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

August 6, 2013

The Team Approach To Divorce

An article entitled The Team Approach to Divorce was published in the July 2013 issue of New York Family Law Monthly, an ALM publication. In the article, I explain how the professional-team approach works in the collaborative process and how attorneys who primarily litigate can use aspects of this approach to help settle their family law cases.

Read an excerpt below and the whole article by clicking here.


The Team Approach To Divorce

Using Financial and Mental-Health Professionals When Settling Family Cases

By Andrea Vacca

The Team Approach to Divorce

Most family law attorneys, whether they litigate or collaborate, have a go-to list of aligned professionals upon whom they rely to assist them and their clients in more complicated cases. We regularly consult with or directly refer our clients to accountants, appraisers, therapists and other professionals to help them achieve the best possible outcomes, given their particular circumstances.

There is a difference, however, in how litigating attorneys and collaborative attorneys use the advice and guidance of these other professionals. Litigating attorneys commonly use them in later stages of the case and bring these professionals in as experts in support of their clients' economic or child-related claims. Collaborative attorneys begin working with financial and mental-health professionals from the inception of the case, with the goal of working together as a team and helping the clients move toward resolution.


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

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

July 31, 2013

How to Have the Nastiest Divorce Possible

Note to readers: I've been wanting to write about how to avoid "nasty" divorces without all the gloom and doom that usually accompanies such a topic. And then it struck me: Use equal parts facts, sarcasm and humor!

Vacca - pB - image - Nasty Divorce - SKT - July 30 2013.jpgIf you and your spouse have decided to end your marriage and you want to look back on the divorce process with as much anger and resentment as possible, then this recipe for a nasty divorce is for you!

Step One (1) - Hire a bulldog lawyer who will:

  • tell you she'll get you everything that you want...
  • tell you that you have a winning case...
  • tell you she settles most of her cases - but will file an action for divorce before ever trying to reach an agreement outside of court...

This will ensure that you pay thousands of dollars in motion fees asking the judge to make temporary decisions such as how the bills will be paid and when the children will be sleeping in your home. It will also ensure that you and your spouse are adversaries for the next couple of years and will need lawyers to do most of the communicating between the two of you.

Step Two (2) - Don't explore mediation or collaborative divorce: Consider this nightmare scenario: You and your spouse being guided by professionals who are committed to helping you communicate effectively to resolve serious issues. Why would you want that? What will you have to add to the conversation when your friends complain about how badly their divorces are going?

Step Three (3) - Fight for your principles: Principles are the best way to make sure you spend exorbitant amounts of money on expert and lawyers fees. Principles are also a great way to prevent long-term compromise that will make sense a few years down the road.

Step Four (4) - Listen to the Greek Chorus: The Greek Chorus is always there to help set you back, whether it's by trash talking your spouse or making you second guess all your choices - and the advice of the professionals who are trying to help you get through this process. By far the wisest members of the Greek Chorus are other people going through divorce. Generally, the nastier their divorce, the more advice they offer. They are obviously doing something right.

Step Five (5) - Insist on having your day in court: By having your day in court you're going to tell your story to the judge. You want that judge to hear everything that your spouse did wrong, and rightfully so. You will have years to hone your argument and gather more evidence, in addition to the opportunity to spend hundreds of thousands of dollars on legal and expert fess while you wait for that special day.

For those of you who want to ensure that you are fighting with your estranged spouse for years to come, I hope this post has been helpful.

For those of you who prefer to move on with your lives and feel that you and your spouse did the best you could to have a civil divorce, the good news is there are mediators and collaborative professionals out there who can help you achieve your goals, too!

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

July 2, 2013

Supreme Court Strikes Down DOMA

Vacca - DOMA.jpgOn June 26, 2013, the United States Supreme Court declared parts of the Defense of Marriage Act (DOMA) unconstitutional. The decision, a huge civil rights victory for the gay community, will require federal law to recognize same-sex marriages the same way they recognize heterosexual marriages. This will grant same-sex spouses (at least in states that recognize same-sex marriage, such as New York) countless benefits that had previously been denied them under the statute. Now, same sex couples will be able to file joint income tax returns, enjoy spousal and survival status under Social Security, inheritance and estate laws, and be entitled to COBRA and other health insurance benefits. Effects on immigration have been among the most dramatic and immediate, as American citizens can now apply for permanent resident visas, or green cards, for their foreign-born same-sex spouses. Couples began receiving notification of approval for green cards as early as June 28.

