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.
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.
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.
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.
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.
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.
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.
It is no secret that litigated divorces are extremely draining, both on finances and emotions, which is why many couples turn to mediation as an alternative. Mediation increases the opportunity for divorcing or separating couples to reach an amicable agreement by working together rather than engaging in a nasty and protracted courtroom battle. Mediation is a voluntary process and the mediator acts as a facilitator to help the couple come to an agreement on all issues that need to be resolved. A mediator does not offer legal advice or make decisions for the couple. Therefore, it is imperative that each spouse understand the benefits of consulting with their own attorney both before and during the mediation process to gain a complete understanding of their legal rights and obligations and to discuss the various settlement options on the table.
1. Why do I need an attorney while I'm in mediation? Isn't it enough to just have the final agreement reviewed?
If you do not consult with an attorney before or at least during the mediation process, you cannot be certain that you understand all of your rights and obligations. You might think that something that you and your spouse have agreed upon is fair and reasonable without fully understanding the repercussions. If you consult with an attorney during the process, you will feel more empowered to deal with important issues that arise during mediation sessions. In addition, you will be better able to make decisions that will work for you in the long run. You don't want to be the client who agrees to waive your share of your spouse's pension, or who promises to pay what turns out to be an excessive amount of spousal support only to learn much later from the lawyer reviewing your agreement that doing so would be a grave financial mistake. You don't want to have to tell your estranged spouse that you have changed your mind when he or she thought you had a deal. This could destroy any trust and goodwill that was left between you.
2. Do all divorce lawyers understand mediation?
Since mediation is not the traditional way of approaching divorce, many attorneys have little experience with this non-adversarial approach. Some even disapprove of mediation, arguing that divorcing spouses should not negotiate on their own but only through their attorneys. These attitudes are slowly changing, as a heightened awareness of the benefits of mediation for divorcing couples is coming to the forefront. If you wish to mediate your divorce you should seek out consulting lawyers who are "mediation friendly" which means that the lawyer will advise you of your rights and provide you with counsel, while respecting your right to give more or take less than a judge may provide. A mediation friendly lawyer will understand that reaching an agreement that feels fair and equitable to you may be more important than getting every dollar to which you are entitled.
3.What questions should I ask to determine whether an attorney is "mediation
- are you trained as a mediator?
- have you acted as a consulting attorney for clients who have participated in
- are you comfortable advising me of my rights and allowing me to give more or
take less than I might get in court?
To locate a mediator and/or an attorney who can serve as a consulting attorney contact the Family and Divorce Mediation Counsel of Greater New York.
The summer months have traditionally been the most popular for weddings, which could be why calls to my office from couples seeking prenuptial agreements tend to increase each spring. Following is an "encore presentation" of an article regarding such agreements that was published on this site last July.
A prenuptial agreement is a written agreement that both members of a couple enter into before their marriage. This agreement spells out how assets are distributed in the event of divorce or death. Though they are commonly associated with wealthy couples, in reality, couples from any socio economic background can seek a prenuptial agreement. In order for the agreement to be valid, both parties must enter into it knowingly and voluntarily. If any coercion is involved, the agreement is invalid.
Many couples avoid prenuptial agreements because they don't want to believe that their marriage could end in divorce. Yet a "prenup" does not have to mean that you are hostile toward your future spouse. In fact, it can actually be a way to make sure you and your spouse are on the same page during the marriage and avoid hostility during a divorce. Here are some of the top reasons for getting a prenuptial agreement:
1. You don't want your spouse to own a piece of your business. In New York, if a business appreciates in value during the marriage, that appreciation can be considered a marital asset. That means without a prenuptial agreement, your spouse could receive a piece of your business, which could cause further tensions between the two of you and with your business partners.
2. You don't want your spouse to have an interest in your professional practice. Likewise, without a prenuptial agreement, the increased value of a professional practice that you started before the marriage can end up being partially distributed to your spouse.
3. You expect to be a stay-at-home parent. A spouse who chooses to stay home with the child is not building retirement assets in their own name and could be seen as not actively contributing to the acquisition of other marital assets. With a prenuptial agreement, the stay-at-home spouse can be guaranteed an equitable share of the assets and a certain level and duration of spousal support.
4. You are wealthier. While prenuptial agreements are not strictly for the wealthy, many wealthy people find them worthwhile to guarantee that their partner is not marrying them for their money.
5. You own assets that you want to protect from being used to pay off your spouse's debts. Many people own homes, businesses, and have savings prior to their marriages. In the event of a divorce, one spouse can file for bankruptcy, and without a prenuptial agreement in place, creditors might go after the other spouse's premarital assets to help pay off that debt.
6. You have children by a previous marriage whom you want to make sure receive a proper inheritance. Without a prenuptial agreement, property that was yours can end up partially in the hands of the other spouse, who could then pass it on to his or her children instead of yours.
7. You want to keep certain heirlooms in the family. Similarly, if you have valued possessions that you wish to pass down to your children, you can specify it in a prenuptial agreement.
8. You want to avoid an expensive divorce. One of the biggest benefits of a prenuptial agreement is that it prevents drawn out, expensive legal battles over custody and property. You save money that might otherwise have been spent on attorney fees.
