When is a Child Support Modification a Bad Idea?

You see your ex in a brand new car and you rush to file a petition for an upward modification of child support in family court. What could possibly go wrong? 

A Child Support Modification is typically allowed every three years, when the party’s income changes by at least 15% and only with a substantial change in circumstances. 

When bringing a child support petition it is important to be absolutely certain that the child support payor’s income has increased significantly enough that such a motion would be fruitful. Otherwise you will waste alot of time and attorney fees for nothing. Furthermore, if the payor’s income has dropped significantly or your income has increased significantly over the years, you may end up being paid nothing. In certain circumstances, where physical custody is shared, you may end up paying the other party child support.

An increase in income  also includes imputed income from other sources that may have caused a dramatic improvement to the payor’s standard of living. For example, the ex may be receiving money from a significant other or their parents which is also part of the child support calculation. 

If you suspect that the child support payer in your life has dramatically increased in their income, contact Diana Mohyi Attorney at Law P.C. for a consultation. She can be your partner in this matter to help you avoid mistakes that cut into your ability to care for your child.

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.