As matrimonial attorneys, we are excited about this decision, not only because of the impact it will have on the same-sex couples that are married or contemplating getting married in New York, but also because of the ways in which it will affect the practice of matrimonial law. Previously, any agreement between same-sex couples, whether prenuptial or separation, required drafting around the federal benefits to which married heterosexual couples are automatically entitled with no way to compensate for the omission. Granting same-sex spouses the same federal rights as their heterosexual counterparts allows not just for more equality but also more uniformity under the law.

We applaud the Supreme Court for recognizing this and look forward to further advancements in same-sex rights.

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

June 3, 2013

Mindfulness as a Tool for a Less Adversarial Divorce

Midnfulness image.jpgDivorce can be an overwhelming experience. For most of us the days are full enough, yet divorcing couples are confronted with finding the time to fit in things they would not normally need to do, like meeting with attorneys and working on post-divorce budgets.

I recently discovered an author named Jon Kabat-Zinn whose book Wherever You Go, There You Are: Mindfulness Meditation in Everyday Life can be useful to people going through a divorce - or any stressful event.

Mindfulness is being aware of where you are in the present moment and being present in the moment.

A direct route to the state of mindfulness is through the practice of meditation.

  • Meditation is the practice of quieting the mind.
  • It does not have to be religious in any way.
  • Meditation can be done in any physical position.
  • People can benefit from as little as 3 minutes of guided meditation.

Cool Minds Negotiate Better

Achieving mindfulness in a collaborative divorce or mediation setting can make the difference between an impasse and a constructive compromise. For instance, if you find your heart skipping a beat and your throat tightening while you are talking about a particular issue, these changes can be taken as indicators of anxiety which, for you, may mean you will say or do something out of anger - or perhaps it means you will withdraw to such an extent that nothing can be resolved. Both of these extreme reactions are understandable under stress, but neither of them are helpful when your goal is to come to a fair and equitable agreement.

Becoming More Focused

One of the benefits of quieting the mind is that options become clearer. The analogy of muddy water is often used - if left alone, the mud will eventually settle to the bottom and the water will become clear. In a divorce, you're being asked to make many decisions about many issues you never thought you would be thinking about. The choices and options can seem overwhelming.

  • Should you mediate or collaborate? Or is litigation the best option?
  • What parenting plan is best for your children? Should they reside with one parent primarily or with each parent equally?
  • Should you sell the home you've been living in or should one spouse buy the other out of his or her share?
  • What amount of spousal support is needed? How long will it be paid?

Mindfulness techniques will not help you solve every problem in your divorce. The point is that these techniques will make it easier to handle difficult and uncomfortable situations, help you see the choices more clearly, and facilitate faster recovery.

Not only will you feel less stressed as a result of easier negotiations, it will also save you time and money.

Other books by Jon Kabat-Zinn include:

  • Full Catastrophe Living: Using the Wisdom of the Body and Mind to Face Stress, Pain and Illness___________
  • Mindfulness Meditation for Everyday Life. Piatkus, 2001. ISBN 0-7499-1422-X.
  • Coming to Our Senses: Healing Ourselves and the World Through Mindfulness. Hyperion, 2006. ISBN 0-7868-8654-4.
  • The mindful way through depression: freeing yourself from chronic unhappiness, by J. Mark G. Williams, John D. Teasdale, Zindel V. Segal, Jon Kabat-Zinn. Guilford Press, 2007. ISBN 1593851286.
  • Arriving at Your Own Door. Piatkus Books, 2008. ISBN 0-7499-2861-1.
  • Letting Everything Become Your Teacher: 100 Lessons in Mindfulness. Dell Publishing Company, 2009. ISBN 0-385-34323-X.

Bibliography from Wikipedia

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

May 15, 2013

The Power of Positive Psychology in Divorce - 5 Concepts

Vacca - pB - concepts to positive divorce - SKT - May 10 2013.pngOne of the reasons I am passionate about collaborative law is because I am able to learn so much from it. Recently my desire to learn led me to discover a new way of looking at the world through the lens of Positive Psychology. Positive Psychology is the scientific study of well-being, happiness and what helps people to thrive as opposed to just survive. I decided to delve deeper into the subject and I emerged from my studies with a Certificate in Positive Psychology. For this post, I thought I'd share some of what I've learned along the way and how it is applicable to my clients who are divorcing.