9. You want to protect your children from a nasty divorce. Since a prenuptial agreement can prevent a court battle, it also prevents relations between the spouses from deteriorating even further. Spouses are able to maintain a civil tone, which is better for all involved, especially the children.
10. You want peace of mind. You know that if your marriage fails, you have a "back-up plan" that provides you and your spouse with more control, so that neither of you will suffer unnecessarily.
It is important to note that if circumstances change, it is never too late to amend an existing prenuptial agreement - even after the wedding - or to craft a postnuptial agreement.
"To be one, to be united is a great thing. But to respect the right to be different is maybe even greater." - Bono
In my last blog, I discussed the phenomenon of "gray divorce" and touched on some of the unique issues that older couples face when divorcing. In this post, I will share some thoughts on how effectively the mediation and collaborative law processes can meet the unique needs of these parties.
In my mediation and law practice, I have observed that unlike younger couples who are divorcing, older couples are frequently more civil toward each other and their interactions are less characterized by anger. As a mediator and collaborative lawyer, my role is to help the parties avoid court intervention and resolve their issues in a way that will keep the focus on their needs and goals, rather than their "positions." This works particularly well in cases of gray divorce. To rework a phrase popularized in the '60s, while older couples might choose to separate because they are no longer making love, it is often not because they are making war.
Mediation and Collaborative law are two cost and time effective ways to end a marriage while adding an element of grace and dignity to what could morph from a civilized discussion into volatile, emotionally and financially draining situation if not handled properly
Older couples appreciate the fact that time is extremely precious and they don't want to squander it on a lengthy and protracted court battle, nor do they wish to deplete their savings with retirement on the horizon. In addition, many find great benefit when they have the opportunity to work with mediators or collaborative lawyers trained to be creative problem solvers who can find solutions that would not necessarily be available to them if they allowed a judge to decide their fate. A particularly important issue for these couples is access to medical insurance. Additionally, as a result of the current economic climate, I have noticed that more frequently, older couples are providing some sort of support for their adult children and/or grandchildren.
I recently worked with a couple in their early 60's who, after spending the better part of a year in court with traditional divorce attorneys, came to the realization that they weren't getting any closer to a resolution. They eventually talked to each other without their lawyers and realized that they agreed on more issues than they disagreed; they then asked me as a mediator to help them to bridge their small gaps rather than continue with the long, protracted and expensive legal battle that they saw eroding the respect and care that they still had for each other after their long marriage. We reached an agreement after just two mediation sessions and in the end this couple decided that it did not actually serve their interests to divorce at this time. For them, the most viable and practical solution was to divide their assets but to stay married for another five years so that the Wife could keep the self-employed Husband on her insurance plan and then retire at a time that would maximize the amount of her pension. This solution would have been impossible in a court of law, as a judge would not be empowered to order a distribution of their assets without also ending their marriage (which would thereby end the husband's right to remain covered as a spouse under his wife's medical insurance policy).
The team approach of a collaborative divorce has also been extremely effective for my gray divorce clients where we can use a neutral divorce coach to help the couple bridge communication gaps in a non-adversarial way and we can use a neutral financial professional to help them figure out how they can utilize their assets and live on their fixed incomes in way that will allow them to both feel financially secure post-divorce.
Many later-in-life divorcing couples express to me how important it is to them to end their marriage in a way that preserves the "good times" of their long-term relationship and accomplishes the dissolution in a way that is cost effective. They might still love each other but simply want to live apart simply because they have grown apart. However, they recognize that they still have a family unit that needs to be maintained and still want to be able to share family moments as their children get married and have children of their own.
In a recent Daily Beast post about divorced couples who celebrate this next stage of their lives by jointly throwing "divorce parties," Andrew Cherlin, a professor at Johns Hopkins and author of The Marriage-Go-Round" explained that because divorce rates have been high for several decades, couples may be learning how to do divorce a little better and in a way that minimizes the pain. His theory is that happy divorces are on the rise because unlike in the past when "divorce was so stigmatized that only the most miserable left their marriages, now the 'moderately unhappy' are getting out too, which might make for some less acrimonious splits."
Divorce parties may not be every couple's goal, but neither is the desire to hate and despise each other once the divorce is over. The collaborative law and mediation processes can help these less adversarial couples preserve what was good and move into their post-divorce lives with respect for each other and dignity for themselves.
Is 60 the new 40?
If we follow the guideposts reflected in pop culture, the answer is a resounding "yes." The new face of MAC Cosmetics is a 90-year-old woman. Christopher Plummer won this year's best supporting actor Academy Award for his role in Beginners, in which he portrayed a a 70-year-old man who reveals that he is gay following the death of his wife. Online dating services such as Gray Date and Our Time are emerging for singles 50 and up. This could be because the phenomenon of couples divorcing after the age of 50 has grown exponentially in the past two decades.
In my own mediation and law practice, I am seeing a definite trend towards what is known as "Gray" Divorce. While the overall divorce rate has gotten lower, according to Gray Divorce and Remarriage, "Boomers, born between 1946 and 1964 already have a divorce rate triple that of their parents."
