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April 16, 2014

The "Good Enough" Agreement

The Good Enough Agreement By Andrea VaccaWhen a couple divorces, it is usually the case that neither party gets everything he or she wants. Understanding and accepting this fact before you start the divorce process can help make the process less costly - both financially and emotionally.

One of the many things I have learned from my family law clients over the past 20+ years is that when they strive for an outcome (whether via agreement or court order) that provides them with everything they want, they are inevitably disappointed. Perfection is not achievable in life and it's certainly not achievable in divorce. Instead, I encourage my clients to think about what a "good enough" outcome would look like.

For example, if we're talking about spousal support - How much money per month do you really need or can you afford to pay? What are the most realistic options that are available to you now that there will be two households instead of one? Many times sketching the financial picture makes people cringe - especially if they're being told things that they don't want to hear, such as "You have too much debt," or "You're going to have to return to work." But sometimes there is no way around these facts. It's better to accept reality and work within those parameters, rather than to strive for an outcome that may look perfect to you but will leave your soon-to-be ex (and perhaps the children) suffering terribly.

The dangers of striving for perfection are also seen when negotiations have led to an outcome that both parties feel comfortable with, only to have one party move the goal post and suddenly insist they need to get more of something or give less of something else. Perhaps it's human nature to think: "This would be even better, if only..." but this mindset poisons negotiations and agreements - and can destroy whatever good faith a couple has built up during their settlement discussions.

To keep the good faith alive, I encourage my clients not to strive for perfection in their agreement, but simply to strive for enough. Author Bob Perks wrote about the idea of "enough" after talking to a man at an airport whom he had just witnessed wishing his parting daughter "enough." The man explained:

"When we said 'I wish you enough,' we were wanting the other person to have a life filled with just enough good things to sustain them."

This is the advice I give my clients - I encourage them to think about what is enough to sustain them in a place where they are safe and happy and can move forward with their post-divorce lives. To get to this place, they need to focus on the things they need instead of the things they want or have been told they deserve. And I encourage them to choose an out-of-court divorce process, such as collaborative law or mediation, that will allow them to be as creative as they need to be. This will help them be sure that their agreement will give each of them enough under the circumstances and will be fair and durable enough to stand the test of time.

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

January 6, 2014

Tips to Help Reduce Time and Costs When Negotiating Divorce Agreements

Tips to Help Reduce Time and Costs When Negotiating Divorce Agreements By Andrea VaccaIt is possible to make the divorce process more time- and cost-effective?

When potential clients consult with me in connection with their divorce, one of the first questions they ask is, "How much do you expect this to cost?" and one of the second questions is, "How long do you expect this to take?" Time and money are, understandably, major concerns of anyone entering the divorce process, so I know that these clients want to hear answers that reflect a best case scenario. I can never predict the exact end date or the costs involved, but I can tell these clients that the more of these tips they follow, the more likely their divorce process will run smoother and be more cost-efficient:

1. Make sure your spouse knows that you want to end the marriage. It's understood that asking a spouse for a divorce can be difficult, emotional and frightening, but try to find a way to broach the subject before you retain an attorney. Perhaps you can engage a therapist, marriage counselor or trusted friend to help you have this conversation. One of the least productive ways to start the conversation is to have an attorney send a letter to your spouse announcing your intention to divorce him or her. Remember, your spouse will have to first get over the emotional shock before any productive discussions can take place.

2. Resolve some of the less emotional topics on your own.
Before you meet with your lawyer, find a way to have a discussion with your spouse to determine what issues may be easier to resolve. Perhaps you can agree about how to divide certain assets. Or maybe you've already agreed on a parenting schedule. Any issues that you can agree on ahead of time, even if just in theory, will help you create a framework for the lawyers to work with and speed up the negotiation process.

3. Aim to be amicable. Finding solutions to unresolved issues will go a lot faster if you both intend to work fairly together to reach a compromise. Hire amicable-minded attorneys who are either collaboratively-trained or very settlement-oriented. These attorneys will encourage you to focus on your interests as opposed to your positions and they will help you stay out of court because they are used to settling their cases without relying on the involvement of judges.

