October 8, 2014

The Unofficial, Long-Term Marital Separation

Thumbnail image for The Unofficial, Long-Term Separation By Andrea VaccaSomething I have been seeing more and more in my practice as a mediator and collaborative attorney are couples living apart for long periods of time, without being legally separated.

For various reasons, many married couples decide to separate for years without having any legal agreements in place. They don't realize until years later when one of them is seeking a divorce that the legal, financial and emotional issues caused by the years of separation can become very difficult to resolve.

Below are just some of the pitfalls that people encounter when they separate unofficially:

  • When two spouses start living separately, the clock starts ticking on a new status-quo. Eventually, the lifestyle maintained by the lower-earning spouse during the separation can become the standard for the amount of spousal support that is required in the future.
  • Non-legal separations do not necessarily end the legal financial union between spouses. That means all the money earned - or debts being incurred - by either spouse may still be considered part of the shared marital estate.
  • The higher earning spouse is not necessarily going to get credit under the law for the amount of support they've been providing.
  • Once a couple moves into separate residences, communication between them can break down even more than it was while they were living together, which makes negotiating a separation agreement even harder than it has to be.
  • If either spouse starts a new relationship and spends money on the new partner, it can be considered a "waste of marital assets," which can result in complicated requests for repayment (financially as well as emotionally).

Often times, clients will be dealing with many of these consequences all at once. For example, a client of mine was supporting her husband for 10 years after she moved out. He was still hurt by the fact that she left him and, because she felt guilty, she still gave him access to her credit cards and she was still depositing her paychecks into a joint account. They hardly spoke and had each moved on to new relationships but the hurt and guilt was still there.

I had to tell her that her husband had every right to expect that the comfortable lifestyle she had provided for those years would continue. It was difficult for her to accept this fact, but she eventually agreed to give her husband some significant real estate holdings she had acquired during their separation in order to reach an agreement with which he was comfortable. This was despite the fact that she had already paid a small fortune to support him and they had lived the majority of their married life apart.

As we were getting ready to sign the settlement agreement, she explained the reason for her generosity:

"I know I gave him more than I needed to, but I was ready to finally move on with my life and I decided it was better to give my money to him instead of our lawyers."

Why unnecessarily give money to anyone? If you are ready and willing to deal with the legal, emotional and financial issues of your separation, before you actually decide to move out, you will be better-protected in the long term. Let a mediator or collaborative attorney help you negotiate a written agreement where the needs of both you and your spouse will be considered. It will not only help to bring emotional closure to your relationship, but will protect both of you from potential legal and financial entanglements in the future.


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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

September 22, 2014

Plan to Have a Great Marriage

Plan To Have A Great Marriage By Andrea VaccaI recently read an article on The New York Times wellness blog by Tara Parker-Pope called 'The Decisive Marriage.' In it, Parker-Pope explores the research gathered through The National Marriage Project and asks how does being decisive - or not - affect a marriage? Though it is not mentioned in the article, I thought some of the points would be especially helpful for people considering a prenuptial agreement. Parker-Pope writes:

Couples should make active decisions about their relationships and major life events. Showing intent in some form -- from planning the first date, to living together, to the wedding and beyond -- can help improve the quality of a marriage over all.


Prenuptial agreements are, by definition, a written agreement reflecting the intentions of the parties regarding their marital rights and obligations. By looking together toward the future, prenuptial agreements can help the couple to purposefully plan for this important, next stage of their relationship. Questions can be discussed and answered such as:

  • How will property be divided upon death or divorce?
  • Will spousal support be paid? If so, under what conditions?
  • How will household expenses be paid during the marriage?
  • Will having children result in different financial terms?
Negotiating a prenuptial agreement does not have to be an inherently unpleasant process.

When I'm representing the person who is initiating the agreement, I start by asking him or her: Why do you want this type of agreement? What is important to you? What do you hope to achieve? I then suggest options that can help the client to achieve his or her goals and I coach each client about how to discuss these goals with his or her fiancé. Ideally, I will not start drafting the agreement until I know what terms the couple may agree on and what issues will need further discussion.

When I'm representing the person who is being asked to sign an agreement, I am very often asked to review a document that has already been drafted. I advise my client about what would happen if they signed this particular document and ask questions to determine if this agreement meets their expectations and goals. If changes are needed, I will speak to the other attorney and will often suggest a 4-way meeting with the clients so that we can help them discuss the open issues in a safe and productive environment. If the couple is open, honest and decisive, the process can be a positive experience for both parties.

And when I'm working with a couple in mediation who are negotiating their prenuptial agreement, I'm not only helping them to answer all of these questions, but I'm helping them to find terms that will allow both of them to feel safe and secure enough to enter into their marriage.

