New York Divorce Lawyer Blog

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."

This clarification from the Appellate Division was sorely needed as it helps to limit the issues that divorcing couples need to resolve whether they are mediating, collaborating or litigating.

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.

Many couples contemplating divorce would like to try and reach an amicable agreement rather than engage in a nasty and protracted battle in a courtroom and they wonder if mediation might be a good choice for them. This blog has previously discussed mediation and collaborative divorce as alternatives to litigation. If you are interested in divorce mediation, here are 8 helpful questions to ask:

1. What is the mediation process like?
Both spouses sit down with a trained family mediator who will help them reach agreements on all of the issues that need to be resolved. They speak with each other directly throughout the process and exchange all necessary documents. Both spouses will have specific interests that need to be met. The goal of the mediator is to help each of them find solutions that meet those interests. Both sides need to be prepared to work together in a civil manner.

2. When does the mediation start and how long does it last?
The mediation starts as soon as both spouses are ready to start, and it can last until all issues are resolved. Parties don't need to wait for a court-assigned date the way they would if their case were being litigated and they can meet with the mediator as often or as infrequently as their schedules allow. While some New York courts have implementedmandatory mediation programs, most mediation is strictly voluntary.

3. Will I need my own attorney?
It is strongly suggested that each spouse consult with individual attorneys before and during the mediation process so that they fully understand their rights and obligations and can discuss with the attorney the different settlement options that are being proposed. It is also important that each spouse's attorney review the settlement agreement before it is signed.

4. What issues can be resolved during mediation?
Mediation can be used to resolve any issue involved in a divorce, including child support, spousal support, child custody and the division of property. A divorce mediator can help the parties to find creative solutions that could be impossible to achieve in court.

5. What type of training does the mediator have?
While there are no state requirements for New York mediators, family mediators who are also divorce attorneys, usually have several years of family law experience. Mediators are not required to have a legal education, but a mediator who is also an attorney has the advantage of being very familiar with the law and understanding the rights of both parties. He or she is also able to draft a legally binding settlement agreement that contains all of the terms that the parties have agreed to.

6. What if my spouse knows much more about the finances than I do?
The key to a successful mediation is that both spouses are on equal ground. If you feel insecure about financial issues, you may want to consult with a Certified Divorce Financial Analyst who can educate you on your current financial situation and help you understand what you need for your future. CDFA's will use their knowledge of tax law, asset distribution, and short- and long-term financial planning to help you achieve an equitable settlement.

7. What are my other options if we can't reach an agreement through mediation?
While you always have the option of asking a court to resolve these issues for you, you may want to consider the collaborative divorce process before going the litigation route. In a collaborative divorce, you will always have an attorney with you during the negotiations who can advocate for your rights and interests and articulate your goals.

8. Could anything said during the mediation be used against me in court?
If you sign a confidentiality agreement with your spouse and mediator, the answer is probably no. That agreement needs to specify that all statements are considered privileged communications and cannot be used in court.

Continue reading "8 Questions to Ask When Considering Divorce Mediation" »

New York is now the seventh (and largest) jurisdiction to recognize same-sex marriage. This is an important and wonderful right for many couples and their families, which was evident in the media as we saw the first of these smiling and ecstatic couples marrying on July 24, 2011 and the days that followed.

While it may not seem romantic to think about these happy couples facing divorce and separation after they have waited so long for the right to marry, same-sex couples need to be extra vigilant to protect themselves and their families in the event that they decide to end their marriage. Some of the issues about which they need to be concerned include:

Lack of Federal Rights
The Defense of Marriage Act (DOMA), defines marriage as a legal union between persons of the opposite sex and permits states to refuse to legally acknowledge same-sex marriages performed in other states. The result is that a multitude of federal rights and obligations given to heterosexual spouses are unavailable to same-sex spouses. The Obama administration has refused to defend DOMA, claiming it is unconstitutional, but its existence makes divorces for same-sex couples even more complicated. For example, same-sex couples are not entitled to tax-free distribution of their spouse's pension and retirement funds, they cannot deduct spousal support payments from their income, they do not have the option of collecting social security based upon their spouse's income if they've been married for at least 10 years, and they are not entitled to COBRA benefits which would allow them keep their medical insurance offered through their spouse's employer for 36 months following divorce. Same-sex couples who divorce must consider this lack of federal rights when dividing their property and determining issues of spousal support.