1) The importance of feeling all emotions

Positive psychology is not about positive thinking, it's about realizing that experiencing difficult emotions is a necessary step to realizing the more positive emotions in life. In other words life can be difficult at times, especially when you are going through a divorce; but don't get down on yourself if you feel down. Give yourself permission to feel hurt, angry or fearful. Only then will you truly be able to feel the joy, gratitude and peacefulness that exist in other parts of your life and in your other relationships.

2) Strive for post-traumatic growth

Most people have heard about post-traumatic stress, but there is also such a thing as post-traumatic growth. Like Nietzsche said:

That which does not kill us makes us stronger.

He was absolutely right. One of the books that has had a great impact on me is called What Doesn't Kill Us: The New Psychology of Post-Traumatic Growth by Stephen Joseph. In it, he uses a great example involving a vase: When a marriage ends, people feel their life has been shattered, almost like a beautiful vase that fell to the floor and shattered into dozens of different pieces.

What do you do? Do you try to put that vase back together to make it look like it did before, knowing that it never will? Do you want that vase so badly that you don't care what it looks like? Or do you say, "I'm going to make a new piece of art from these beautiful pieces."

In other words, you will see that the beautiful pieces of your life that remain, such as your kids, your friends or your work, can be put together to create a fulfilling and happy life. The end of your marriage (although traumatic) does not have to ruin every other aspect of your life.

3) Look at your divorce as a peak experience

When I say "peak experience" I don't mean one of the most wonderful things that has ever happened to you, but an experience that takes you to a new place where you can see a new landscape. Any kind of trauma can be a peak experience.

For example, when a person has a near-death experience, life never looks the same - usually for the better. If you were to look back on your divorce, what strengths did you call upon that you didn't know you had or just hadn't used in years? More importantly, when you look forward, what places do you see yourself going from here?

4) Have a growth mindset

If you have a growth mindset during your divorce, you will regularly be asking yourself, "What will make me more empowered?"

Take it one step at a time. The first step is believing in yourself, and your ability to get through difficult situations and learn from them. You'll be able to better grow through those challenges, but you have to believe in yourself.

For instance, you might not have been a financially aware partner. Your spouse might have taken care of the finances, and it can be really overwhelming and scary to people to step into that role - but once you do it yields incredible freedom and you realize you're actually good at it. Or maybe you even like it.

5) Learn to be resilient

Are you viewing yourself as a survivor or a thriver? Do you want things to be better and be different? Achieving those goals often comes down to how you talk to yourself. If you say, "I want to be better on the other side of this; I want to learn and grow" then you're going to be better able to create that reality for yourself.

I hope this post has given you an idea of how the principles of positive psychology can help you or someone you know grow from their divorce. There are many resources available that can help you learn more about it. For more reading recommendations from me, email me at avacca@vaccalaw.com.

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

April 18, 2013

The Road Map to Collaborative Divorce

Vacca - pB - The Road Map to Collaborative Divorce - SKT - Apr 18 2013.jpgThe setting in which Family Law attorneys work is often not a courtroom, but a complicated landscape of their clients' needs and emotions. Because many of these emotions are difficult to experience, it is natural that a divorcing couple might want the process to conclude quickly. But moving forward too quickly without sufficient understanding of each party's true needs and goals risks the integrity of the final product. To ensure a settlement agreement has the durability to last and keep both sides satisfied in the long term, many collaborative professionals use a roadmap that helps to illustrate for their clients the stages of the collaborative law process. This roadmap helps to slow down the tendency to prematurely rush ahead toward solutions that may have little connection to actual interests and goals by helping the parties to see where they're going in the process and also how far they've come.

A TYPICAL COLLABORATIVE ROADMAP IS COMPOSED OF THE FOLLOWING STEPS:

  • Setting the Framework: This initial phase of the process involves explaining to both parties how the collaborative process works and describing each person's roles and responsibilities.The clients will discuss why they have chosen to work collaboratively and what their goals are for the process. We also "assemble the team," deciding which other professionals will be necessary to help see us through the various issues in the divorce. How can a child specialist or a divorce coach assist in this process? What issues may be more easily resolved by working with a neutral financial professional?