Everybody wants their marriage to "start out on the right foot," give it the "college try," and live "happily ever after." Instead of a marriage based on cliches and crossed fingers, I suggest going off the script with your fiancé and talk about the expectations of your life and marriage. If you enter into your marriage with this kind of decisiveness and intention, there is a much better chance of happiness and success.


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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

August 31, 2014

Maintaining Control in the Midst of Divorce

Maintaining Control in the Midst of Divorce By Andrea VaccaThe feeling of or ability to be in control can be an elusive concept to many, and the lack of control can be a source of anxiety to those who crave it. When it comes to personal matters, like divorce, the need for control may be even greater. The feeling like one is not in control of his or her own future or relationship is a common frustration expressed by divorcing couples who are litigating and at the mercy of the court system. Luckily, there are alternative options for couples wishing to seize control of their divorces.

Mediation and collaborative law are private processes. These processes keep everything between just you, your attorneys and any other professionals who you invite into your case.

Besides offering privacy and dignity, the mediation and collaborative law processes also provide a degree of control that is absent from the court system:

  1. You meet at times that are convenient for you and your spouse and that work with your schedules, not the judge's.
  2. You're not sitting around the courthouse, for hours at a time, waiting for your case to be called while your attorney is billing for the time she is sitting next to you, checking her emails.
  3. While you are expected to provide full financial disclosure, you're trusted to do so and you will be asked questions in a respectful way.
  4. You won't be cross-examined and attacked by your spouse's attorney.

Over the years I have noticed that mediation and collaborative law tend to attract many business owners and consultants. My theory is that these types of clients are used to having more autonomy and control over their personal lives, and they don't want to give that up just because their marriage is ending. Yet, striving for this type of control around your divorce process makes sense even if you are holding down a job with regular hours. Divorce is hard enough without also fearing that you are going to lose your job, or that your childcare provider is going to quit on you because you can't keep your schedule regular.

In mediation and the collaborative process, you and your spouse are in control of the times when you meet and the issues that are discussed at each meeting. You are encouraged to say what is important to each of you as you work toward your agreement. If you expect that this kind of communication will be encouraged in court or that you will have the chance to "explain your story to the judge," you will be very disappointed. Once you are in litigation, not only will your attorney tell you not to talk to your spouse, he or she will also make it clear that you are not to speak to the judge unless you are asked a direct question. While the attorneys are arguing your case to the judge and arguing with each other, you and your spouse will be expected to sit quietly and just wait to be told what's going on.

Don't just sit there! Take control of your divorce by exploring mediation and the collaborative law process at www.vaccalaw.com.


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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

July 16, 2014

Who Supports the Boomerang Kids After a Divorce?

Who Supports the Boomerang Kids After a Divorce By Andrea VaccaWorking outside of the court system allows divorcing parents of the boomerang generation to consider, discuss and plan for when their adult children return home.

In the New York Times Magazine, there was recently an article about the boomerang generation. Kids are coming out of college and moving back home with their parents, perhaps after unsuccessfully trying to live on their own.

Regardless of whether this is a savvy way for kids to save money without sacrificing a certain lifestyle, or a sign that they are just not able to take care of themselves in this economy, the fact is that these boomerang kids aren't a temporary phenomenon. They appear to represent a new life stage. The article states:

"One in five people in their 20s and early 30s is currently living with his or her parents."

So, there is a 20% chance that adult kids might boomerang. And even if they aren't living at home, there is a great chance that these kids are still partially dependent on their parents for help with rent and other expenses. When the parents of this generation are still living together, they can have a conversation that asks, "What are we willing to do to support our adult children?" But when the parents are divorced, that conversation is a lot harder to have.

A real benefit of resolving a divorce outside of the court system, through collaborative law or mediation, is that these parents can have a facilitated discussion, during their negotiations, about what would happen if their adult child returned to live with one of the parents.

A judge in a litigated divorce will not want to hear anything about this possibility, because courts only require child support to be paid until the age of 21 in New York (and even younger ages in other states). If divorcing parents are relying on a court to tell them what the child support should be, the parent with whom the child moves home is going to be stuck supporting the child on his or her own. There will be no obligation for the other parent to help out financially, and the courts will not be able to change that fact.

Divorcing parents need to have a conversation about, and plan for, the boomerang generation. One option that clients have considered is to set money aside from their distribution of assets and hold those funds in a joint account in the event the child moves back home. If holding funds aside is not an option at the time of the divorce, the divorcing parents can make sure the agreement clearly states that if an adult child asks to move back home, the parents will use mediation, or work with a financial neutral professional, to figure out how to share the costs. The adult child can even be a part of the discussion. Some questions that need to be answered are:

  • What will be the increased costs when the child is living at home?
  • What will be the child's financial and non-financial responsibilities?
  • How much extra is needed from the other parent and what can they afford to give?

