Can I invalidate a prenup?

This question came up recently: "I signed a prenup before we got married giving up my rights to my husband's assets, however I gave the past 15 years to raising my sons and taking care of our home and do not have any money to my name. What can I do now? Can I invalidate this old prenup?" -Y.L.

Drafting a prenuptial agreement is great, However, it will not always be accepted by the court, depending on the agreement itself (its validity) and the circumstances surrounding it.

Amongst other things, changed circumstances can invalidate a Prenuptial agreement. 

  The enforceability of a prenup can come down to “crossed t’s and dotted i’s.” Even the smallest of errors could render a prenup less than airtight.

The enforceability of a prenup can come down to “crossed t’s and dotted i’s.” Even the smallest of errors could render a prenup less than airtight.

There is a three prong test for determining enforceability of a prenup: (1) there was full financial disclosure; (2) that the party sought to be bound knew and understood the terms and conditions; and (3) that the agreement be fair and not unconscionable, i.e. that it not leave a spouse a public charge or close to it, or with a lifestyle far below what was enjoyed before or during the marriage. 

Upon establishing a change of circumstances, a spouse may apply to the court for a modification of the agreement.

In summary, there is no type of prenup that always stays air tight and iron clad. If there is a substantial “change of circumstances” then most courts will reevaluate a prenup under the standard of determining if the agreement is reasonable. The most common change of circumstances is a health condition, a loss of a job, or a failed business. The family courts try to fair, and if a spouse’s fortune has deteriorated since the execution of the prenup, then most judges will reevaluate the agreement and assess whether justice can still be achieved if it is enforced.

You can always call us at Law Offices of Mindin & Mindin, P.C. to take a look at your prenup and for legal advice on how to proceed with your matter. You can reach us at 888-501-3292 or by clicking here.

My wife and I did not draft a prenuptial agreement before our wedding because we were young and did not have anything. What can I do now to protect my interests in the event of a divorce?

What is a Postnuptial agreement?

A postnuptial agreement is a legal contract signed after a couple enters a marriage. It dictates how the couple’s financial affairs and assets will be divided in the case of divorce or separation. In it you can spell out the division of all property acquired individually and together from both before and after you said your vows. This document can also include details about incurring debts and spousal support. (It can even address things like division of labor at home.)

Even though post nuptial agreements are not as numerous as prenuptial agreements, they are increasing in popularity. Your marriage does not have to be on the rocks to make the plunge to protect yourselves. The benefits can help you have a more peaceful future if you choose to ever end your marital relationship.

A recent survey of members of the American Academy of Matrimonial Lawyers (AAML) found that about half of all responding attorneys cited an increase in post nuptial agreements during the past five years.

The survey also showed that the request to create a postnuptial agreement is typically made by both spouses (rather than just one), indicating that it is for the spouses’ mutual interest that a postnuptial is created.

Also, people may shy away from a prenuptial agreement before marriage because they consider it “unromantic” to see their future marriage as a business relationship, but after the wedding (and after a few years of marriage) they may have a clearer sense that marriage is about both your emotional and economic health.


Why choose a postnuptial agreement?

Most people enter into a postnuptial agreement because the financial status of one or both of the spouses has changed significantly since the wedding day. Like a prenuptial agreement, the postnuptial can:

  • Determine the extent to which one or both spouses is the recipient of income from various sources.
  • Determine who is responsible for the debts from various sources.
  • Be used for a spousal waiver of benefits from a retirement account.
  • State the details of the division and/or distribution of property in case of divorce or death.

What are the guidelines for creating the agreement?

You do not have to have created a prenuptial agreement in order to create a post nuptial agreement. You can call us at 888-501-3292 and we will discuss how we can help you with this crucial document.

As with a prenup, a postnuptial is valid only if it is created under two conditions:

1) There must be "full disclosure" between the two parties, in order that there will not be a finding of fraud, misrepresentation, or duress. Both you and your spouse must thoroughly disclose your financial details: income, assets, and liabilities, in the document.

2) Each spouse must individually be represented by separate attorneys prior to signing the agreement, again to reduce the risk of drafting and agreeing to an unfair agreement.

In addition, each spouse must sign the postnuptial agreement, and the agreement must be notarized. Let us at Law Offices of Mindin & Mindin, P.C. handle all that for you. Contact us by e-mail or phone at 888-501-3292 today for a free consultation.

Will I have to pay my ex spouse's student loans?

Who is responsible for repaying student loans?

