The Nurse with a Purse and Sugar Daddy Dynamic

The idea of a “sugar daddy” is very common and well-known: A “sugar daddy” is an older man who marries a younger woman and takes care of her. There is a similar, but lesser-known dynamic when the older marrying spouse is a woman. This dynamic has been referred to as the “nurse with a purse.” In both cases, it’s equally important for the older spouse to obtain a Prenuptial Agreement.

Often, the woman in the “nurse with a purse” situation is in her 50s or older, highly capable, financially comfortable, healthy and has been married before; she is typically either widowed or divorced. Many — although by no means all — women who are in these circumstances come from traditional or religious backgrounds that particularly value marriage. They may feel like outcasts in their communities and immediate social circles when they are single. When they finally meet a suitor for marriage, their overwhelming relief often makes them walk on tippy toes, feeling they have little leverage to impose the contingency of signing a prenuptial agreement on the marriage. They are afraid of offending and warding off their prospective husband. They may also be more idealistic and resistant to believe that divorce can happen.

In this situation, when the woman remarries, she pays the bills and household expenses. After say — an eight-to-ten-year marriage — that ends in divorce, she often ends up completely depleted financially because the man is not well or is, for some other reason, monetarily dependent on her. The woman often has to assume more of a caretaking role. In such marriages, the woman may get very little from the relationship in terms of actual emotional support, friendship, and household help; literally, the only thing she may get is a man by her side and the status of being married. Several of my clients have fallen into this category and described these exact sentiments to me.

When the woman and her husband end up in divorce, it can have devastating financial consequences. The woman may have her own children she is trying to put through college and is carefully allocating her resources. There is an adage: “As long as you are young and healthy you can generate more money.” However, these women — who are often in their 50s and 60s — cannot generate more money that quickly. They are at the end of their working years. It is very debilitating to them to see that much money wiped out at the time of the divorce in equitable distribution and maintenance payments, as well as litigation expenses.

It is more common for sugar daddies to assert themselves pre-marriage and demand that a prenuptial agreement be signed, while women have a harder time finding their voice on this point and asserting themselves.

If you are remarrying and want to protect your assets both during your marriage and in case of divorce, please don’t hesitate to contact me.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

Help! Is My Attorney in Bed With My Ex’s Attorney?!

On several occasions, I have been the incoming attorney where the client did not trust the attorney they initially retained, because they felt that attorney was in bed with their ex’s attorney, so to speak.

They had observed the two attorneys — opposing counsel to one another on the given case — engage in overly friendly behavior and banter in the court hallways and overheard their attorney cutting deals and verbally committing to settlement agreements to the opposing counsel that they had not spoken about with them (their own client) previously. In one particular case, the client overheard her attorney agreeing to have her pay a sizable amount in maintenance without first discussing it with her (this was before the new maintenance legislation was passed); in another case, the client overheard his attorney agreeing to give the wife full custody with limited visitation to him (the father) where the client was a very hands-on and involved father and wanted a 50/50 custody split.

These observations breed distrust, as the client feels that their attorney is not advocating for them. They feel their attorney is in cahoots with opposing counsel and is more interested in their relationship with opposing counsel than with them, the client, thereby selling them down the river in the process.

It is important for attorneys to have a positive rapport with one another, but there is a fine professional balance.

The relatively small pond of attorneys specializing in matrimonial and divorce law can often feel confined and incestuous. The attorneys tend to see each other frequently (for example, in court, at continuing legal education programs, and they are often repeat opposing counsel to one another). They are familiar with and often respect each other’s work.

A friendly professional relationship between your lawyer and opposing counsel can benefit you, because it can help the case proceed more smoothly and quickly. For example, if your lawyer is friendly with opposing counsel, opposing counsel will be more likely to extend professional courtesies when they are requested and less likely to argue over points of minutiae that are vacuous holes of time and money. A friendly professional relationship generally also involves mutual respect for the other person’s skills and professionalism. A lawyer who is respected by his/her colleagues can be a more effective advocate for you.

