New York Divorce Lawyer Blog

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

A TYPICAL COLLABORATIVE ROADMAP IS COMPOSED OF THE FOLLOWING STEPS:

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

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

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

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

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

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

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

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
friendly?"

- are you trained as a mediator?

- have you acted as a consulting attorney for clients who have participated in
successful mediations?

- 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.

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

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?

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.