  • Gathering Information: Here we identify the potential conflicts that need to be resolved and gather the facts and information about those issues that will help settle them. Different members of the team in place may now be called on to assist. For example, if the divorcing couple has children, at this stage the coaches and child specialist will gather information about the emotional and personal relationships between the couple and their children. We'll want to know whether there are any special needs of the children or emotional issues that must be addressed. The financial professional will start gathering information about the parties' assets, debts and income and the attorneys and clients may have an open discussion about the law at this stage as well.

  • Developing a Shared Understanding: This is where we define the interests of the parties. We take a look behind the stated positions of each side to examine not what the parties claim to want, but why they need it. When one spouse insists he or she needs to "keep the house" we look to see what the reasoning behind the request is. Is the real issue that one of the parties needs to stay in this particular home because the carrying charges are low? Or is it because the grandparents live nearby and help out with the child care? The goal here is to get away from blanket positional statements and look at the underlying reasons for those positions.

  • Generating and Evaluating Options: By this stage, we are looking to find an actual solution that works for both parties by looking at the available options. Each party will consider and evaluate the options to see whether they satisfy each of their main interests. We can also test out possible solutions. For example, if we're dealing with an issue that is financially related, the financial professional will "run the numbers" and do a side-by-side comparison of the different options under consideration. We can pose the question, "what amount of cash will each party have left after taxes over the next 20 years if we divide the assets this way as opposed to that?" This approach allows each spouse to see what choices are preferable in the long term and make decisions based upon this information.

  • Reaching Agreement: When each party is satisfied that its concerns have been addressed and feels secure about the compromises made, it is time to actually draft and sign an agreement. As you can see, by the time we get to this last step, each party has had many opportunities to have his or her voice heard and interests addressed.

An agreement reached by following the collaborative roadmap means more than just the paper it is printed on - it is significant because it was the product of both parties making decisions with all necessary information before them, listening to each other and cooperating with one another. This not only makes the divorce process a lot less unpleasant than an adversarial action in court but can also provide the parties with a method to solve problems together in the future.

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

March 28, 2013

New York Times Room For Debate: Prenups

On March 21, 2013, the New York Times featured a debate between six professionals regarding the benefits and drawbacks to entering a prenuptial agreement in light of the voiding of the Petrakis Prenup. Click here for the full discussion.

March 14, 2013

New York Prenuptial Agreements May Be Thrown Out Based on Allegations of Verbal Promises

Historically, it has been notoriously difficult to get a prenuptial agreement thrown out in New York. This is because there is strong public policy in favor of allowing individuals the freedom to enter into their own contracts. Often, when prenuptial agreements are overturned by the court, it is due to a defect on the face of the document, not on the terms of the contract itself. It is for this reason that we highly advise our clients to completely understand what they are signing when entering into these agreements.

A Nassau County woman, Elizabeth Petrakis, has recently succeeded in convincing a unanimous panel of the Appellate Division, Second Department that her prenuptial agreement should be set aside on the basis of fraudulent inducement. (Read the opinion here.) She claimed that her husband purposefully lied to her so that she would sign an agreement that he knew she wouldn't have signed if he told her the truth. Ms. Petrakis claimed that just 4 days before their wedding, her husband convinced her to sign a prenuptial agreement that would provide him with all of the assets in the event of divorce by promising her that he would "tear it up" when they had children. Her husband, Peter Petrakis, claimed that he never made that promise. After a trial that lasted 13 days over the course of 9 months, the trial judge determined that he believed the wife's testimony over the husband's and he set aside the prenuptial agreement. The Appellate Division has now upheld that decision.

I agree with other attorneys who are concerned that this case could lead to dangerous precedent.

Our clients enter into prenuptial agreements because they want to secure their rights and obligations in the event of a divorce. If other courts follow this court's precedent and allow allegations of verbal promises to set these agreements aside, we can see many other prenuptial agreements being challenged in court.