New York is known all over the world for its amazing educational offerings and historic institutions. We all know that an education for most includes a very high burden of private and federal student loan debt. The average amount of debt in the United States is currently around $30,000 but anyone who has gone to medical school, law school or for their Ph.D can tell you that it is far more than that. New York is an amazing city but it comes with a high cost of living, high rents, food expenses and coupled with a massive loan payment you may be thinking about what would happen if you were ever to get divorced...Who will be responsible for these student loans in the event of a divorce?

In New York, it will depend on whether the student loan debt was accumulated before the marriage or after the marriage date. Unless there is a prenuptial or postnuptial agreement, New York considers whatever loans were accumulated before the marriage to be separate property. New York is a state that follows the legal theory known as Equitable Distribution. Unless a prenup or postnup to the marriage says otherwise, any debts or assets that are accumulated during the marriage before the separation or divorce are subject to equitable distribution.

Student loans taken out before the marriage by one spouse (unless otherwise agreed in a prenup) remains their responsibility for the duration of that note. Even if one spouse assists the other in making payments (as is often the case) the spouse will assume the full burden and responsibility upon separation or divorce.

What if I took student loans out while I was married?

This is where it gets tricky and you will need the assistance of a New York matrimonial attorney from Law Offices of Mindin & Mindin, P.C. You can call us anytime at 888-501-3292 for a free consultation. Under New York law, when one or both spouses obtained higher education degrees during marriage, depending on involvement and level of support, their spouse is entitled to some percentage of their enhanced or increased earning capacity. When the court has to determine how to divide up student loans in a New York divorce, it will examine what the purpose of the loans was, whether it be for tuition, books, housing, food, clothing, etc...

When dividing student loans that are taken out during the course of a marriage, the New York courts consider other factors such as a difference between the ability of the parties to pay off the debt. Think of it this way, if the spouse who did not take out the loans but had regularly been helping out with the payments makes substantially more money than the other spouse, the court may order the higher earning spouse to assist in repaying the loan(s). Every situation is different, and the court will interpret on a case-by-case basis. This is where you need a lawyer who will help you present the facts to best support your position. Contact us today at 888-501-3292 or by e-mail to discuss your unique set of circumstances. We are ready to help you TODAY.

Marriage Proposals and NY Prenup Agreements

How Can a NY Attorney help you with Your Engagement?

There are countless couples eagerly preparing for a romantic Valentine’s Day, some out there hoping their significant other will get down on one knee and ask the magic question they have wanted to hear.

"Will you marry me?".

 Click the image to learn more about marital (pre-nup and post-nup) agreements.

Click the image to learn more about marital (pre-nup and post-nup) agreements.

Many couples will get engaged on Valentine’s Day. Suddenly everyone is taken away by the excitement, planning a lavish dream wedding, finding the perfect dress, tuxedo, flowers, making a guest list and the list goes on.

With approximately 50% of all first marriages failing and a larger percentage of remarriages failing in the U.S., protecting yourself financially should, in the "unlikely event" the love fades, be your number one consideration.” Now what most people don’t realize is prenuptial agreements are not just for the rich. Prenuptial agreements should be considered by all couples planning a marriage. We can all agree that a pre-nup is not very romantic, they are a practical tool for helping manage financial affairs should your relationship unfortunately break down.

A prenuptial agreement is signed by the couple before the wedding ceremony. So in addition to planning your wedding, picking flowers and choosing a band, consider meeting with an attorney so you can both be properly protected. And don’t wait until the last minute because your significant other needs a chance to review and the terms need to be just right.

If you are considering a prenuptial agreement here are some of the issues I can help you sort through before the big day:

  • Finances
  • Property
  • Inheritances
  • Children
  • Careers
  • Pets
  • Separate Property

A prenuptial agreement will save a lot of time, money and heartache in the future. For a prenuptial agreement to be fair both parties must share financial information, be in touch with what they truly want and need, not be unduly pressured to sign one, and each party should have an attorney review the prenuptial agreement once drafted to make sure all the key issues have been addressed and both parties are protected.

If you would like expert prenuptial guidance give our firm a call at 888-501-3292. We will be happy to answer your questions, give you some guidance and help you protect your rights.

Feel free to CONTACT US at Law Offices of Mindin & Mindin, P.C. for a free consultation.

Child Visitation help in Brooklyn

How can I get visitation with my child in Brooklyn NYC? Do I need the help of a lawyer?


Many parents feel a great deal of guilt over the way their marriage or relationship with their significant other ended. When there are kids involved, this may complicate the situation and result in a lot of hard feelings and anxiety for both parents.

 A custodial parent may try to turn your child or children against you or may refuse to let you see your children. Does this sound familiar? Sound like a scenario that applies to you? 