With college loans rising, and companies being slow to make new hires, the boomerang generation is becoming a more permanent subset of the economy. What is now a 20% chance of adult children returning home may increase until the economy is - once again - able to support them. The boomerang generation is the new reality, and it makes sense for divorcing parents to at least consider this issue as part of their divorce negotiations.

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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

June 19, 2014

Financial Infidelity and Divorce: It's Complicated

Financial Infidelity and Divorce: It's Complicated By Andrea VaccaThe legal, emotional and financial needs of couples divorcing due to "financial infidelity" are often complex.

When many people hear that "infidelity" was the reason for a divorce, they automatically assume it has to do with sex. More and more often, however, I see that "infidelity" with money is the reason why marriages are ending.

Where physical infidelity may have happened once, twice, or within a limited amount of time, financial infidelity has probably occurred over an extended period, and has done much greater damage.

Financial infidelity includes such actions as:

- Not paying taxes that your spouse believed had been paid
- Secretly spending money to fund an addiction
- Using a spouse's Social Security number to open new credit cards, and proceeding to max them out

This type of betrayal usually goes on for years before the unsuspecting spouse wakes up and realizes its extent. Maybe the unsuspecting spouse had a feeling that something was amiss, but he or she did not want to look too closely for fear of having to change the family's lifestyle. (The financially-dishonest spouse is usually the higher wage earner.)

Whenever the extent of the betrayal is discovered, it is not uncommon that a harsh light will be shone on the relationship and awaken other issues in the marriage.

Whether the financial betrayal is the result of trying to "look good" in the face of an unsustainable lifestyle, or needing funds to feed an addiction, the end result is the same: the divorcing couple is in deep legal, emotional and financial distress.

Financial infidelity is not easy to simply "forgive and forget." If the couple divorces, they will be dealing with the emotional pain of betrayal and the long-term financial implications that result. Reacting by hiring an aggressive attorney may seem like a rational response, but given the often precarious financial situation these couples are in, it's often far from the smartest reaction.

More pragmatic couples will let the hurt, shame and anger subside a little before moving forward with the divorce. This allows them to see that - just because trust was badly abused during the marriage and there was little to no transparency around finances - it is still possible to come to a fair and equitable agreement outside of court.

Not only do these divorcing couples need specialized legal assistance (whether in the areas of divorce, tax, and/or bankruptcy law); but they can use coaching to help them work together in spite of the emotional pain; and financial advice to help them clean up the mess and move forward with their divorce - and their post-divorce lives.


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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

May 12, 2014

Conscious Coupling: Using Prenuptial Agreements to Build a Healthy Marriage

Conscious Coupling: Using Prenuptial Agreements to Build a Healthy Marriage By Andrea VaccaGwyneth Paltrow and Chris Martin have made the news lately with their "conscious uncoupling" - a new term for a mindful divorce that is an excellent example for separating couples to learn from.

Like most people, I had never heard of this term until it was talked about in the media. As it turns out, whether I knew the term for it or not, the philosophy behind conscious uncoupling is exactly why I encourage my clients to use the collaborative law process or mediation when they are ending their marriages. It is also the reason why I use these non-adversarial processes to help couples enter into prenuptial agreements; it's what I call conscious coupling.

Conscious coupling - as opposed to Paltrow's and Martin's uncoupling - is best embodied in a well thought-out and fair prenuptial agreement. Instead of focusing on keeping as much of a party's income and assets out of the hands of the other spouse in the event of divorce, a prenuptial agreement that is entered into consciously will focus more on:

- Each party's needs and interests
- The type of life that the couple is planning together
- The long-term implications of the decisions that they're making

Conscious coupling requires the parties to be communicating with each other during the negotiation process of their prenuptial agreement. When someone takes an "I'll just let the lawyers get involved" kind of attitude, there is the potential for the process to become very adversarial, very quickly - and even worse, it might turn into a fight between two lawyers' egos. That approach really doesn't make a lot of sense if you're planning to have a healthy, honest and long-term marriage.

The way that I like to facilitate prenuptial agreements is to either:

- Mediate the process, which means the couple meets with me together, and we discuss what is important to each of them. For example, if one person wants the prenup to protect their premarital assets and limit the amount of spousal support they may have to pay in the event of divorce, what will the other person need to feel safe and secure entering into the marriage?