There are best practices attorneys should follow to foster the client’s security and confidence in them and the progress of the case. Foremost are the needs for transparency and honest, clear, open communication.

Before agreeing to a deal on your behalf, your lawyer should discuss with you the goals of the representation, the scope of his/her authority to reach an agreement on your behalf, and the specific details and ramifications of any particular piecemeal or global settlement.

While your lawyer should advocate zealously on your behalf — both in negotiations and when arguing to the court — keep in mind that it’s also part of his/her job to advise you about the realistic chances of achieving your goals in light of the governing law. Although clients do not always welcome this kind of information, if your objectives are realistic, your lawyer may be able to help you resolve the case more quickly than if your objectives are unrealistic. Having realistic goals can also help minimize the emotional turmoil that can accompany divorce.

To ensure transparency, your lawyer should regularly update you and accurately report to you about what is going on in your case. You should be copied on all written communications.

Sometimes, the assigned judge will ask the lawyers to come up to the bench or into the judge’s chambers without their clients. Because transparency is extremely important, your lawyer should ask the judge if you can be present. If your lawyer can’t say something in front of you, he/she shouldn’t say it at all.

Feel free to contact The Law and Mediation Offices of Cheryl Stein with any questions.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

Should You Take Your Spouse to the Cleaners?

There is often a misconception that many divorcing parties want to milk their spouse dry, leaving them to be a homeless bum in a cardboard box on the street. The overwhelming majority of divorcing parties that I’ve encountered do not fall into this category; many are scared and just want to know that, at the end of the day, they’ll get what they need. For those who DO want to milk their spouse dry, the law may not be in their favor.

The maintenance legislation was revamped at the end of 2015 and became effective in January 2016. Under the new law, people who have been out of the workforce for a long time are typically at more of a detriment than they were under the old law. The law sets the maintenance cap at $178,000 of the payor’s income and imposes more stringent and often less generous caps on the duration of the pay-out.

A professional woman who left her high income, fast paced, quickly evolving career 8 years ago to get married and be a full time home-maker, upon the couple’s mutual agreement, may only be entitled to 2.4 years of maintenance under the law, which mandates the pay-out to be 15% – 30% the length of the marriage for marriages up to 15 years. Further, as has always been, the maintenance would be taxable to her as income and tax-deductible to him, netting her less than the designated amount after Uncle Sam’s helpings. This couple may have built themselves up to a comfortable lifestyle based on his income but did not acquire a lot of assets to allocate in equitable distribution. She may feel resentful that her husband now has a glorious career, which he was able to nurture and focus on due to her home-making efforts, and that she will never be able to catch up. Her killer instincts may kick in. She may feel that milking her spouse and hanging him out to dry is the only way she can level the field and get her needs met, especially when trying to spread the resources from one household into two. She may end up knocking her head against a lot of brick walls in such pursuit.

Under the new law, enhanced earning capacity, which was always a hot and controversial topic surrounding the valuation of licenses and degrees, is no longer considered marital property to be distributed in equitable distribution. We still account for the efforts and contributions the non-titled spouse made to the enhanced earnings of the titled spouse, but the non-titled spouse has the burden of proving what the value is and that their contributions were substantial and direct; if they fail to prove either, no can do! Overall, the distributive awards on enhanced earning claims are uniquely low.  

As for equitable distribution of businesses, 5% – 33% is the general range awarded to the non-titled spouse. The non-titled spouse has the burden of proving the value, as well as the direct contributions of the titled spouse and his/her own direct and indirect contributions as the non-titled spouse. Business valuations are often expensive and can significantly balloon the already hefty divorce expenses.

There is also the concept of double and triple dipping, where you’ve captured income too many times. Once an income stream is monetized and distributed towards one pay-out, it cannot be used for another pay-out.

Classic double dipping cases involve intangible assets, such as professional licenses, good will, and the value of a service business, and not tangible income producing assets, such as real-estate. Once the intangible asset has been monetized as an asset (via capitalization of the income to a future period) and distributed as such, it can no longer be counted towards maintenance.