Jurisdiction Issues
If a same-sex couple marries in New York, moves to one of the 44 states that do not recognize same-sex marriage, and then decides to divorce after being away from New York for one year, they will neither be able to divorce in that new state nor in New York. This is because the new state does not recognize their marriage and New York no longer has jurisdiction over it. It is therefore imperative that same-sex spouses think very carefully before moving to a state that does not recognize their marriage and that they draft a postnuptial agreement to define and protect their rights and obligations.

Child-Related Issues
In New York, there is a presumption that a child born during a marriage is the child of both spouses. The complication for same-sex divorcing couples in determining custody and child support arises when the non-biological parent has not adopted the child and they are living in a state that does not recognize their marriage. To protect both parents' rights and avoid the complications that may arise if the parents move away from New York, it is imperative that the non-biological parent adopt the child as soon as it is born.

The Importance of Prenuptial and Postnuptial Agreements
While prenuptial and postnuptial agreements cannot change the fact that a state may not have jurisdiction over the marriage of same-sex partners, it can make it clear that New York law will govern the issues of a marital dissolution. Additionally, these agreements offer many other protections that same-sex spouses and their children need in the event of divorce. For example, prenuptial and postnuptial agreements can outline:
- How child custody and child support will be handled (as long as children are already born at the time the agreement is written).
- How to handle the division of property between spouses given the fact that while these transfers are not taxed by states recognizing same-sex marriage, they are still taxed by the IRS.
- How to handle spousal support, which is also given preferential tax treatment by New York, but not by the IRS.

Same-sex couples need to make sure they have all the legal and tax information they need before they marry. By having honest conversations with their future spouses (and themselves) and speaking with lawyers and accountants who can advise them on divorce, trusts and estates and tax issues, they will be able to deal with many issues that if left unaddressed, could have long lasting negative repercussions for them and their children.

Jeffrey Landers has an informative blog post on Forbes.com about divorce-proofing your business in the event of divorce. Landers covers the basics of the importance of prenuptial agreements, postnuptial agreements and placing the business in a trust. And it smartly points out that these are options to consider not only if contemplating divorce in the future but also if you're happily married or even single.

A Husband's claim that New York's "no-fault" divorce statute violates his constitutional rights has been rejected in the March 28, 2011 decision of A.C. v. D.R. The statute, DRL §170(7), permits a party to obtain a divorce by swearing under oath that the marital relationship has been irretrievably broken for a period of at least six months. There would seem to be no defenses to such allegations. Yet, the Husband in the Nassau County matter claimed that because he wanted to stay married, the statute violated his constitutional rights to due process.

Justice Anthony J. Falanga rejected this claim and held that "staying married, against the wishes of the other adult who states under oath that the marriage is irretrievably broken, is not a vested right." The Court further held that a party's "self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken."

This case will undoubtedly bring large sighs of relief to other parties facing challenges to their right to a no-fault divorce.

When collaborative divorce was first developed, it was a process that involved two attorneys and their clients. The attorneys not only counseled and advised their clients about the law, but also about the financial and child-related issues that needed to be resolved. And they did their best to help with the emotional and communication issues that inevitably arose during the divorce process.

Collaborative attorneys eventually realized that while they were the best source of legal information and advice for their clients, this wasn't necessarily the case when it came to financial issues, child development issues and communication issues. Instead, collaborative attorneys realized it made more sense to refer their clients to other professionals who had specialized training in these areas. And that's when the team approach to collaborative divorce began.

Today the New York Association of Collaborative Professionals and other practice groups train financial professionals, divorce coaches and child specialists alongside lawyers in collaborative practice. As a result, the team approach to collaborative divorce has become more commonplace.

How do these other professionals help the clients in a collaborative divorce?

The financial professionals help the attorneys and clients divide the marital property in a way that makes the most sense to meet the short and long-term needs of the parties and their children. They provide tax information and they can help the parties explore different property distribution and support options.