- Work collaboratively, which means that the parties sit down with their collaborative attorneys and everyone can talk about their interests and needs, as well as the goals for their marriage. By encouraging honesty and transparency, the parties are encouraged to talk to each other, not at each other - and certainly not through their attorneys.

Whether through mediation or the collaborative process, my clients are entering into the marriage with a lot more clarity about what they each need and what's important to them.

There is a lot to consider before entering into a prenuptial agreement, but the end result is a much better agreement that will allow each party to feel secure during the marriage. This is because the terms were arrived at much more consciously - and not based on fear and anxiety and the other raw emotions that are so common when discussing money issues at the beginning of a marriage, or the end.

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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

April 16, 2014

The "Good Enough" Agreement

The Good Enough Agreement By Andrea VaccaWhen a couple divorces, it is usually the case that neither party gets everything he or she wants. Understanding and accepting this fact before you start the divorce process can help make the process less costly - both financially and emotionally.

One of the many things I have learned from my family law clients over the past 20+ years is that when they strive for an outcome (whether via agreement or court order) that provides them with everything they want, they are inevitably disappointed. Perfection is not achievable in life and it's certainly not achievable in divorce. Instead, I encourage my clients to think about what a "good enough" outcome would look like.

For example, if we're talking about spousal support - How much money per month do you really need or can you afford to pay? What are the most realistic options that are available to you now that there will be two households instead of one? Many times sketching the financial picture makes people cringe - especially if they're being told things that they don't want to hear, such as "You have too much debt," or "You're going to have to return to work." But sometimes there is no way around these facts. It's better to accept reality and work within those parameters, rather than to strive for an outcome that may look perfect to you but will leave your soon-to-be ex (and perhaps the children) suffering terribly.

The dangers of striving for perfection are also seen when negotiations have led to an outcome that both parties feel comfortable with, only to have one party move the goal post and suddenly insist they need to get more of something or give less of something else. Perhaps it's human nature to think: "This would be even better, if only..." but this mindset poisons negotiations and agreements - and can destroy whatever good faith a couple has built up during their settlement discussions.

To keep the good faith alive, I encourage my clients not to strive for perfection in their agreement, but simply to strive for enough. Author Bob Perks wrote about the idea of "enough" after talking to a man at an airport whom he had just witnessed wishing his parting daughter "enough." The man explained:

"When we said 'I wish you enough,' we were wanting the other person to have a life filled with just enough good things to sustain them."

This is the advice I give my clients - I encourage them to think about what is enough to sustain them in a place where they are safe and happy and can move forward with their post-divorce lives. To get to this place, they need to focus on the things they need instead of the things they want or have been told they deserve. And I encourage them to choose an out-of-court divorce process, such as collaborative law or mediation, that will allow them to be as creative as they need to be. This will help them be sure that their agreement will give each of them enough under the circumstances and will be fair and durable enough to stand the test of time.

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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

March 27, 2014

Play it Where it Lands

Play it Where it Lands By Andrea VaccaI was reading an article at psychologytoday.com that highlighted a story that made me think about how important a person's response to difficult life changes, such as the end of a marriage, will drive the experience.

Reading the article I learned that while India was under British rule, a posh golf course was constructed in Kolkata (Calcutta). The course was home to monkeys, who developed a habit of picking up balls in play and throwing them. After years of trying to solve the problem by expelling the monkeys, the golf course resigned itself to the reality of the situation.

So it changed the course rules: Where the monkey throws or drops the ball is the place from which it must be played. That is a great metaphor for divorce.

Whether it was your choice to end the marriage or not, divorce is an extremely difficult event to deal with. But what would it be like to play the ball where it's been thrown; even if it's in the sand trap? The more likely you are to respond with calmness and acceptance, the more likely you are to open yourself up to other options and possibilities; and the more likely you are to move forward in a way that will allow you to find happiness in the future.

I saw a good example of this type of acceptance in a client recently. She believed that she and her husband had reached an agreement in mediation, but her husband began to have second thoughts about the terms and proposed some major changes to the proposed agreement. My client was angry and repeatedly tried to convince her husband that rather than go back on his word he should agree to the terms they had originally discussed. Meetings were held, discussions were had, emails were exchanged, but her husband was insistent that those original terms no longer worked for him. My client eventually realized that she had to accept where her husband was NOW and not try to convince him otherwise. Once she accepted this fact, we were able to create a new agreement that met both of their needs in a very creative way and allowed them to each feel secure about their futures. When my client decided to stop resisting the inevitable and to play the ball from the difficult spot where it landed, she found peace and happiness in her decision.

My client was eventually able to respond to what seemed to be an insurmountable problem with acceptance and openness and that made all the difference. Whether you are dealing with a divorce that seems to be messing up your life, or dealing with monkeys that are messing up your golf game, see if you can find a place within you that will allow you to accept rather than resist what is happening. You may be surprised at the options that open up for you.


