Recently in Spousal Maintenance Category

October 8, 2014

The Unofficial, Long-Term Marital Separation

Thumbnail image for The Unofficial, Long-Term Separation By Andrea VaccaSomething I have been seeing more and more in my practice as a mediator and collaborative attorney are couples living apart for long periods of time, without being legally separated.

For various reasons, many married couples decide to separate for years without having any legal agreements in place. They don't realize until years later when one of them is seeking a divorce that the legal, financial and emotional issues caused by the years of separation can become very difficult to resolve.

Below are just some of the pitfalls that people encounter when they separate unofficially:

  • When two spouses start living separately, the clock starts ticking on a new status-quo. Eventually, the lifestyle maintained by the lower-earning spouse during the separation can become the standard for the amount of spousal support that is required in the future.
  • Non-legal separations do not necessarily end the legal financial union between spouses. That means all the money earned - or debts being incurred - by either spouse may still be considered part of the shared marital estate.
  • The higher earning spouse is not necessarily going to get credit under the law for the amount of support they've been providing.
  • Once a couple moves into separate residences, communication between them can break down even more than it was while they were living together, which makes negotiating a separation agreement even harder than it has to be.
  • If either spouse starts a new relationship and spends money on the new partner, it can be considered a "waste of marital assets," which can result in complicated requests for repayment (financially as well as emotionally).

Often times, clients will be dealing with many of these consequences all at once. For example, a client of mine was supporting her husband for 10 years after she moved out. He was still hurt by the fact that she left him and, because she felt guilty, she still gave him access to her credit cards and she was still depositing her paychecks into a joint account. They hardly spoke and had each moved on to new relationships but the hurt and guilt was still there.

I had to tell her that her husband had every right to expect that the comfortable lifestyle she had provided for those years would continue. It was difficult for her to accept this fact, but she eventually agreed to give her husband some significant real estate holdings she had acquired during their separation in order to reach an agreement with which he was comfortable. This was despite the fact that she had already paid a small fortune to support him and they had lived the majority of their married life apart.

As we were getting ready to sign the settlement agreement, she explained the reason for her generosity:

"I know I gave him more than I needed to, but I was ready to finally move on with my life and I decided it was better to give my money to him instead of our lawyers."

Why unnecessarily give money to anyone? If you are ready and willing to deal with the legal, emotional and financial issues of your separation, before you actually decide to move out, you will be better-protected in the long term. Let a mediator or collaborative attorney help you negotiate a written agreement where the needs of both you and your spouse will be considered. It will not only help to bring emotional closure to your relationship, but will protect both of you from potential legal and financial entanglements in the future.


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

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

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

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.