The mental health professionals can play one of three roles. They either act as a divorce coach for an individual client, they act as the neutral divorce coach for the entire team, or they act as a child specialist. Divorce coaches help the clients deal with feelings such as hurt, anger, sadness and fear that will often come up during the divorce process and that can interfere with a client's ability to make smart choices in the negotiation process. Divorce coaches can also help the clients learn how to communicate better with their spouse, their children and even their lawyers during the process. Child specialists bring the voice of the children to the collaborative process and they educate the parents about child development issues that may need to be considered and addressed. The child specialists will then help the parties arrive at a parenting arrangement and decision-making process that works best for themselves and their children.

Is the team approach more expensive than a lawyers-only approach to collaborative divorce?

Finances and cash flow are serious concerns in any divorce and the need to retain other professionals at the outset of the collaborative process can feel daunting. But when clients take their attorney's advice to bring other professionals onto the team, they will save money in the long run. Not only do the financial professionals, divorce coaches and child specialists all charge less per hour than the lawyers, but when clients receive specialized information and advice from these professionals, they are often able to come to an agreement in less time than in cases where the lawyers are being called upon to play multiple roles.

A mandatory mediation program has been implemented in Supreme Court Nassau County for all couples who seek to have their divorces heard by a judge. How successful will this program be in helping couples settle their cases without additional court involvement? After reading the New York Times City Room Blog it appears there is some skepticism among attorneys. As a divorce mediator, I'm obviously encouraged whenever our court system embraces alternatives to litigation, such as the Office of Court Administration's Collaborative Family Law Center. However, I don't know what kind of impact a single 1½ hour session with a mediator can have on parties who have already made the decision to bring their matters to court and have already retained attorneys to litigate on their behalf. By the time the Judge directs them to mediation, both the parties and their attorneys may be too invested in having "their day in court" to appreciate the powerful results that successful mediation can provide. It is hoped, therefore, that the mediators who are meeting with these parties will use their allotted time to help them comprehend that they have a much better chance of having their most important needs met if they and their spouse can find a way to hear and understand each other. Because if that point isn't understood by the time the parties leave the mediator's office, they will walk right back to their litigation attorneys and pick up where they left off in the courtroom.

NPR reported this week that the divorce rate is on the rebound due to the fact that the economy is improving. Some of the reasons cited for this change are the fact that credit is getting somewhat easier to obtain, investment and retirement accounts are benefiting from the rise in the stock market and housing prices are no longer in free fall. I see all of these factors playing a role in my clients' decisions to divorce. But another reason for the increase in cases is that many people have been waiting 2 or 3 years now for their financial situation to improve and they realize they cannot wait any longer. Regardless of whether the economic circumstances are ideal, they have decided to end their marriages. But these clients are not jumping into divorce blindly regardless of the financial consequences. They are ready to face the economic realities head on and figure out a way to allow them to separate from their spouse.

It is for this reason that I strongly recommend that my clients and their spouses hire a financial professional who is certified in divorce financial planning and/or who is certified in collaborative divorce. These professionals can work with one party or with the couple together to help them determine what asset and debt allocation makes the most sense and what support may need to be paid to assure that both parties are living as well as possible post-divorce. If clients to take the time to examine these issues in the divorce process, they have a better chance of achieving their ultimate goals of having more financial security and less emotional stress after the marriage is over.

A Michigan man, Leon Walker, was recently charged with invasion of privacy after reading his wife's email on a computer they shared. He confirmed his suspicion that she was having an affair, but now he is facing the possibility of serving up to 5 years in prison. Walker, in his defense, has stated that he and his wife shared the computer and that she left her email passwords in notebooks around the house. We'll have to wait and see what the Michigan jury decides about this case, but what is a spouse's expectation of online privacy in New York?

This issue was previously discussed in the 2009 case of Gurevich v. Gurevich where a husband wanted to prevent his wife from presenting evidence in their divorce case that she obtained from reading his email. The wife claimed that the husband had provided her with his password during the marriage and that he neither revoked her use of it, nor changed his password after they separated. The wife suspected the husband was hiding income and her suspicions were apparently confirmed when she read his emails. The Kings County Supreme Court found that the emails were admissible evidence because they did not violate New York Penal Law section 250.00, which prohibits individuals from intercepting communications going from one person to another. Because the emails in question were stored in the email account, and were not "in transit," the Court found there was no violation of the statute prohibiting "interception." The Court also noted that there is no New York statute that provides for an implied revocation of passwords upon the commencement of a divorce action.

