Recently in Family Law Category

February 13, 2014

Free Event Mar 18 - Emotional Economics of Divorce

Free Event Mar 18 - Emotional Economics of Divorce Featuring Andrea VaccaAndrea Vacca will be amongst the panelists at an upcoming free event, Emotional Economics of Divorce

When? Tuesday, March 18, 2014 from 6:00 PM to 8:00 PM (EDT)

Where? Citrin Cooperman, 529 5th Ave, 4th Floor, New York, NY 10175

Click here to register.

Details:

Marriage may be about love, but divorce is all about the money.

Divorce experts share vital information on strategies and decisions that can significantly benefit you as you navigate the legal and financial challenges presented by your divorce. Receive tips on staying calm, being prepared and creating the best possible financial outcome for everyone.

Topics of discussion will include:


  • Understanding legal and financial considerations as you negotiate your divorce

  • Learn what a divorce financial analyst is and how one is integral to the legal process - before, during and after your divorce

  • Tools that will enable you to stay calm and clear as you negotiate difficult conversations with your soon-to-be-ex

  • The secret to overcoming fear and uncertainty regarding the outcome of your divorce

  • How you can use this challenging time to grow personally while going through your divorce with grace and dignity

  • Understanding the roles of a forensic accountant in a divorce matter and the legal issues that may affect economic aspects of your divorce

  • How to avoid unnecessary costs during the divorce process

  • Process options to keep your divorce less adversarial and avoid litigation


Speakers will be available for Q & A after the program and refreshments will be served.

Click here to register and to read more about the event.


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

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

February 12, 2014

To Do No Harm

To Do No Harm By Andrea VaccaThe Hippocratic Oath, which reads in part: I will give no deadly medicine to any one if asked, nor suggest any such counsel, is often summarized by the phrase "Do no harm." This simple yet powerful credo is an excellent approach for solving problems in many situations, including divorce.

Contrary to the approach of traditional divorce litigation, which often serves as a poison pill, the approach of collaborative lawyers is to do no harm. When our divorcing clients come to us, they are scared, angry, and confused. Our job is not to instigate and play on those fears and anxieties. Our job is to help calm them down by helping them to find their voice and get their needs met in a way that will help them move forward with their lives. It is for this reason that I choose to collaborate, rather than litigate divorce and family law cases.

Not every attorney sees things this way. An example is a conversation I recently had with a woman just starting the divorce process. She told me that although she wanted her divorce to be as amicable as possible, the last attorney she had called immediately told her he would file motions with the court to "scare" her husband. He bragged of his experience using the courts to intimidate people, and he promised her that he would win her as much money as he could. He basically said, "We'll go after your husband with no holds barred."

On the other hand, sometimes it is the client who insists on going to court. For example, if betrayal is the reason for the breakup there may be a high level of emotion, which might compel a party to want his or her "day in court" to air the grievances. This knee-jerk reaction to betrayal and anger may be understandable on the surface, but people who expect to have emotional needs met in a courtroom are always disappointed.

I encourage my clients to try another way.

The collaborative law process is a less harmful alternative to litigated divorce. It starts with a contract signed by both the attorneys and the clients affirming that:


  • The attorneys and clients will not act in an adversarial way toward each other.

  • There will be no use of threats of any kind.

  • If there are children, their best interests will be the priority.

  • The clients are encouraged to work with other related professionals, such as mental health and financial professionals.

  • If an agreement cannot be reached in the collaborative process, the clients will retain other attorneys to litigate the case for them.


By following these basic tenets, we as collaborative attorneys are promising to do no harm and honoring the trust that our clients are placing in us.

But it is up to the clients to explore all of their options and choose the right lawyer for their needs. Clients need to understand that if they immediately choose to litigate and start their divorce within the court system, they will likely miss the opportunity to come to a peaceful, thoughtful and voluntary settlement. Working with a collaborative team helps spouses reach an agreement that meets as many of their their long- and short-term needs as possible - as opposed to the scorched earth and poisonous, winner-takes-all model of litigation.

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

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

October 14, 2013

Changing Course (in your divorce)

Changing Course (in your divorce) by Andrea VaccaIf you're in the middle of a litigated divorce and are unhappy with the way things are going, you can change course.

You might have started the divorce process with the goal of ending the marriage quickly and feeling as financially secure as possible at the end. You might have hired the first attorney who came highly recommended from a friend or relative who has been through their own divorce. And all seemed fine in the beginning. Your attorney said she understood that you didn't want to make your divorce World War III. She understood that you wanted to remain friends for the sake of your children. But as soon as it became clear that you and your spouse saw things differently, and conflict arose, the battle was on. Your attorney told you the judge is likely to see it your way and may have even encouraged you to write down all the divisive and emotionally painful issues between you and your spouse that would help you score points in court. And of course, your spouse's attorney told him or her the same thing.

