At the beginning of each new year, many couples who have been contemplating divorce make a final decision to move forward and end their marriage. That decision was probably hard enough to come to. But there is one more important decision the two of you have to make — HOW will you divorce? What process will you use? You may have heard about the collaborative divorce process from friends, or colleagues, or just your own research online. It sounds exactly like what you need, but you’re not sure how to talk to your spouse about the idea. The one thing you don’t want to do is try and force your spouse to use the process. You don’t want him or her to enter the process under duress. Instead, you want to make sure that your spouse has the information he or she needs to properly consider this process. Continue reading
Sarah Jessica Parker has another critically acclaimed half-hour show on HBO, but this time she is exploring the end of relationships rather than the beginning. Divorce finished its first season on December 11, but is currently available to stream.
Though fictional, I found many aspects of the series to be strikingly real. For example, Sarah Jessica Parker’s character Frances expresses the desire to have as peaceful a divorce as possible, opting to go through mediation instead of litigation. Frances’ husband Robert (played by Thomas Haden Church) initially agrees, but is soon swayed by a friend to skip mediation and hires a litigator instead, leaving Frances at the mediator’s office by herself for the first session.
The is the second article in a series focused on Why Court Should Be the Last Resort For Your Divorce. If you’d like a copy of the infographic that tells you more, click here.
Join me as we continue to examine the myriad reasons why you may want to reconsider the idea of having “your day in court.” Maintaining control and flexibility over your life and the divorce process are just 2 of those reasons. Continue reading
The is the first article in a series focused on Why Court Should Be the Last Resort For Your Divorce. If you’d like a copy of the infographic that tells you more, click here.
“Nobody can go back and start a new beginning, but anyone can start today and make a new ending.” Maria Robinson
If you get into an argument with someone, does it do you any good to dwell on it for the rest of the day or the week or the year? Most people would agree that revisiting the argument over and over again serves no purpose other than to compromise their productivity and the quality of their life. It’s common sense. Focusing instead on the present and the future, on the rest of the day, enables you to go back to being your best self. Eventually, you will forget about the argument—and perhaps even try to mend fences with the other party.
As a mediator and collaborative lawyer, I attract clients whose main priority is to come to an amicable agreement. What I want them to understand is that an amicable agreement does not equal a vague agreement. We need to balance the desire for an amicable divorce negotiation with the need to create an agreement that will allow the couple to live amicably long after the divorce is finalized.
Divorce agreements are living documents; my clients are going to keep it alive by turning to it for answers, well into the foreseeable future. A good agreement is therefore a durable agreement.
I have written before about the benefits of mindfulness and conscious coupling. In this blog I focus on the mindfulness of the attorney or mediator who is working with the couple. Let’s call it “conscious lawyering.”
For a couple considering divorce, the process is going to involve uncomfortable feelings and situations. As a collaborative lawyer or mediator, I am part of that process, too. So the first step to conscious lawyering is taking care of myself; by being mindful of my own emotions and reactions at the negotiating table, and by being able to look at a situation objectively with a wider lens.
|This is a continuation of my previous post that explored what a “simple” prenuptial agreement looks like and when a more complex agreement may be needed. In this post we move beyond the basics of separate property and marital property to explore four more specific areas that a prenup can help clarify and solidify: distribution of marital property, real estate, spousal support, and estate rights.
Distribution of Marital Property
In New York State an asset earned during the marriage is considered marital property to be divided equitably. Keep in mind that “equitable” does not necessarily mean “equal.” Much litigation has ensued over how assets are to be divided. Prenups can be helpful because it allows a couple to make this determination at the beginning of the marriage. Many couples simply agree in their prenup that all marital assets will be divided equally. Others agree that those assets will be divided according to another set percentage. While still others agree that the division of the marital assets will change according to the length of marriage or other conditions.
Real estate is often a big issue in many prenups because of the many ways that separate property and marital property are combined to purchase and/or maintain real estate. For example, a couple may purchase a home during the marriage (which is assumed to be marital property), with one or both spouses contributing a significant sum of his or her premarital money to the down payment. In this situation, the prenuptial agreement should make it clear that a spouse who makes a down payment will be entitled to a credit for that investment and what that credit will be. But will it be a dollar-for-dollar return on that investment, or will it be based on the increase in value of the home?
Some other questions I will ask about real estate include:
Prenups often address spousal support in one of these 3 ways:
Prenups become less “simple” as we move down that list.
Your prenup can also specify how you will share property after one spouse dies. The simplest prenups just reiterate the law, which in New York means that a surviving spouse will receive his or her “elective share” of the other spouse’s assets. More complex prenups will specifically state that the deceased spouse’s separate property will not be shared upon death — or they may have a different scheme if the couple has children or if the death occurs while the couple is still married but has already decided to divorce.
A prenup is the perfect way to avoid having a judge make all of these decisions for you if your marriage ends with a divorce or there is a death. A qualified attorney will go through all the issues and ask all the questions that you might not ask yourself (or your future spouse), so that you can make sure the prenup protects both of you. It is what I call “conscious coupling,” and I consider it a sign of a strong marriage to come; it shows that you have foresight, are able to communicate with each other, and can deal with uncomfortable topics—the perfect practice for marriage.
To get started with a lawyer who has many years of experience drafting successful prenuptial agreements, and who will ask the questions you do not know to ask, contact us today.
Vacca Law & Mediation
60 E 42nd St #1420
It’s wedding season, and in addition to checking the typical wedding-related tasks off the to-do list, many soon-to-be newlyweds are reaching out to lawyers like me to draft prenuptial agreements. And one of the most common things they tell me is: “We just need a simple prenup.”
For the people who truly want a “simple” prenup, I have good news: You may not actually need one. A simple prenup may simply mean that you will be signing up to do exactly what the law dictates for divorcing spouses. So what does the law mandate?
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
– Abraham Lincoln
When divorcing couples choose to negotiate the terms of their divorces outside of the court system—whether through mediation or collaborative law—they typically have the best intentions going into the process. They want to be fair to each other; they want to conserve time and money by staying out of court; they want to keep their kids out of their disagreements.
But as the process moves forward, some realizations quickly set in: Negotiating financial and child-related issues that affect an entire family is hard work and probably won’t happen as quickly as everyone wants. Emotions flare, and not everyone is able to be their best selves at all times.