Therefore, non-titled spouses try to argue that what’s on the table is a tangible asset, and the non-titled spouse tries to argue that it’s a service business and play up the goodwill factor involved. Classification of the asset is key. 

Surprise! There is also a common desire to want to share in the assets but not the debts. However, courts typically allocate the debt as well; you obviously can’t just take the assets and none of the debts. Once the debts are distributed, what is left of the assets may be nothing to write home about.

Before expending a lot of time, money, energy and resources in a quest to take your spouse to the cleaners, learn what’s involved. You may want to choose your battles carefully.

Feel free to contact The Law & Mediation Offices of Cheryl Stein with any questions.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

New York Is a Melting Pot: Know the Culture You’re Working With – Part 2

“Home is where the heart is” is a lovely, flowery, figurative expression that surely makes sense and resonates. However, on a very fundamental level, home is made of bricks and mortar. It is the basic foundation of Maslow’s Hierarchy of Needs, where we can cohabitate and be physically protected from the external elements.   

Nearly all emphasize strong family connections, and many exhibit multi-generational homes with pooled resources and shared responsibilities, spanning two to three living generations under one roof or within close proximity.    

Such living arrangements cast a widespread shadow over a couple’s marriage and divorce. 

There is the meddlesome in-laws scenario, where a couple cannot evolve into their own matured, intimate, and trusting entity, because there is the incessant, intrusive third wheel of one or both of their parents sticking their noses in. Such parental behavior is often enabled by the adult child, who has great difficulty cutting the umbilical cord; it debilitates grown, married children and prevents them from being able to think for themselves and make their own decisions, together with their spouse, without constantly conferring with their parents and getting their parents’ approval.  

A client from a tight-knit Russian-Jewish background dreaded and delayed going home every night, because he did not want to be coming home to his mother-in-law’s constant badgering. He could not get his wife to divorce her mother, so he finally ended up divorcing his wife, whom he liked. 

Another culturally embedded younger couple was on the verge of divorce, largely due to the wife’s mother’s intrusiveness. With the help of a skilled family therapist, the couple moved to a different area, an approximate 1.5 to 2-hour drive from the maternal grandmother, and they were able to develop as their own marital entity and work things out. 

An additional influencing factor is the way larger family structures share and pool resources. Monies and resources received by an adult child can then be imputed to that adult child or otherwise accounted for to compute their basic child support obligation and statutory add-on expenses:

•As for basic child support, if a divorcing parent is living rent-free at their parent’s house and receiving many other paid benefits from their parents, a judge may decide to impute some/all of the monetary value of those resources to the divorcing parent for child support calculations; it is within judicial discretion, and there is supporting case law for this position.

•If funds for the children’s religious private schools are paid for by a set of grandparents year after year, a judge may impute that money to the divorcing parent and take it for granted that those funds will be forthcoming and accessible to them moving forward. 

•Childcare is an add-on that is allocated pro rata, pursuant to Domestic Relations Law Section 240 and the Family Court Act section 413–the applicable statutes. In the subject homes, a grandparent or aunt living under the same roof as the divorcing parent or nearby is often the built-in babysitter, negating the need for childcare. A parent can then say, rather than paying their pro rata share towards add-ons, they will use their mother as their babysitter/nanny. This is a sound and sensible position a party may take.     

The sale of the house/marital residence is typically zoomed into full focus at the time of divorce, and much attention needs to be paid to the details. Most commonly, when divorcing parties jointly own a marital residence, they agree that the primary residential parent (still, traditionally, the mother) shall be able to reside in the residence, together with the children, until the youngest child is 18 years old, at which time the residence may be sold and the net proceeds of the sale appropriately allocated between the then divorced parties (this may be many years post-divorce). 

Muslim clients have relayed that this simply does not work for them; that their (often ivy-league educated, high-income-earning professional and well able to support themselves) adult children live with them until they are married, often well into adulthood. They are not willing to sell the house when the youngest child turns 18. This is not exclusive to Muslims; other religious and traditional groups have similar protocols. 