The court sometimes has to step in when children are being put in the middle of "grown up" relationship problems. As long as the non-custodial parent is fit, the Courts quickly give non-custodial parents reasonable visitation rights with their children. The courts will not deprive a biological parent reasonable and meaningful access to their children unless there are exceptional circumstances (such as there is substantial evidence that visitation would be detrimental to the welfare of the child or that a parent in some manner has forfeited his or her right to such access) to do so.

The Courts want to see that the relationship between a child and the non-custodial parent grows and are generally against interfering with the development of the relationship between the non-custodial parent and their children. Fight for your rights as a parent and get involved with your children! Do not take a passive role! Your children need you more than ever. Contact Law Offices of Mindin & Mindin, P.C. at 718-785-3292 for a free consultation.

What to do if I'm paying too much child support in New York?

Are you paying too much in child support?

There are many individuals that are overpaying Child Support payments. The law says that you can modify your Child Support payments if you have experienced a Change in Circumstances since the last child support order was made.

Many individuals, despite having changed circumstances, don't act and wait around or procrastinate and let arrears build up to an unmanageable amount or even losing their driving privileges due to non-payment before applying for a Modification. Please be advised that until you apply for a Modification of your existing Child Support Order, your arrears will continue to grow!

We are your New York Family Law lawyers and have worked on numerous Child Support cases. We charge very reasonable attorney’s fees for our services. Call us at 888-501-3292 for a free phone consultation.

*Prior results do not guarantee a similar outcome.

New York State LLC Formation for small businesses

Let the Law Offices of Mindin & Mindin, P.C. help you with your New York LLC Formation!  Call us to discuss your legal concerns and any other questions you may have about the process of forming a New York Limited Liability Company.  We are not a paralegal service where you don’t get to speak to a real New York attorney.  We are a small business law firm where every client counts.

We will form your New York LLC and get you off to a right start by answering any questions you may possibly have.  A New York LLC is the most flexible form of entity to start a New York Business today.  You will have a protective shield of limited liability but fewer formalities than with a C corporation or an S corporation.  You will have an opportunity to get to know our lawyers and will be able to reach out to us at any time after your New York LLC formation. 

Our New York LLC Package:  $500 plus $260 in State Filing Fees

What does that include?

  • Consultation with an Attorney (ask any questions you may have!)
  • Name Availability Check

Click here to contact us for LLC Formation

  • Preparation and filing of all LLC papers, including an operating agreement for a single member (inquire about package price for 2 member LLC)
  • Formation of LLC within 24 hours (if fees paid before 11:00 a.m. Monday through Thursday, LLC can be formed by next day)
  • Certified copies of LLC documents
  • Assistance with federal Tax ID number and EIN
  • LLC publication 

What happens when ACS Oversteps?

Bronx ACS Oversteps Its Boundaries

A 10-year-old girl's mother thought she was doing the right thing when she vented her frustrations to her NYC ACS caseworker that she often times felt frustrated with her daughter's temper tantrums. 

Her 10 year-old had been diagnosed with ADHD. The agency had been involved with the mother due to the domestic violence she and her daughter had suffered at the hands of her former boyfriend. The agency was simply supposed to be providing "preventative services" to the mother and child. These would be things like assistance with counseling, transportation and  housing. She never in a million years dreamed that confiding in the child welfare worker would result in her daughter being taken away from her. 

Our Bronx ACS lawyers recognize that this may be an all too common scenario, not only in the Bronx but throughout New York City. Case workers are trained to work closely with families in need. They gain the trust of the families with whom they work. The problem is that many of these caseworkers are often over-worked and underpaid. They don't always have the time or resources to launch a proper abuse or neglect investigation. But they don't want to be the one left holding the bag if something happens to the child. Believe it or not, it becomes an easier job for them to simply have the child removed. 

One option for children fighting to regain custody of their children is a program called the Child Welfare Organizing Project. It's a peer-to-peer guidance and counseling operation that offers an outlet for parents accused of neglect or abuse. Fellow graduates are then asked to attend the child safety conferences of their peers.

The program was founded in 2007 in Harlem. Records show that in looking at data from 2010 to 2012, those parents who were involved in CWOP lost custody of their children in 15.5 percent fewer cases. A similar program offered by the Center for Development and Family Services Inc. is available in the Bronx, Staten Island and Manhattan. 

What is likely to help to an even greater degree would be the involvement of a Brooklyn attorney experienced in handling ACS cases. While a parent peer advocate can attest to the judge your commitment to improved parenting, your attorney can aggressively challenge any unsubstantiated claims, request certain claims be returned unfounded and ask that your record be expunged. 

The good news is that the ACS workers have become less inclined than they were just a few decades ago to put children in foster care. Where there were 50,000 children from New York City in foster care back in the early 1990s, that number is now down to about 12,100. 