Late-life divorces can occur for many of the same reasons that they occur in younger couples including economic issues, lack of intimacy and substance abuse. Interestingly, however, a recent Wall Street Journal article entitled The Gray Divorces explains that infidelity is not a major factor in late-life divorce and that seems to be the case among my clients as well.
A key factor in the rise in these divorces is the increased financial independence of women. A recent study by American Association of Retired Persons (AARP) reported that 66 percent of the divorces studied were initiated by the wife. One reason for this is that women over 50 are more likely to have their own careers and be more financially independent from their husbands than were women of previous generations. I hear many clients explain that they were unhappy for many years, but they stayed together until they knew their children were well settled in their own lives. These clients have often lost an emotional connection to their spouse but are not necessarily angry; they are simply seeking a more fulfilling quality of life as they look at the next 20 or 30 years ahead.
Untangling the tapestry of any marriage brings about legal, financial and emotional challenges, but the issues faced in late-life divorces can be even more challenging. In the coming weeks, I will discuss the unique issues that older couples face when divorcing and how well mediation and the collaborative divorce process meet the needs of these parties.
Additionally, on March 29 from 5:30-7:30 p.m., I will be conducting a workshop Navigating Your Divorce With Dignity in conjunction with Certified Financial Planner and Divorce Financial Analyst Ivy Menchel and and Certified Divorce Coach Karen McMahon. There is no charge, but seating is limited. Please contact me for details.
The issue of temporary maintenance for a spouse pending the conclusion of a divorce is often a challenging and divisive aspect of the divorce or separation process, and clarity in how awards should be granted is a key aspect of promoting equity. Kudos to the First Department for providing clarity to the new temporary maintenance guidelines that were signed into law in 2010. In what is the first Appellate Division case to date interpreting this legislation, in Khaira v. Khaira, the Appellate Division First Department ruled that it was an error of a motion court to duplicate an award of temporary maintenance by directing the husband to pay in accordance with the formula set forth in the guidelines and then adding an obligation that he pay the wife's housing expenses as well.
By way of background, the legislature's approach to temporary maintenance awards experienced a seismic change in 2010 when Domestic Relations Law § 236(B)(5-a) was signed into law, bringing with it a formula that must be used to determine the amount of support. Before it was passed, judges had much more leeway in ordering temporary maintenance. The statute, which is designed to create greater consistency, requires the court to explain any deviation that it makes from the result which is calculated using a specific formula. Rather than aiming merely to "tide over" the non-monied spouse, the new provision creates a substantial presumptive entitlement based upon a formula using a percentage of each spouse's income.
Initially, many divorce lawyers were not happy about the new law, as they considered it to be both rigid and potentially inequitable.
In the Khaira opinion, Hon. David B. Saxe, an Associate Judge at the Appellate Division, First Department wrote:
"No language in either the new temporary maintenance provision or the [Child Support Standards Act] specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the non-monied spouse and the children. As one commentator has pointed out, the new law 'does not factor in child support issues or payment of household expenses. Is the recipient supposed to pay for everything in the house from this money? Is the payor supposed to stop paying those bills? What about all the double counting of housing, child care, and medical insurance between this law and the child support law?" (Referring to an article by Lee Rosenberg, in the February 25, 2011 issue of the New York Law Journal entitled "Multiple Flaws Abound in New Interim Spousal Support Statute").
Judge Saxe went on to say that "....in the absence of a specific reference to the carrying charges for the marital residence, we consider it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse's basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses."
I was thrilled to read Hon. David B. Saxe's recent article in the New York Law Journal entitled "Encourage Divorce Clients to Mediate."
Justice Saxe, who is an associate justice at the Appellate Division, First Department, focused on the fact that clients who choose mediation over litigation have more control over their divorce process and the terms of their agreement and this correlates to being more satisfied with the results of their divorce. As he states in his article: "If matrimonial lawyers focus on the larger picture, they might recognize they stand to gain more in the long run from the good will and recommendations of satisfied clients following successful mediation, than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce." Exactly.
Many studies have shown that clients who mediate are much less likely to be dissatisfied with their attorneys. This is because mediation, as well as collaborative law, focuses on the client's needs as opposed to their positions. The client who can look back and see that his or her lawyer was truly committed to finding solutions is going to be much more satisfied than the one who spent long hours waiting in court, was forced to endure adversarial and contentious arguments and suffered through the months or even years of litigation while having little control over the process.
There are certainly clients who "want their day in court." They are driven to prove the other spouse is wrong and they want to be heard. However, as Justice Saxe points out, due to increased case loads, even these clients won't be satisfied in court because trial judges are increasingly focused on encouraging compromise rather than trials.
When clients come to my office, I inform them of all the options that are available to them to resolve their marital and family issues, which include mediation, collaborative law and litigation. I encourage other attorneys to do the same. An attorney who can and will speak knowledgeably about these different dispute resolution models will be able to guide their client to the process that works best for them and their family. Using the court system to resolve family disputes should not be the first, knee-jerk response when a divorcing client enters your office. It should be the last.