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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

March 14, 2014

Questions to Ask Before Hiring Your Collaborative Divorce Attorney

Questions to Ask Before Hiring Your Collaborative Divorce Attorney By Andrea VaccaIn my last post, I explored the idea of "doing no harm" as a collaborative divorce attorney. Some of the comments I received focused on what it means to be a collaborative professional, while others lamented the prevalence of lawyers who call themselves "collaborative" when their actions are anything but.

If you are a client who wants to use the collaborative process and stay out of court, you want to know that your attorney is actually committed to that process and understands the different mindset that it requires on his or her part. To get the information that you need, these are the questions I would suggest you ask a collaborative attorney and the types of answers that you want to hear:

How concerned are you about whether my spouse gets what he or she wants out of this divorce?

This question gets to the heart of whether an attorney understands the difference between collaboration and cooperation. Collaboration is about making sure that the other person's goals are met, even if they aren't the same goals as yours. This is a lot harder than simply cooperating, which is about working together for mutual benefit toward common goals.

I've been doing this work for more than 20 years and I don't know many couples who share an abundance of common goals at the end of their marriage. Sure, couples will often be equally committed to keeping their kids out of their conflict and maintaining an amicable relationship with each other, but they rarely have common financial goals for their lives after their divorce. One may want to own a home, while the other is comfortable renting. One may feel confident in her career, while the other sees layoffs all around him. One may want to have access to cash, while the other feels comfortable investing in real estate.

Agreeing to work collaboratively at the beginning of the process requires each party to respect the other's concerns and goals, and understand that an agreement cannot be signed until each of their goals are met.

Do you believe that people who are truly in conflict can engage in negotiations without drawing lines in the sand and using threats and coercion to get what they want?

An attorney trained in collaborative law will answer "Yes" and will go on to explain the difference between a position and an interest.

Maintaining a position is insisting on a specific outcome. That's the "line in the sand."
Negotiating with interests in mind is being open to different outcomes that can meet that underlying interest.

Collaborative lawyers encourage their clients to articulate their interests rather than take positions. This opens up options and often clears a path to an outcome that can meet both parties' individual goals.

How comfortable are you using other professionals as part of our divorce team?

The answer that you want to hear is that these attorneys have had positive experiences working with different divorce professionals including:

  • Financial professionals who help to clarify each party's financial concerns and help structure an agreement that meets each party's financial goals;
  • Divorce coaches who help with communication and emotional issues that can hijack the negotiation process; and
  • Child Specialists who bring the voice of the child into the negotiations.
Attorneys with a collaborative mindset will be able to give you examples of how their other clients have reaped the benefits of having these specialized professionals on their team, and how their divorces generally ran more smoothly as a result.

Are you a member of any collaborative practice groups? What types of trainings have you had?

If you live in the New York metropolitan area and you are looking for a collaborative attorney, ask if he or she is a member of the New York Association of Collaborative Professionals. If you live elsewhere, it shouldn't take too much time to research the affiliation of collaborative professionals in your area. Membership in these types of groups can help you determine if someone is committed to working in the collaborative law process and receiving ongoing training.

Knowing that your attorney is committed to the collaborative mindset is essential to the success of the process. The above questions will enable you to weed out the committed collaborative attorneys from the less so and help you to trust that the process will move forward in the manner you envision.


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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

February 13, 2014

Free Event Mar 18 - Emotional Economics of Divorce

Free Event Mar 18 - Emotional Economics of Divorce Featuring Andrea VaccaAndrea Vacca will be amongst the panelists at an upcoming free event, Emotional Economics of Divorce

When? Tuesday, March 18, 2014 from 6:00 PM to 8:00 PM (EDT)

Where? Citrin Cooperman, 529 5th Ave, 4th Floor, New York, NY 10175

Click here to register.

Details:

Marriage may be about love, but divorce is all about the money.

Divorce experts share vital information on strategies and decisions that can significantly benefit you as you navigate the legal and financial challenges presented by your divorce. Receive tips on staying calm, being prepared and creating the best possible financial outcome for everyone.

Topics of discussion will include:


  • Understanding legal and financial considerations as you negotiate your divorce

  • Learn what a divorce financial analyst is and how one is integral to the legal process - before, during and after your divorce

  • Tools that will enable you to stay calm and clear as you negotiate difficult conversations with your soon-to-be-ex

  • The secret to overcoming fear and uncertainty regarding the outcome of your divorce

  • How you can use this challenging time to grow personally while going through your divorce with grace and dignity

  • Understanding the roles of a forensic accountant in a divorce matter and the legal issues that may affect economic aspects of your divorce

  • How to avoid unnecessary costs during the divorce process

  • Process options to keep your divorce less adversarial and avoid litigation


Speakers will be available for Q & A after the program and refreshments will be served.