Still, for those families stuck in the system, it can have a profoundly damaging and long lasting effect. We are dedicated to helping families reunite - and remain together. 

If you are the subject of an ACS investigation in the Bronx, Brooklyn, Staten Island, Manhattan or Queens call our offices at (888) 501-3292.



NYC ACS is after me!

Who are these people making claims against me?!

For parents there is sometimes nothing scarier than hearing from ACS (New York City Administration for Children's Services. Often times the letters, phone calls or visits from an agent are unwarranted. It is possible a spiteful ex or an erroneous report from a hospital visit might report to ACS that your child is being physically abused or neglected.

Errors are common and is often the case due to mandated reporters. 

Who is a mandated reporter?

Certain professionals are required by law to report suspected child abuse or maltreatment to the New York State Central Register (SCR) of Child Abuse and Maltreatment, also known as the Child Abuse Hotline. The law also assigns civil and criminal liability to those professionals who fail to comply with their mandated reporter abilities.

Mandated reporters are required to report suspected child abuse or maltreatment – or cause a report to be made – when, in their professional roles, they are presented with reasonable cause to suspect abuse or maltreatment.

Reasonable cause to suspect child abuse or maltreatment means that, based on your observations, professional training and experience, you feel the parent or person legally responsible for a child has harmed that child or placed that child in imminent danger or harm.
 

Such reports can be detrimental to your custody of your child, professional license or even your divorce proceeding. If you find yourself in need of representation before the ACS, do not hesitate, call Law Offices of Mindin & Mindin, P.C. so that we may assist you through this process. Call us at 888-501-3292 or send us an e-mail using the Contact Form

What are the basic elements of a New York Employment Discrimination case?

 

Are you a New York City resident who feels they are being discriminated against at their work place? Did you lose your job due to discrimination? Take a look at the list below. There you will find what are the basic elements of a workplace discrimination claim and a hostile work environment/harassment claim. 

If you answer yes to any of the sub-items in 1, 2 or 3 below for a discrimination claim, or any sub item in 4 or 5 below for a harassment claim, you should contact us immediately to discuss. We offer a free one hour consultation at our office. Contact us by phone at 888-501-3292 or e-mail us anytime.

  1. Have you been discriminated against because of your:
    • Race
    • Color
    • Sex
    • Religion
    • National Origin
    • Age (over 40)
    • Disability
    • Pregnancy
       
  2. Has a negative employment action been taken against you?
    • Have you applied for a job and not been hired?
    • Have you been fired?
    • Have you applied for a promotion and not gotten it?
    • Have you been demoted?
    • Have you been disciplined?
    • Have you suffered a cut in pay or benefits?
    • Have you not received the same increase in pay or benefits as similar employees outside your protected class?
    • Have you received a poor performance evaluation?
       
  3. Do you have direct or indirect evidence that a negative employment action has been taken against you?
    1. Direct Evidence: Your employer has specifically stated that its motive in taking the action is discriminatory (rare)
    2. Indirect Evidence:
      1. Were you fired?
        • Were you qualified for the position and satisfying your employer's legitimate expectations?
        • After you were fired, did your employer seek a replacement with qualifications similar to yours?
      2. Are You Still Employed?
        • Were you satisfying the employer's legitimate expectations?
        • Did you suffer an adverse employment action (demotion, pay cut, discipline, etc.)?
        • Were similarly situated employees outside your protected class treated more favorably under similar circumstances?
           
  4. Have you been subject to harassment causing a hostile work environment based upon your membership in a protected class (listed in item 1 above)?
    1. Is the harasser a co-worker?
      • Can you show that your employer knew or should have known of the harassment and failed to take reasonable corrective action?
      • Have you reported the harassment to your employer?
      • Has your employer taken reasonable corrective action?
    2. Is the harasser a supervisor?
      • Is the harasser a person who has the power to hire, fire, promote, demote or discipline you?
      • Has the harasser/supervisor caused a negative employment action (see item 2 above) to be taken against you?
      • If no negative employment action has been taken against you, have you not complained to HR because the complaint would go through the harassing supervisor or does your employer have a history of ignoring complaints, and therefore the complaint would be futile?
  1. Have you been sexually harassed as a condition for employment ?
    1. Have you been subjected to unwelcome sexual advances, requests for sexual favors or other physical or verbal conduct of a sexual nature?
      • Was submission to this conduct made either explicitly or implicitly a term or condition of your employment?
      • Was your submission to or rejection of such conduct by your employer or supervisor used as a basis for an employment decision affecting you?
      • Was there a consensual sexual relationship with the supervisor?