Critical details such as these permeate and interlace themselves throughout the divorce negotiations. The right balance must be struck for the specific clients at the table; not some generic notion of what the “Apple-Pie” American family looks like. The parties’ culture may put limitations on their options when negotiating a divorce settlement. 

These clients do a balancing act and straddle the world of their immediate nuclear religion and culture and American culture. When servicing them, attorneys and mediators should be flexible enough to dance their dance and maintain proper footing and balance, while always using the law as a backbone and basic foundation.

Feel free to contact me with any questions.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

New York Is a Melting Pot: Know the Culture You’re Working With

In New York, there are enclaves of different traditional communities, including a strong Indian, Jewish, Muslim, Chinese and other Asian presence. There is also an amalgam of different religions, as people often have some sort of religious outline to their traditional backgrounds. Family law attorneys and mediators must be sensitive in their approach when handling divorce for those with specific cultural or religious guidelines.

During the initial intake stages, it is important to check the client’s temperature to learn their tolerance level. What are their views on divorce? What are the views of their nuclear community, which they are intrinsically a part of? Does divorce contradict the religious beliefs they otherwise subscribe to? Is divorce still highly stigmatized in their community? Can they go through with the divorce right now? If they can’t, there is a reason they came to you in the first place—what needs to be addressed?

Some cultures and religions are anti- or highly resistant to divorce. A client may reveal that they are Muslim and attend mosque, or that they are deeply involved with their church, are close with their pastor and their church community, and feel divorce is against their religion.

It might be that divorce is the right solution, but it’s not the right time. They’re afraid of how they’ll be perceived in their community, and their religion tells them they should stay married. For these clients, family therapy, protracted and therapeutic mediation, a postnuptial agreement or a separation agreement may be better solutions in the here and now. These clients may eventually be able to follow through with the divorce, but the process of getting there and the clients resolving their inner conflict about it may need to run its course.

If the clients are Jewish, will their family or rabbi pressure them to exclusively submit to the Beis Din, and not initiate an action in civil court or withdraw any action previously submitted? These clients may receive a Hazmana from the Beis Din followed by warnings that they will be excommunicated from the community if they do not appear and submit to the Beis Din.

Perhaps a Jewish client signed a Halachic Prenuptial or Postnuptial Agreement with a binding Arbitration Clause, and they reveal to you that they did not understand and/or believe in it when they signed it or at the present time and question its enforceability.

In fact, a common trend now is for Jewish teenagers and young adults to get married shortly after completing religious seminary, when they are very young, and both husband and wife are still religious, having been exposed to similar influences until that point. Over time, one spouse leaves the religious lifestyle and no longer believes in its dictates, a process often referred to as “leaving the fold.” When this happens, divorce is almost always inevitable and imminent.   

As an attorney or mediator, it is also important to be aware that often people within specific religions and cultures are strongly networked and tend to live in the same area, typically attending the same mosque, church or synagogue. If a client comes to an attorney or mediator for a divorce and has a positive experience, they will tell others. Within a few years, a family law practitioner may find him/herself divorcing many couples within the same tight-knit community. This heightens the need for attorney-client privilege, as clients come in stating, “I want you to do for me exactly what you did for my neighbor,” as if it is a made-to-order cake, and then try to discuss their neighbor’s case and draw comparables. Often they think they know the details of the other person’s situation and further assume that their situation is very similar, when there are, in fact, critical differences. The attorney/mediator must be hyper vigilant not to be lured in by these statements and discuss the details of their other clients, which would breach attorney-client privilege.

As someone working in community services, practitioners cannot just operate from an intellectual/academic standpoint, where they defer to the statutory textbooks or mainstream everyone. It is not a one-size-fits-all approach—family law attorneys and mediators need to become aware of the culture of the clients they are serving.

I feel thankful to have the honor and privilege of working with many traditional and religious communities and to serve my client’s individual needs and sensitivities. Please feel free to contact me with any questions.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

‘Til Death Do Us Part…

“’Til death do us part” may more aptly be phrased “I will follow you into the grave!” 