Click here to register and to read more about the event.


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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

February 12, 2014

To Do No Harm

To Do No Harm By Andrea VaccaThe Hippocratic Oath, which reads in part: I will give no deadly medicine to any one if asked, nor suggest any such counsel, is often summarized by the phrase "Do no harm." This simple yet powerful credo is an excellent approach for solving problems in many situations, including divorce.

Contrary to the approach of traditional divorce litigation, which often serves as a poison pill, the approach of collaborative lawyers is to do no harm. When our divorcing clients come to us, they are scared, angry, and confused. Our job is not to instigate and play on those fears and anxieties. Our job is to help calm them down by helping them to find their voice and get their needs met in a way that will help them move forward with their lives. It is for this reason that I choose to collaborate, rather than litigate divorce and family law cases.

Not every attorney sees things this way. An example is a conversation I recently had with a woman just starting the divorce process. She told me that although she wanted her divorce to be as amicable as possible, the last attorney she had called immediately told her he would file motions with the court to "scare" her husband. He bragged of his experience using the courts to intimidate people, and he promised her that he would win her as much money as he could. He basically said, "We'll go after your husband with no holds barred."

On the other hand, sometimes it is the client who insists on going to court. For example, if betrayal is the reason for the breakup there may be a high level of emotion, which might compel a party to want his or her "day in court" to air the grievances. This knee-jerk reaction to betrayal and anger may be understandable on the surface, but people who expect to have emotional needs met in a courtroom are always disappointed.

I encourage my clients to try another way.

The collaborative law process is a less harmful alternative to litigated divorce. It starts with a contract signed by both the attorneys and the clients affirming that:


  • The attorneys and clients will not act in an adversarial way toward each other.

  • There will be no use of threats of any kind.

  • If there are children, their best interests will be the priority.

  • The clients are encouraged to work with other related professionals, such as mental health and financial professionals.

  • If an agreement cannot be reached in the collaborative process, the clients will retain other attorneys to litigate the case for them.


By following these basic tenets, we as collaborative attorneys are promising to do no harm and honoring the trust that our clients are placing in us.

But it is up to the clients to explore all of their options and choose the right lawyer for their needs. Clients need to understand that if they immediately choose to litigate and start their divorce within the court system, they will likely miss the opportunity to come to a peaceful, thoughtful and voluntary settlement. Working with a collaborative team helps spouses reach an agreement that meets as many of their their long- and short-term needs as possible - as opposed to the scorched earth and poisonous, winner-takes-all model of litigation.

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Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

January 6, 2014

Tips to Help Reduce Time and Costs When Negotiating Divorce Agreements

Tips to Help Reduce Time and Costs When Negotiating Divorce Agreements By Andrea VaccaIt is possible to make the divorce process more time- and cost-effective?

When potential clients consult with me in connection with their divorce, one of the first questions they ask is, "How much do you expect this to cost?" and one of the second questions is, "How long do you expect this to take?" Time and money are, understandably, major concerns of anyone entering the divorce process, so I know that these clients want to hear answers that reflect a best case scenario. I can never predict the exact end date or the costs involved, but I can tell these clients that the more of these tips they follow, the more likely their divorce process will run smoother and be more cost-efficient:

1. Make sure your spouse knows that you want to end the marriage. It's understood that asking a spouse for a divorce can be difficult, emotional and frightening, but try to find a way to broach the subject before you retain an attorney. Perhaps you can engage a therapist, marriage counselor or trusted friend to help you have this conversation. One of the least productive ways to start the conversation is to have an attorney send a letter to your spouse announcing your intention to divorce him or her. Remember, your spouse will have to first get over the emotional shock before any productive discussions can take place.

2. Resolve some of the less emotional topics on your own.
Before you meet with your lawyer, find a way to have a discussion with your spouse to determine what issues may be easier to resolve. Perhaps you can agree about how to divide certain assets. Or maybe you've already agreed on a parenting schedule. Any issues that you can agree on ahead of time, even if just in theory, will help you create a framework for the lawyers to work with and speed up the negotiation process.

3. Aim to be amicable. Finding solutions to unresolved issues will go a lot faster if you both intend to work fairly together to reach a compromise. Hire amicable-minded attorneys who are either collaboratively-trained or very settlement-oriented. These attorneys will encourage you to focus on your interests as opposed to your positions and they will help you stay out of court because they are used to settling their cases without relying on the involvement of judges.

