
(6) The relative fitness of each parent;
(7) The length of time the present custodial arrangement has been in effect; and
(8) The desires of the child.

Ultimately, unless being around a certain parent is inherently bad for a child, a child needs both parents. A child is not property. A child is a human being who only has one set of biological parents. No matter how much a party may hate their spouse, there is nothing they can do to change that so they might as well start by agreeing for the sake of their child.

Why No Fault Divorce Is Always The Best Choice

Even if you are adamant to point the finger at your spouse for the reason you want a divorce, it makes alot more sense to choose the ‘No Fault’ option not only for the sake of time but also resources.

In New York, it is typical that the parties will file for a ‘no fault divorce’ otherwise known as ‘irretrievable breakdown’ because then there is no need to prove the grounds upon which the parties are seeking a divorce. For example, no need to prove the spouse actually cheated on you which not only sounds like it could be messy but it is. Choosing that route will cost alot of time and effort and may even result in you not being able to prove the grounds of your divorce, which is a requirement to obtain a divorce.

According to Section 170 of the New York Domestic Relations Law, there are 7 grounds upon which a divorce may be obtained:

(1) Cruel and Inhumane Treatment

(2) Abandonment

(3) Confinement aka Prison Sentence of a Spouse

(4) Adultery

(5) Judgement or Decree of Separation

(6) Written Separation Agreement

(7) Irretrievable Breakdown for a Period of 6 Months aka the ‘No Fault’ divorce.

If you choose the ‘No Fault’ option you won’t have to hang your laundry out to dry longer than it should. Diana Mohyi Attorney at Law P.C. can help you initiate the divorce and assist you in coming to a resolution that will help you start the next chapter of your life.

The Changing Attitude Towards Prenuptial Agreements

Ivana Trump’s cameo in The First Wives Club (c) Paramount 1996

The prenuptial agreement long carried with it a connotation which was repulsive to young couples just starting out on the adventure called marriage. However, now as couples are getting married later and bring more equal assets to the marriage, they see the document as a wise move. Why might a prenuptial agreement be a wise move? Here are several reasons.

Huge Disparity in Assets Once you marry someone you have chosen to link yourself to another human being in a way that will impact your economic future. You can potentially be put on the hook for their debts but you might also be entitled to their assets. In the stereotypical scenario the young gorgeous gold digger marries the millionaire with missing teeth and stray hairs on his head. Logically she was not in it for love but perhaps he was not either. Although New York Law does put certain limits on maintenance (formerly known as “alimony”) and what is deemed to be a marital asset, based on for example the length of the marriage; the mutual contribution to the ‘economic partnership;’ comingling of previously separate assets, among other factors, it is always possible lose more than you bargained for. Litigation can be unpredictable and the involvement of lawyers can add a great deal of expense—we are not charity workers after all.  Without a prenuptial agreement one must prove certain elements a trial. However, with a prenuptial agreement in place, which was executed in the proper way, much of this hassel is removed.

Protecting Your Children Although New York Law states that child support paid for the children of your prior marriage comes as a priority before maintenance and equitable distribution paid to the next spouse (division of marital assets), the costs of a divorce can be so devastating to one’s finances that they may not recover. As a result your children suffer the consequences of your poor choices. You may not be able to provide each and every opportunity to them that you were able to before. Therefore a prenuptial agreement is a wise move to make sure that your loved ones don’t come along for the rough ride. I once heard a comedian talk about his formerly rich father and his gold digger mother. It was not his mother that caused him the most grief but his father who lost all his money by continuing to choose the wrong partners.

Protecting Your Parent’s Assets As parents get older they may consider placing their assets in joint name with their adult children. New York Law deems that to be a separate premarital asset but try to prove that. If you bring your family to your parents home and your new spouse decided they want to help with the renovations, the spouse may try to argue that it is a marital asset they contributed to. Is that fair to your parents?

Realism Having taken college level statistics, I’m not sure I completely believe the staggering statistic that 50% of all marriages end in divorce. Some of those marriage might be second and third marriages after all. Nevertheless we can agree that the divorce rate has not been decreasing over the years. What better time to decide how to divide up assets than when you are in a frame of mind that you both love and care for each other rather than when you are nursing wounds from being cheated on? I have heard several stories of parents who put assets in the name of their child and his new spouse expecting the marriage to last the 30-50 years that their marriage has gone for. Unfortunately, that is not the trend nowadays. It is time that couples stop being so repulsed at the idea of a prenuptial agreement. In order to have a valid prenuptial agreement the parties must display all assets and liabilities to the other party so you are not being hoodwinked. They can also have a termination deadline called a ‘sunset provision’ and can be modified later if the parties desire. Not every couple may need a prenuptial agreement but when it makes sense it can bring alot of benefit including but not limited to peace of mind.

Get Out of Your Comfort Zone with Laughter

I recently took a standup comedy class Manhattan Comedy School, which ran for 6 weeks. At the end of the class we had a graduation show in which I performed. Click to See my 3 minute stand up comedy bit here.  Initially I had intended to take this class to distract me from my usual. I gained so much more. I learned how people process information so that they can be suprised by your punch line. I also learned how to look at my environment and background for the absurd so that I could bring joy to myself first and then others.

The point I am making here is that it is important to stop taking the world around you so seriously that you cannot even experience joy at the inconveniences which are in fact absurdities. For example, the New York City Subway is like a Three Stooges movie every single morning. Everyone is crammed into a train which is not big enough to fit them. The fact that I occasionally get chased by a pair of expensively bred dogs whose owner’s only excuse for that behavior is that they are a bunch hormonal bitc**s. By the way it feels no different than when I’m in court at times.

The inconveniences we experience in life are actually gifts in disguise. They challenge us to stop staying stuck in our usual routine. The same thing happens when one has a business dispute, divorce or landlord tenant issue. Those challenges are merely life’s way of shaking things up a little. Diana Mohyi Attorney at Law P.C. can represent you in your civil litigation matter so that the challenge that irked you helps make you stronger and wiser in preparation for life’s next challange.