This case is a reminder to our clients who want a prenuptial agreement to be signed that transparency is of the utmost importance and that they should give their fiancé plenty of time to review the agreement before the wedding date. For our clients who are being asked to sign a prenuptial agreement, this case is a reminder that these are serious contracts and that while they may be thrown out in rare circumstances, it can take years and hundreds of thousands of dollars in legal fees to have your case heard in court.

February 20, 2013

Preparing to Negotiate a Postnuptial Agreement

In previous blog posts we discussed the reasons why postnuptial agreements are becoming more popular and how to ensure that your postnuptial agreement is enforceable under New York law. If you've decided that a postnuptial agreement is something that you want to pursue, it is important to be adequately prepared for the negotiation process. These are some suggested steps that you should take before you begin:

• Write Down Your Own Goals And Concerns - It is easy to become overwhelmed by all of the questions you will have and to get distracted by all the issues that you may want to resolve. Likewise, it is easy to lose sight of the big picture and, due to the nature of the agreement, become overwhelmed by emotion. Taking time before negotiations begin to write down your long-term goals and concerns will help you maintain your focus on ensuring the best possible outcome for you and your spouse. It will also aid the negotiation process. By articulating a defined goal rather than becoming attached to a specific formula or percentage, both spouses are more likely to use creativity in finding a solution.

• Become Familiar With Your Assets And Liabilities - You cannot enter an agreement concerning your financial future without understanding your current financial circumstances. Familiarize yourself not just with your current property, debts, salary, and investments, but also what you and your spouse's potential earning capacity may be, any anticipated increase in asset values or liabilities, and any expected inheritance or trust payouts. You may find it helpful to consult with a financial advisor who has experience working with clients who are negotiating postnuptial agreements.

• Get Educated About The Law - Speak with an attorney who can educate you about the relevant laws related to spousal and child support, how assets are defined, valued and distributed, and what laws govern custody and parenting issues. Understanding your legal rights and obligations will give you a better idea of what a postnuptial can or cannot do for you and which issues may be easier to resolve than others.

• Get Educated About the Negotiating Processes Available - An attorney will also be able to help you decide what negotiating process will best serve you and your spouse. Do you and your spouse each feel comfortable advocating for your own needs and concerns? If so, mediation might be a good option. If one or both of you feels more comfortable having your attorney by your side during the negotiations, working in a collaborative manner might make the most sense. Or perhaps it would be too uncomfortable being in the same room as your spouse while you are negotiating such an agreement because emotions are running high. In that case, the best option for you may be to leave the communication to the lawyers. Speaking with an attorney who has negotiated postnuptial agreements via these different processes will help you determine what makes the most sense for you and your spouse.

• Hire Independent Legal Counsel - Even if you are proceeding by mediation, it is imperative that each spouse have his or her own attorney to consult with and review the agreement. An attorney can help clarify (and ensure compliance with) the laws of the state governing the postnuptial agreement, advise on the best way to divide the assets and liabilities at issue, and provide advice about how to negotiate for the outcome you desire. It becomes even more important to have your own lawyer if your spouse has one. This will help ensure equal bargaining power between the two of you. An even playing field is necessary not only to help both spouses feel confident during the negotiation process, but also in the event that the agreement winds up in court with one spouse claiming it was not entered into fairly.

These steps should assist you in coming to a fair and equitable agreement. Approached correctly, postnuptial agreements can be useful tools in preserving and strengthening a marriage and giving each party the peace of mind they need to feel secure about their futures.

January 17, 2013

Ensuring a Postnuptial Agreement is Enforceable in New York

In Part 1 of our series on postnuptial agreements, we discussed six reasons why postnuptial agreements are gaining popularity; in Part 2, we will identify the most important factors in ensuring your postnuptial agreement is legally enforceable in New York.

Postnuptial agreements are, first and foremost, contracts between married parties. However, they differ from standard contracts in one fundamental way: Unlike traditional business contracts, the parties entering into postnuptial agreements owe a higher duty toward each other - what the New York courts have called "a fiduciary relationship requiring the utmost of good faith" (Petracca v. Petracca). For the court to uphold a postnuptial agreement, there must be a heightened level of fairness to each party. Accordingly, in the event that you decide to draft a postnuptial agreement, or you are presented with one by your spouse, you should make sure the following features are present:

• Consideration - This legal term essentially just means that each party is giving something up (it can be tangible, like real estate or money, or intangible, like a legal right or the value of a graduate degree) in exchange for what that party is receiving. Courts will not uphold an agreement in which one party is required to give up all of his or her expectations in a potential divorce, but the other party makes no concessions.