4. Utilize other specialized professionals. If agreeing on financial aspects is the largest hurdle, hire a Certified Divorce Financial Analyst to help sort out the details. If emotional or communication issues are causing roadblocks, consider a divorce coach. Relying on your attorney for emotional support or for technical financial assistance can be unproductive and can lengthen the time before settlement is reached. You also get more for your money - these specialized professionals will charge much lower hourly rates than your lawyer.

5. Meet regularly. To prevent the process from stopping, starting, or even regressing, be as prepared and organized as possible and be willing to meet regularly so the settlement process can move forward in a linear fashion.

6. Cooperate, collaborate, compromise. Holding firm to your position and drawing a line in the sand will take more time and therefore cost more money. Be honest, ready to negotiate, and willing to give in on some issues.

The legal, financial and emotional complexities of your divorce will undoubtedly influence how long the issues take to resolve, but by following these tips you can be assured that the process will move forward as cost-effectively as possible.


Vacca - image - headshot - skt - apr 18 2013.jpg

Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

October 21, 2013

The Legal Implications For Same-Sex Couples Living in Non-Recognition States

Divorce in Non-Recognition States by Ellie AckermanThe New York Times recently published an editorial about Minneapolis mayor R.T. Rybak, who is recruiting same-sex couples living in states that don't recognize same-sex marriage to marry in his city. His admitted goal is to bring in millions of dollars to Minneapolis through the hospitality industry and in taxes. And, now that the Supreme Court has overturned the Defense of Marriage Act (DOMA), he is quick to point out that same-sex marriages performed in Minneapolis will be recognized under federal law, even in non-recognizing states.

While, as the Times wrote, Mayor Rybak's actions make for a "fun" story and a "refreshing" reflection on how far marriage equality has come, same-sex spouses who marry in a state that recognizes same-sex marriage and then move to a non-recognizing state should be aware of possible problems regarding a potential divorce. While progress has been made on the same-sex marriage front, the situation is more complicated for same-sex divorces because these marriages are not "portable." Couples who marry and divorce in a recognizing state should have no problem. However, couples who marry in a recognizing state and then move to a non-recognizing state may find themselves in a no-man's land of sorts: They cannot divorce in the state where they married, because most states (including New York) have a residency requirement that must be met before the state will adjudicate a divorce, and they cannot divorce in the state in which they reside because while the federal government has to recognize legally entered same-sex marriages, the states do not, and a couple cannot divorce in a state that will not recognize its marriage.

Some non-recognizing states may grant divorces, or may grant civil union dissolutions rather than divorces. The latter could cause problems in other states in which the same-sex couple would still be considered married; a civil union dissolution may not meet the requirements for divorce. However, there is still significant uncertainty about how same-sex divorces would be handled even in these states.

Additionally, even while the couple is married, problems arise in non-recognizing states. The couple would have to review any legal document in which they refer to each other as spouses (such as wills and powers of attorney) and change that language so that the state will enforce it.

While, as the Times wrote, same-sex couples can certainly go to one of the 13 states that has legalized same-sex marriage to get married, they - and all legally married same-sex couples - should consult a matrimonial attorney and a trusts and estates attorney before moving to a non-recognizing state. These attorneys will be able to advise same-sex couples of the potential hazards of living, divorcing, and even dying in a non-recognition state.

Ellie AckermanEllie Ackerman
570 Lexington Avenue
Suite 1600
New York, NY 10022
eackerman@vaccalaw.com

October 14, 2013

Changing Course (in your divorce)

Changing Course (in your divorce) by Andrea VaccaIf you're in the middle of a litigated divorce and are unhappy with the way things are going, you can change course.

You might have started the divorce process with the goal of ending the marriage quickly and feeling as financially secure as possible at the end. You might have hired the first attorney who came highly recommended from a friend or relative who has been through their own divorce. And all seemed fine in the beginning. Your attorney said she understood that you didn't want to make your divorce World War III. She understood that you wanted to remain friends for the sake of your children. But as soon as it became clear that you and your spouse saw things differently, and conflict arose, the battle was on. Your attorney told you the judge is likely to see it your way and may have even encouraged you to write down all the divisive and emotionally painful issues between you and your spouse that would help you score points in court. And of course, your spouse's attorney told him or her the same thing.

Now, 6 months or 1 year later, you see how combative and unproductive the legal proceedings actually are, you're feeling more anger toward your spouse than ever and you're wondering, "How did I get here? This isn't how I wanted my divorce to go."

It's not too late to change course. For parting spouses who find themselves in an unwanted battle, turning away from litigation and toward a less adversarial approach to their divorce is still possible.