A simple lesson can be learned from both of these cases: You need to take responsibility for protecting your own privacy. If you don't want to share information contained in your email, facebook and text messages, you either need to keep your passwords private in the first place, or if you think your spouse (or ex-spouse) has reason to know what those passwords are, you need to remember to change them.

New York's new no fault divorce law - which allows a couple to divorce if one party claims there has been an irretrievable breakdown in the marriage - went into effect on October 12, 2010. Will this increase the number of people filing for divorce? Crains New York Business recently asked me that question, along with other divorce experts, and we all stated in one way or another that we expected that it will. Many unhappy spouses have been waiting for this law to become a reality and New York's divorce attorneys can expect an influx of new cases in their offices over the next 6 months to a year.

There are 2 types of clients that will be seeking a divorce. The first is the client who may have had grounds under the old law, but had no desire to recount every nasty thing that their spouse said or did to them over the past 5 years. As I stated in Crains, "This is definitely good news. Having a trial on grounds is one of the worst things anyone can do. Clients don't want it, lawyers don't want it. It will destroy the family, and it will destroy any goodwill there was."

The second type of client is the one who has tried couples therapy, who has tried "working on the marriage," and who has tried to make the best of a bad situation. But regardless of what they did, there was no denying the love was gone. Their home life was not dangerous to their physical wellbeing, but it was crushing them emotionally and spiritually. As attorneys, we are now able to help both of these types of clients to move forward with their lives at a significantly lower financial and emotional cost than it would have cost in the past. This is good news for everyone involved.

The New York Times recently reported that marriage rates are down in the U.S, and for the first time the number of young adults who have never married are exceeding the number who have. Instead of marrying, more and more couples are choosing to live together. Many of them are choosing to have children as well. Sociologist Andrew Cherlin of Johns Hopkins explained that the decline in marriage among adults ages 25 to 34 is related not only to the recession, but also to more acceptance in society of couples who aren't married, even when they choose to have children together.

This trend is expected to continue, but because New York State does not automatically provide biological parents with all the rights of married parents, cohabitating parents need to be proactive in establishing their legal rights. For example, in New York, biological fathers need to sign an acknowledgment of paternity pursuant to Family Court Act §516-a at the time of the child's birth in order to be granted custodial rights in the future and to provide the child with rights to the father's estate in the event of his death. It is not enough to have the father's name on the birth certificate. This acknowledgment can protect both parents from expensive and time-consuming court proceedings later if the couple separates. Absent the acknowledgment, the parties could find themselves in Family Court with the father trying to prove he is the biological parent and entitled to custody and parenting rights, and/or the mother trying to prove she is entitled to child support. Additionally, if the biological father dies before paternity is established, the mother may end up in Surrogate's Court trying to prove that the child is the father's legal heir.

But even with a signed acknowledgment of paternity, if a biological mother unilaterally moves with the child away from the biological father he will need to seek a court order to have the child returned. It would be unlikely that the police would get involved if his custodial rights were not yet established by agreement or through the Family Court. To prevent this type of nightmare, it's suggested that when the couple is happy and are able to negotiate on good terms, they retain family law attorneys to draft a legally binding agreement stating their rights regarding the children, child or spousal support (if they marry in the future) and economic issues between them such as the division of property and joint debts. They should also speak with a trusts and estates attorney to establish their rights in the event of death. Unmarried couples can easily establish their rights through the execution of these necessary documents. They just need to be proactive when times are good so that they can protect themselves if the relationship ends.

I've been thinking about the meaning of courage ever since Sunday, September 26th, when I ran in the Tunnel to Towers Run, which is a charity run in honor of FDNY Firefighter Stephen Siller. On the morning of September 11, 2001, Stephen had just ended his shift in Brooklyn when he heard that the Towers had been hit. He turned his car around and tried to drive through the Brooklyn Battery Tunnel but his car was stopped from entering. He grabbed his gear (which weighed approximately 80 pounds) and ran approximately 3 miles through the tunnel toward the Towers. Stephen and his entire fire company perished that day. The Tunnel to Towers Run retraces Stephen's steps, beginning at the mouth of the Tunnel in Brooklyn and ending at the site of Ground Zero where the Towers and the 9/11 Memorial are now rising.