• Fairness - This is a vague concept, but courts will not uphold an agreement that puts one spouse in a significantly more advantaged position than the other in the event of divorce. If an agreement promotes an unfair outcome, it will not be enforced. It is not necessary for the disparity to be fraudulent or even intentional - even unintentional unevenness may cause the courts to invalidate an agreement.

• At Least Two Attorneys - Each party should consult with an independent attorney of his or her own choosing. If, as a result of an agreement, one party winds up in a financial position that is substantially more secure than the other, and that party's attorney drafted the agreement, courts will find this suspicious and be less likely to enforce the agreement.

• Signatures and Acknowledgments - There are very specific rules regarding signatures on postnuptial agreements; the slightest error will invalidate the whole agreement. It is a good idea to consult an attorney and make sure the document is executed with the required formalities.

• Full Disclosure - Each party must inform the other of each and every asset he or she has or expects to have in the future (business interests, inheritances, etc.). The concealment of assets of one spouse from the other will invalidate a postnuptial agreement.

By consulting with an attorney in the event that you and your spouse decide to separate or divorce, you will be able to ensure that your postnuptial agreement will be enforceable.

January 7, 2013

6 Reasons Postnuptial Agreements Are Gaining Popularity

Requests for postnuptial agreements are on the rise in New York and across the country. According to a recent survey by the American Academy of Matrimonial Lawyers (AAML), more than half of its members have seen an increase in the number of clients requesting postnuptial agreements.

A postnuptial agreement is a contract entered into by married couples that provides terms that will govern in the event of death or divorce, including how to divide assets, the relinquishment of certain property rights that spouses would otherwise be entitled to and the terms of spousal support and child support.

Why Might A Couple Want A Postnuptial Agreement?

Postnuptial agreements are useful in a variety of circumstances and for a variety of couples, regardless of age or wealth. These reasons include:

1. Financial Concerns - A party may learn that his or her spouse has secretly incurred debt that threatens the family's financial stability. Or one spouse may learn that the other has been hiding a gambling addiction. These types of revelations can lead to issues of trust so serious that they can damage the marriage. For couples that wish to stay together despite these circumstances, a postnuptial agreement can lay out the terms of who will be responsible for paying the debt, both during the marriage and in the event that the marriage should end, and can provide terms that require the indebted spouse to indemnify the other spouse against any financial harm resulting from the debt or gambling. The non-indebted spouse thus has the benefit of knowing that he or she will remain financially secure or, at the very least, will not be worse off if he or she agrees to give the marriage more time to repair itself.

2. Unequal Assets - A spouse who has made significantly more money than the other spouse may want to secure a higher proportion of the parties' assets in the event of divorce. Similarly, a spouse who has stepped out of the workforce to raise children, may feel financially insecure due to a lack of retirement savings or reduced earning capacity. In either of these situations, a spouse may need an agreement that provides him or her with an unequal distribution of property in order to feel secure in the marriage.

3. Second (or Third) Marriages - Oftentimes, spouses who have been married before bring to a new marriage assets that they wish to preserve for children, grandchildren or even parents to whom they feel financially obligated. A postnuptial agreement can make clear which resources during the marriage can be used to help support a spouse's other family members and which are off limits. In the event of death, a postnuptial agreement can provide the surviving spouse with financial security by allowing him or her to remain living in the deceased spouse's home and/or using financial resources that may eventually be inherited by the deceased spouse's children or grandchildren.

4. New Inheritance - If one spouse inherits assets during the marriage, those assets will be seen as separate property if they are kept apart from marital funds and remain in the inheriting spouse's own name. But what if the inheriting spouse wishes to use those assets to help buy a new family home or make another investment that will benefit the family? A postnuptial agreement can be used to state exactly what will happen to the funds in the event of death or divorce, thereby helping the spouse who inherited the assets to feel secure and helping the other spouse and the family to benefit from use of the assets during the marriage.

