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.

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.

Why Can’t You Get a Divorce in New York Family Court?

It seems obvious that family court should handle all things family but in New York Courts that is not true. According to the New York Family Court Act Section 115, the Family Court has exclusive original Jurisdiction or control, over the following:

    • child abuse and neglect proceedings
    • child support proceedings
    • proceedings to determine paternity and for the support of children born out-of-wedlock
    • proceedings to permanently terminate parental rights to guardianship and custody of a child
    • proceedings concerning whether a person is in need of supervision
    • proceedings concerning juvenile delinquency
    • proceedings involving handicapped children
    •  proceedings concerning adoption and custody of children
    • proceedings concerning the uniform interstate family support act
    • proceedings concerning children in foster care and care and custody of children
    •  proceedings concerning former foster children 
    • proceedings concerning destitute children
    •  proceedings concerning guardianship and custody of children by reason of the death of, or abandonment or surrender by, the parent or parents
    •  proceedings concerning standby guardianship and guardianship of the person
    • proceedings concerning the interstate compact on juveniles
    • the interstate compact on the placement of children
    • the uniform child custody jurisdiction and enforcement act
    •  provided that tribal courts of Indian tribes designated as such by the state of New York shall have jurisdiction over such child custody proceedings involving Indian children to the same extent as federally designated Indian tribes upon the approval of the state office of children and family services 
    • concurrent jurisdiction with the criminal court over all family offenses
    • jurisdiction to direct the commencement of proceedings to suspend the driving privileges, recreational licenses and permits, and license, permit, registration or authority to practice of persons who are delinquent in their child or combined child and spousal support obligations or persons who have failed, after receiving appropriate notice, to comply with summonses, subpoenas or warrants relating to paternity and child support proceedings

In order to obtain a divorce, one must file an action in the New York Supreme Courts. The Family Court only has jurisdiction in matrimonial action only when the case is referred to it by the Supreme Court. If you are seeking a divorce you must file a complaint for divorce in the Supreme Court of the County where the parties were married and either party resided for at least one year prior to the filing pursuant to Domestic Relations Law 230.

If you are confused about where to obtain your divorce and need assistance in filing or defending a divorce action, Diana Mohyi Attorney at Law P.C. can represent you. Contact Attorney Diana Mohyi for a consultation.

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