4. Utilize other specialized professionals. If agreeing on financial aspects is the largest hurdle, hire a Certified Divorce Financial Analyst to help sort out the details. If emotional or communication issues are causing roadblocks, consider a divorce coach. Relying on your attorney for emotional support or for technical financial assistance can be unproductive and can lengthen the time before settlement is reached. You also get more for your money - these specialized professionals will charge much lower hourly rates than your lawyer.

5. Meet regularly. To prevent the process from stopping, starting, or even regressing, be as prepared and organized as possible and be willing to meet regularly so the settlement process can move forward in a linear fashion.

6. Cooperate, collaborate, compromise. Holding firm to your position and drawing a line in the sand will take more time and therefore cost more money. Be honest, ready to negotiate, and willing to give in on some issues.

The legal, financial and emotional complexities of your divorce will undoubtedly influence how long the issues take to resolve, but by following these tips you can be assured that the process will move forward as cost-effectively as possible.


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

September 26, 2013

The Repercussions for Divorcing Women Who Have Opted Out of the Workforce

The Repercussions for Divorcing Women Who Have Opted Out of the Workforce by Andrea VaccaLately, women are being encouraged to "Lean In", which is the title of Sheryl Sandberg's book that encourages women to take an active role in their career development. So I found it very interesting to read an article in the New York Times Magazine titled "The Opt-out Generation Wants Back In". It not only spoke to me because of how confusing all of these messages can be for women, but also because as an attorney and mediator who works with divorcing couples, I've seen the fall-out when women who opt-out of viable careers to devote themselves to their families end up divorced.

The story, written by Judith Warner, is part longitudinal study and part confessional, covering the lives of three women over ten years who decided to "opt out" of the working world to take care of their children. With husbands who brought home mid-six figure salaries, it seemed to them like the ideal opportunity to step off the career track and choose instead to be home with their children.

But for the women in the article, betting on "perfect" did not pay off. For example:


  • A weak economy took its toll on everyone;

  • The women who wanted to return to full time jobs found it nearly impossible to find well-paying work;

  • And for one of the women, her marriage eventually ended while her children were still quite young.


The story of the divorced women reminded me of many of my clients. The stress of juggling two careers and the needs of children starts to take its toll on the marriage, so one of the spouses (usually the woman) decides that quitting her job and staying home with the children will reduce the stress that everyone is under. And things may get better for a while, but eventually the problems of the marriage become more evident. Perhaps it's the financial stress of living on one income, perhaps the couple drifts further apart because they now have even less in common than they did before when both had active careers.

But when young children are involved, couples are understandably hesitant to just give up. They may be unhappy and unsatisfied, but they decide to stick it out. Until one of them just can't anymore. And when that decision is made, it is likely that the woman is going to have to go back to work. And so begins the long, slow journey back into the workforce. It can take many months or even years for a woman who has stepped off the track to resume earning even close to the salary she was earning when she opted out.

In a case where one spouse brings in most of the income, it is not uncommon for divorce litigators to advise the non-earner of the family to stay out of the workforce as long as possible. The intent is to win more spousal support or child support by showing an income imbalance. By contrast, in mediation and collaborative law a more realistic approach is used to discuss the short and long term financial needs of the family. This cooperative climate puts neither party on the defensive and results in more honest negotiations and better long term results.

For women who have traded the boardroom for the nursery but now believe their marriage may not last forever, my advice is to get back to work as soon as possible. The longer you're out of the workforce, the farther behind the curve you will fall when it comes to new technology or industry standards. Opting out of the workforce in order to care for children is an incredibly selfless act, but so is going back to work when one income just can't support two households.

If you have questions about divorce mediation, collaborative law and how they can turn the tone of your divorce into a cooperative one, call me at 212-768-1115 or visit my website.

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

April 25, 2012

Navigating Your Gray Divorce - Part II

"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.

March 16, 2012

Navigating The Gray Divorce - Part I

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.

February 27, 2012

Duplicative Awards Are Improper Under NY Temporary Maintenance Formula

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 ยง 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.

March 27, 2011

Why The Team Approach To A New York Collaborative Divorce Makes Sense

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.

February 13, 2011

As The Divorce Rate Increases, Divorce Financial Professionals Are Available To Help Clients Make Decisions Based Upon Economic Realities

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.