5. Purchases of Property - Similar to deciding what to do with inherited funds, if a couple uses one party's funds earned prior to the marriage to purchase or renovate a home, there may be concerns about who gets credit for providing the funds used to purchase the home, whose name will be on the deed, and what may happen to the home should the marriage fail. If the marriage is already somewhat troubled, these concerns can be even more prominent. A postnuptial agreement can take this particular stress out of purchasing property by laying out terms for what will happen to the property and the assets that went into its purchase or renovation in the event that the marriage fails.

6. Never Signed a Prenuptial Agreement - Some couples plan to enter into a prenuptial agreement, but either run out of time in which to execute the document before the marriage, or back off of the concept because one or both of the parties is uneasy about it or feeling too much pressure. A postnuptial agreement can lay out whatever terms the parties would have included in a prenuptial agreement, and can be entered into at any point after the marriage, when emotions are not as high.

These are just some of the reasons why it might make sense for a couple to enter into a postnuptial agreement. Just as all marriages are different, so are the issues that arise that can be resolved with a prenuptial agreement.

In our upcoming blog posts, we will discuss what terms need to be in a postnuptial agreement to make it enforceable in New York and how to prepare yourself for the negotiation process and choose the right attorney for you.

November 21, 2012

Use of Technology to Reduce Conflicts in Co-Parenting

A recent article in The Huffington Post summarized a University of Missouri study that analyzed the way divorced parents use technology to facilitate (or hinder) their co-parenting arrangements. According to the study, parents with effective communication used technology to improve parent-parent communication as well as parent-child access, while parents with ineffective communication used technology to frustrate both their relationship with the other parent and the other parent's relationship with the children. Establishing positive communication practices between spouses not only maintains a level of civility between the parents; it also provides a more pleasant environment for the children. Whether a couple engaged in litigation, mediation, or collaborative methods in obtaining their divorce, limiting post-divorce conflict between parents is imperative to helping children adjust.

Below are some tips for using communication technology effectively as a tool to foster positive and successful co-parenting arrangements and limit conflict:

• E-mail: E-mail can be a useful way for divorced parents to communicate with each other. Risks inherent in telephone communication are largely absent in e-mail communication: telephone conversations can be impulsive and rash, and since they are generally not recorded, a parent may feel entitled to make any manner of accusation toward his or her ex. Parents can also use the telephone to avoid communication, by ignoring phone calls and voice messages. By contrast, e-mail affords a parent with the ability to express himself or herself, then edit the message to ensure that only a calm, rational tone is used. E-mail also provides a communication trail, which makes it more likely that a parent will limit his or her hostility.
• Text Messages: The idea behind using text messages to communicate is similar to that of e-mail. Text messaging is more immediate, but still allows each parent to edit their message for the appropriate tone, and creates a communication trail.
• Calendar Sharing: With Google calendars or iCloud, parents can share calendars with each other. This can ensure that each parent has access to the children's academic, extra-curricular, and social activities. Shared calendars can also provide a method by which parents can keep tabs on parenting and vacation schedules, including travel details and changes in the usual parenting plan. Creating a shared calendar thus minimizes the likelihood that a parent will miss an important event in the children's lives, while mitigating the interaction between parents regarding their own schedules and those of the children.
• Online Co-Parenting Software: In the event that parents prefer help with limiting conflict in multiple areas, including parenting schedules and child support payments, co-parenting software is an option. The software, which has gained popularity over the past year or so, provides calendars, expense logs, message boards, and child records (medical, academic, etc.). These features allow parents to keep track of schedules and expenses, and to communicate with one another directly. Examples of available software are Our Family Wizard and ShareKids.

As noted in a recent article in the New York Times, communication technology is becoming popular not only with divorced parents, but in the courtroom and amongst lawyers as well. According to the article, settlement agreements often include provisions for non-custodial parents to Skype with their children, and at least one judge has ordered a couple to use Our Family Wizard to avoid disagreements.

Each of the above-mentioned tools can build a successful co-parenting environment for parents and children. As the University of Missouri study concluded, parents who had good relationships effectively used these tools to maintain contact with their ex-spouses and to facilitate the children's transition between parents. As with all aspects of divorce, the children's best interests should be paramount and, to the extent that communication technologies can advance this goal, they should be widely considered.


