Recently in Divorce Grounds Category

June 19, 2014

Financial Infidelity and Divorce: It's Complicated

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

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

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

Financial infidelity includes such actions as:

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

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

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

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

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

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

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


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

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

June 7, 2012

Navigating the Gray Divorce With Dignity

My article on Navigating the Gray Divorce With Dignity was recently published by the Huffington Post.

May 14, 2012

Prenuptial Agreements: Top Ten Reasons for Signing

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.

April 7, 2011

Court Finds No Defense to New York's No-Fault Divorce Statute

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 ยง170(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.

October 15, 2010

New York Lawyers Can Expect An Increase in Cases Due to No Fault Divorce

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.

August 15, 2010

New York Finally Enacts No-Fault Divorce

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.