Some recent experiences with couples who moved from traditional (and costly) litigation to mediation or collaborative law have provided me with insights that I would like to share with you, or anyone you might know who is going through a divorce:

  • If you don't like the way things are going, explore a different approach: If you feel that the original process you chose for your divorce was a mistake, make a change as soon as possible. The longer a divorce continues in court, the more positional each side becomes. Things are said in court that cannot be "unsaid." Emotional damage can be done in the process that could make it more difficult for you and your spouse to ever come to a resolution or to be cooperative when living your post-divorce lives.
  • Your divorce lawyer is unlikely to be supportive of you trying a different process: He may tell you that he does not believe your spouse is capable of being reasonable and you need the "protection" that a court can provide. What he may not tell you is that he doesn't want to lose you as a client. This may be especially true if you still have a robust sum in your checking account. All attorneys hate to lose a client, but this is especially true when the client can afford to pay legal fees. If your attorney attempts to dissuade you from trying mediation or collaborative divorce, certainly listen to what he is saying, but remember that you are the one going through the divorce - not your attorney. The choice of process needs to be up to you and your spouse.
  • It takes two reasonable people to move away from litigation and toward a non-adversarial process: You may need to be the brave one who initiates a conversation with your spouse to find out if he or she is also unhappy with the litigation process. If you haven't had a civil conversation with your spouse in months, this can feel pretty scary. In that case, you may need some outside advice about how to facilitate the conversation. There are excellent divorce coaches who can help you get clear about what isn't working for you in the current process, what your true goals are for this divorce and how to explain all of this to your spouse in a way that feels safe.
If you have questions about divorce mediation and collaborative law and how they can change the tone of your divorce into one characterized by cooperation, call me at 212-768-1115 or visit my website.


Vacca - image - headshot - skt - apr 18 2013.jpg

Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

September 26, 2013

The Repercussions for Divorcing Women Who Have Opted Out of the Workforce

The Repercussions for Divorcing Women Who Have Opted Out of the Workforce by Andrea VaccaLately, women are being encouraged to "Lean In", which is the title of Sheryl Sandberg's book that encourages women to take an active role in their career development. So I found it very interesting to read an article in the New York Times Magazine titled "The Opt-out Generation Wants Back In". It not only spoke to me because of how confusing all of these messages can be for women, but also because as an attorney and mediator who works with divorcing couples, I've seen the fall-out when women who opt-out of viable careers to devote themselves to their families end up divorced.

The story, written by Judith Warner, is part longitudinal study and part confessional, covering the lives of three women over ten years who decided to "opt out" of the working world to take care of their children. With husbands who brought home mid-six figure salaries, it seemed to them like the ideal opportunity to step off the career track and choose instead to be home with their children.

But for the women in the article, betting on "perfect" did not pay off. For example:


  • A weak economy took its toll on everyone;

  • The women who wanted to return to full time jobs found it nearly impossible to find well-paying work;

  • And for one of the women, her marriage eventually ended while her children were still quite young.


The story of the divorced women reminded me of many of my clients. The stress of juggling two careers and the needs of children starts to take its toll on the marriage, so one of the spouses (usually the woman) decides that quitting her job and staying home with the children will reduce the stress that everyone is under. And things may get better for a while, but eventually the problems of the marriage become more evident. Perhaps it's the financial stress of living on one income, perhaps the couple drifts further apart because they now have even less in common than they did before when both had active careers.

But when young children are involved, couples are understandably hesitant to just give up. They may be unhappy and unsatisfied, but they decide to stick it out. Until one of them just can't anymore. And when that decision is made, it is likely that the woman is going to have to go back to work. And so begins the long, slow journey back into the workforce. It can take many months or even years for a woman who has stepped off the track to resume earning even close to the salary she was earning when she opted out.

In a case where one spouse brings in most of the income, it is not uncommon for divorce litigators to advise the non-earner of the family to stay out of the workforce as long as possible. The intent is to win more spousal support or child support by showing an income imbalance. By contrast, in mediation and collaborative law a more realistic approach is used to discuss the short and long term financial needs of the family. This cooperative climate puts neither party on the defensive and results in more honest negotiations and better long term results.

For women who have traded the boardroom for the nursery but now believe their marriage may not last forever, my advice is to get back to work as soon as possible. The longer you're out of the workforce, the farther behind the curve you will fall when it comes to new technology or industry standards. Opting out of the workforce in order to care for children is an incredibly selfless act, but so is going back to work when one income just can't support two households.

If you have questions about divorce mediation, collaborative law and how they can turn the tone of your divorce into a cooperative one, call me at 212-768-1115 or visit my website.

Vacca - image - headshot - skt - apr 18 2013.jpg

Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com