Stephen Siller showed enormous courage on 9/11, but what are acts of courage in everyday life? To me, courage means acting even in the face of fear. It's moving forward with intention, even when we know that we could suffer physical or emotional harm in the process. Courage can be seen in acts great and small. It could mean running into a burning building. But it could also mean ending a marriage that you know needs to end if you are ever going to be happy in the future. You make the decision in spite of the fear of the emotional upheaval and pain that you, your spouse and your entire family will feel in the process. I know only a handful of people who would run into a burning building, but I work with clients everyday who act in the face of fear of ending their marriages. They are afraid, shaken, and unsure of what the road ahead will look like. My job is to honor and respect their courageousness and make their path as easy to navigate as possible. Hopefully, as they move forward they will begin to see their new lives rising in the distance; and that vision will give them the strength to continue moving toward the goal that drove them to face their fear and take that courageous step in the first place.

Most of the clients who come to my office to discuss their divorce know that they do not want to go to court. Not only is it expensive and time consuming, but they do not want a judge to make personal decisions for them and their family. So, the clients know that they want to stay out of court, but they're usually unsure about what the best alternative option is. Should they mediate or collaborate? When a client asks me this question I first explain the basics about each process.

In mediation my client and his or her spouse will be meeting with a mediator who will lead them through the issues that they need to resolve in order to come to an agreement. The client may (and in my opinion, they should) meet with an attorney before, during and/or after the mediation to make sure he or she understands her rights and obligations and that the agreement that is going to be signed is properly drafted, but the client will not have an attorney by his or her side during the actual negotiations. If the client chooses a collaborative divorce the spouses will each be represented by an attorney who is trained in mediation and collaborative divorce. But all negotiations will take place in face to face meetings that include the attorneys, the clients, and possibly divorce coaches and neutral financial professionals.

After discussing the difference in the processes, we'll discuss which one makes the most sense for this particular client. Mediation may be the best choice if the issues are relatively simple. But what if they're not? What if there are complicated financial issues to resolve? Mediation can still work very well if the client and her spouse are able to communicate relatively well and if there is a basic level of consideration and respect between them. Mediation might not be the best process however if one of the spouses knows much less about the finances than the other, or if there is some other sort of power imbalance between them. In that case, collaborative divorce could be a better alternative because the less powerful spouse will have an attorney by his or her side to explain the law and advocate for their interests and goals. Collaborative divorce will also make more sense if there are complicated emotional issues or differing goals with regard to child custody and parenting schedules. In that case, collaboratively trained mental health professionals in the form of divorce coaches and child specialists can be retained to help navigate these difficult issues.

After discussing these options with clients, they usually have a good idea about which process makes the most sense for them. The next step then is to help the clients figure out how to speak with their spouses about it. That will be the subject of a future post.

Governor David Patterson signed New York's no-fault divorce bill into law yesterday, bringing New York in line with the 49 other states that already have some version of the law. So what exactly does this bill do? It amends Section 170 of New York's Domestic Relations Law, which sets forth the grounds for divorce, and will now permit couples to divorce if one spouse swears under oath that the relationship between husband and wife has broken down irretrievably for a period of at least six months. Here's a link to the bill that was signed.

Claiming that there has been an irretrievable breakdown in the marriage will not automatically result in divorce. That won't happen until the couple has resolved the economic and child-related issues between them. But it will end one spouse's ability to prevent divorce by forcing the other to prove fault such as cruelty, abandonment or adultery, thereby trapping a spouse in the marriage until she or he gives into the economic or parenting demands of the other. And it will eliminate the need for couples who agree to divorce to allege that one of them was to blame.

Every divorce lawyer I know has been in favor of no-fault divorce. Not only because it will help their clients emotionally and financially, but also because it will eliminate the need for the attorneys to falsely certify their clients affidavits in which they "admit" such wrongdoing. Additionally, judges will no longer need to pretend they don't know that false evidence is being presented when two parties, who clearly agree that they want a divorce, come before them and present their divorce papers for signature. This sensible law was long overdue.