Now, 6 months or 1 year later, you see how combative and unproductive the legal proceedings actually are, you're feeling more anger toward your spouse than ever and you're wondering, "How did I get here? This isn't how I wanted my divorce to go."

It's not too late to change course. For parting spouses who find themselves in an unwanted battle, turning away from litigation and toward a less adversarial approach to their divorce is still possible.

Some recent experiences with couples who moved from traditional (and costly) litigation to mediation or collaborative law have provided me with insights that I would like to share with you, or anyone you might know who is going through a divorce:

  • If you don't like the way things are going, explore a different approach: If you feel that the original process you chose for your divorce was a mistake, make a change as soon as possible. The longer a divorce continues in court, the more positional each side becomes. Things are said in court that cannot be "unsaid." Emotional damage can be done in the process that could make it more difficult for you and your spouse to ever come to a resolution or to be cooperative when living your post-divorce lives.
  • Your divorce lawyer is unlikely to be supportive of you trying a different process: He may tell you that he does not believe your spouse is capable of being reasonable and you need the "protection" that a court can provide. What he may not tell you is that he doesn't want to lose you as a client. This may be especially true if you still have a robust sum in your checking account. All attorneys hate to lose a client, but this is especially true when the client can afford to pay legal fees. If your attorney attempts to dissuade you from trying mediation or collaborative divorce, certainly listen to what he is saying, but remember that you are the one going through the divorce - not your attorney. The choice of process needs to be up to you and your spouse.
  • It takes two reasonable people to move away from litigation and toward a non-adversarial process: You may need to be the brave one who initiates a conversation with your spouse to find out if he or she is also unhappy with the litigation process. If you haven't had a civil conversation with your spouse in months, this can feel pretty scary. In that case, you may need some outside advice about how to facilitate the conversation. There are excellent divorce coaches who can help you get clear about what isn't working for you in the current process, what your true goals are for this divorce and how to explain all of this to your spouse in a way that feels safe.
If you have questions about divorce mediation and collaborative law and how they can change the tone of your divorce into one characterized by cooperation, call me at 212-768-1115 or visit my website.


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

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.

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

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

August 6, 2013

The Team Approach To Divorce

An article entitled The Team Approach to Divorce was published in the July 2013 issue of New York Family Law Monthly, an ALM publication. In the article, I explain how the professional-team approach works in the collaborative process and how attorneys who primarily litigate can use aspects of this approach to help settle their family law cases.

Read an excerpt below and the whole article by clicking here.


The Team Approach To Divorce

Using Financial and Mental-Health Professionals When Settling Family Cases

By Andrea Vacca

The Team Approach to Divorce

Most family law attorneys, whether they litigate or collaborate, have a go-to list of aligned professionals upon whom they rely to assist them and their clients in more complicated cases. We regularly consult with or directly refer our clients to accountants, appraisers, therapists and other professionals to help them achieve the best possible outcomes, given their particular circumstances.

There is a difference, however, in how litigating attorneys and collaborative attorneys use the advice and guidance of these other professionals. Litigating attorneys commonly use them in later stages of the case and bring these professionals in as experts in support of their clients' economic or child-related claims. Collaborative attorneys begin working with financial and mental-health professionals from the inception of the case, with the goal of working together as a team and helping the clients move toward resolution.


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

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

July 2, 2013

Supreme Court Strikes Down DOMA

Vacca - DOMA.jpgOn June 26, 2013, the United States Supreme Court declared parts of the Defense of Marriage Act (DOMA) unconstitutional. The decision, a huge civil rights victory for the gay community, will require federal law to recognize same-sex marriages the same way they recognize heterosexual marriages. This will grant same-sex spouses (at least in states that recognize same-sex marriage, such as New York) countless benefits that had previously been denied them under the statute. Now, same sex couples will be able to file joint income tax returns, enjoy spousal and survival status under Social Security, inheritance and estate laws, and be entitled to COBRA and other health insurance benefits. Effects on immigration have been among the most dramatic and immediate, as American citizens can now apply for permanent resident visas, or green cards, for their foreign-born same-sex spouses. Couples began receiving notification of approval for green cards as early as June 28.