October 3, 2012

How to Protect the Family in the Face of Divorce

I help couples end their marriages without destroying their families. That's not just a tagline on my website or part of my elevator speech; it's the actual reason that I no longer use adversarial methods to help my clients who are divorcing or separating. An article in the New York Times that focused on Al and Tipper Gore reminded me that all families - even celebrity families - benefit when the parents are able and willing to divorce with as little acrimony as possible.

By way of background, after more than 40 years of marriage, Al and Tipper Gore separated in 2010 when they grew apart and realized they wanted different things out of life. The article focused on where they and their 4 adult children are now in their lives post-divorce, and how the family support system has remained intact.

A friend of the Gores from Nashville, Christine Leverone Orrall, was quoted as saying that "Tipper and Al may live in different parts of the country, and may be very happy with their own lives these days, but the children always bring them together. I think they're showing how you can be happy and healthy apart while still focusing on their children and their life together as a family."

According to Tony Coehlo, chairman of Al Gore's 2000 campaign, "Al and Tipper were the happily married couple of American politics for 30 years. They packaged themselves that way for political consumption, and have unpackaged that image in the interest of their own happiness. They are still a family, but they have become the kind of family that they want to be."

Whether a couple is contemplating a late-life "gray divorce" and have adult children, like the Gores, or whether they've been married just a few years and have a toddler at home, the goal can be the same: it is possible to end the marriage while protecting the family.

Many couples stay together for the sake of the family while sacrificing their own individual happiness in the process. They may consider divorce, but after witnessing the struggles of friends and family members who divorce with a lot of animosity and anger, they want to protect themselves from that sort of pain. But divorce does not have to acrimonious. It is rarely - if ever - easy; and there is no question that it can be incredibly difficult financially, emotionally and spiritually. However, when both spouses are committed to respecting each other and keeping the animosity and anger in control, they can each move through the divorce and toward a new life that isn't weighed down by the difficult emotions that were played out in their divorce and/or exacerbated by attorneys who are trying to "win" their case.

One important lesson I have learned in my 20 years of practicing divorce law is that no one wins at the end of an adversarial litigated divorce. Neither spouse is happy, the children have frequently suffered, and an enormous amount of money has been spent fighting a war which simply cannot be won.

Regardless of their age, children want and need parents who are there for them emotionally as well as physically; but this may not be possible when their parents are suffering in an unhappy marriage. Couples who are committed to divorcing with respect and dignity are not only setting a good example for their children during the divorce process, but are better able to keep their family strong and healthy after it is over.

September 17, 2012

The Role of a Child's Wishes When a Parent Wants to Relocate

Clients often ask what role a child's wishes should (or do) play when one parent is considering moving them to a new location, away from the other parent. A New York Court has recently issued a thoughtful decision regarding this issue.

New York law tells us that when considering a custodial parent's request to relocate, several factors need to be examined to determine what is in the child's best interests. In addition to the child's wishes, other important factors to consider include the reason that the parent is seeking to move, how the move would impact the quality and quantity of the child's contact with the other parent, and the potential economic, educational and emotional enhancement of the child if the move were to take place.

In Byron v. Davis , the Court considered the request of a mother who had primary residential custody of her children, to move them from Rochester, NY to Washington, DC so that she could accept a position as an associate dean at a university. The job offered substantial career advancement and doubled the Mother's salary. The Father objected to the relocation on the basis that it would substantially interfere with his relationship with his 11 and 14 year-old sons. The Court found that both parents were loving and caring parents and both offered valid reasons for their positions regarding whether it was in the children's best interests to stay in Rochester or move to Washington DC. For the Court, the decision came down to the desires of the children.

In rendering its decision, The Court examined various factors to determine whether the relocation would be in the children's best interests:

• Physical and emotional state of the children

The court noted that the parents described their sons to be highly intelligent, well-rounded, and in excellent health. They played sports and were involved in other activities as well. There was no evidence of any impairment of their judgment.

• Parental influence

Both parents were deemed to be stable and neither of them attempted to improperly influence the children in their decision or promote their own agendas.

• Constancy of children's preference

The children "remained firm" in their desire to stay in Rochester. Additionally, they were aware of the standard of living they would have if they stayed with their father who earned a much smaller income than their mother's future income.

After examining all of the factors necessary to determine the children's best interests in this case, the Court decided that the children's valid reasons for wanting to stay in Rochester with their father trumped their mother's desire to move them to DC.