As matrimonial attorneys, we are excited about this decision, not only because of the impact it will have on the same-sex couples that are married or contemplating getting married in New York, but also because of the ways in which it will affect the practice of matrimonial law. Previously, any agreement between same-sex couples, whether prenuptial or separation, required drafting around the federal benefits to which married heterosexual couples are automatically entitled with no way to compensate for the omission. Granting same-sex spouses the same federal rights as their heterosexual counterparts allows not just for more equality but also more uniformity under the law.

We applaud the Supreme Court for recognizing this and look forward to further advancements in same-sex rights.

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

May 15, 2013

The Power of Positive Psychology in Divorce - 5 Concepts

Vacca - pB - concepts to positive divorce - SKT - May 10 2013.pngOne of the reasons I am passionate about collaborative law is because I am able to learn so much from it. Recently my desire to learn led me to discover a new way of looking at the world through the lens of Positive Psychology. Positive Psychology is the scientific study of well-being, happiness and what helps people to thrive as opposed to just survive. I decided to delve deeper into the subject and I emerged from my studies with a Certificate in Positive Psychology. For this post, I thought I'd share some of what I've learned along the way and how it is applicable to my clients who are divorcing.

1) The importance of feeling all emotions

Positive psychology is not about positive thinking, it's about realizing that experiencing difficult emotions is a necessary step to realizing the more positive emotions in life. In other words life can be difficult at times, especially when you are going through a divorce; but don't get down on yourself if you feel down. Give yourself permission to feel hurt, angry or fearful. Only then will you truly be able to feel the joy, gratitude and peacefulness that exist in other parts of your life and in your other relationships.

2) Strive for post-traumatic growth

Most people have heard about post-traumatic stress, but there is also such a thing as post-traumatic growth. Like Nietzsche said:

That which does not kill us makes us stronger.

He was absolutely right. One of the books that has had a great impact on me is called What Doesn't Kill Us: The New Psychology of Post-Traumatic Growth by Stephen Joseph. In it, he uses a great example involving a vase: When a marriage ends, people feel their life has been shattered, almost like a beautiful vase that fell to the floor and shattered into dozens of different pieces.

What do you do? Do you try to put that vase back together to make it look like it did before, knowing that it never will? Do you want that vase so badly that you don't care what it looks like? Or do you say, "I'm going to make a new piece of art from these beautiful pieces."

In other words, you will see that the beautiful pieces of your life that remain, such as your kids, your friends or your work, can be put together to create a fulfilling and happy life. The end of your marriage (although traumatic) does not have to ruin every other aspect of your life.

3) Look at your divorce as a peak experience

When I say "peak experience" I don't mean one of the most wonderful things that has ever happened to you, but an experience that takes you to a new place where you can see a new landscape. Any kind of trauma can be a peak experience.

For example, when a person has a near-death experience, life never looks the same - usually for the better. If you were to look back on your divorce, what strengths did you call upon that you didn't know you had or just hadn't used in years? More importantly, when you look forward, what places do you see yourself going from here?

4) Have a growth mindset

If you have a growth mindset during your divorce, you will regularly be asking yourself, "What will make me more empowered?"

Take it one step at a time. The first step is believing in yourself, and your ability to get through difficult situations and learn from them. You'll be able to better grow through those challenges, but you have to believe in yourself.

For instance, you might not have been a financially aware partner. Your spouse might have taken care of the finances, and it can be really overwhelming and scary to people to step into that role - but once you do it yields incredible freedom and you realize you're actually good at it. Or maybe you even like it.

5) Learn to be resilient

Are you viewing yourself as a survivor or a thriver? Do you want things to be better and be different? Achieving those goals often comes down to how you talk to yourself. If you say, "I want to be better on the other side of this; I want to learn and grow" then you're going to be better able to create that reality for yourself.

I hope this post has given you an idea of how the principles of positive psychology can help you or someone you know grow from their divorce. There are many resources available that can help you learn more about it. For more reading recommendations from me, email me at avacca@vaccalaw.com.

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

April 18, 2013

The Road Map to Collaborative Divorce

Vacca - pB - The Road Map to Collaborative Divorce - SKT - Apr 18 2013.jpgThe 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.

Vacca - image - headshot - skt - apr 18 2013.jpgAndrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

November 21, 2012

Use of Technology to Reduce Conflicts in Co-Parenting

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.


October 3, 2012

How to Protect the Family in the Face of Divorce

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.

September 17, 2012

The Role of a Child's Wishes When a Parent Wants to Relocate

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.

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.

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 § 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.

October 8, 2010

Cohabitation Agreements Make Sense For New York Parents Who Choose Not To Marry

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.