I’ve had a number of clients come to me that live in loveless, self-absorbed, and contentious marriages but manage to exist, having developed a certain understanding in their relationship, such as living in separate bedrooms. Many of these people feel contempt, anger, or apathy towards their spouse. For example, their spouse may be extremely stingy; wastefully dissipate money on addictions; abusive, or duplicitous and cheating on or stealing from them. Nevertheless, for a plethora of reasons, they are often resistant to divorce and want to stay in the marriage.

Many times these people think that there will be justice and a sense of dignity and self-protection if they predecease their spouse, as they believe their spouse will not be able to get anything more from them then. They believe that they can exercise some control while they’re alive to ensure that what is theirs will be carefully allocated when they pass away.

They then become disheartened and their bubble is burst upon learning that their will may not be actualized according to their wishes, and that their spouse may be able to collect under the Right of Election. The Right of Election ensures that you cannot disinherit your spouse; they are entitled to the larger of $50,000 or a third of their spouse’s net estate. Learning this motivates people to find out their options, which include: 

•Signing mutual waivers, which is a critical dimension of both Prenuptial Agreements and Postnuptial Agreements, especially amongst older couples where one or both of them have established a significant amount of wealth and have grown children who they plan on bequeathing their estate to. The fact that their spouse would be able to collect a certain minimum amount throws off the dynamics of what their children could potentially get. Under regular law, you cannot write your spouse out of your will. However, this waiver can dictate that what is written in the will dominates. 

Prenuptial and Postnuptial Agreements are increasingly popular across the board, and especially among older, more established spouses, or people with significant family wealth.

The Prenuptial Agreement is obviously an exercise of foresight, caution, and investment in insurance prior to the marriage. Sometimes, people are wary about bringing it up with their fiance because they are afraid of their fiance’s reaction. However, there are simplified prenuptial agreements that can be entered into that set forth reasonable, modified rights, and waiving the right of election is almost always included in these more narrow, limited-in-scope agreements. It is not overly offensive nor does it shock anyone’s conscience, so to speak, prior to marriage, and fiances are generally amenable to signing and don’t feel isolated in the relationship by such.   

As mentioned, often people are already married when they first learn of the right of election, feel indignant about it, and torn by their basic desire to have their wishes as expressly set forth in their will trump. Once people are married and wanting to carve out certain understandings, they can include a waiver for the right of election in a Postnuptial Agreement. Sometimes when an unhappily married client comes to me in this type of situation, they feel their spouse will be so resistant to a Postnuptial Agreement, they would rather just go through with a divorce at that point.

It is important for people to understand how wills, trusts, and estates are intertwined with divorce, including the fact that on the heels of a divorce, new wills need to be drafted, as new beneficiaries and trustees will likely need to be designated. Also, people should understand the implications of the rights that come with the marriage, such as the right to take against your spouse’s estate.

If you’re going into a marriage or contemplating a divorce and you don’t want your spouse collecting against your worth or your estate, consult with a qualified divorce attorney to put the appropriate measures in place to ensure your estate is bequeathed appropriately, within your control, and according to your wishes.

Feel free to contact The Law and Mediation Offices of Cheryl Stein with any questions.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

It’s None of Your Beeswax!

I once read in a psychology journal that you can learn more about a person by looking through their drawers for a few minutes than you can by living with them for many years. Drawers are where people hide things, and oftentimes, even insightful, intuitive people find out they are living with someone that they do not know so well. It doesn’t matter the duration of the marriage. The irony is that marriage is commitment, yet it’s often in the unraveling that people come to know each other in a much deeper way than they ever did. 

A couple of reasons for this include:

1.  Hindsight is 20/20. When you look backwards at things, they start to make sense.

2.  Through the discovery/disclosure process, each person learns a lot about the other that they may not have been privy to learning before. 

In mediation, the discovery process is not enforced, but each party has to sign in the agreement that there has been full disclosure; that they are satisfied with the disclosure; and that the agreements they come to are fair and equitable. Sometimes, parties choose to waive full disclosure for various reasons, including that they just want to get the process over with; that they want to have an amicable relationship with their ex-spouse and feel the disclosure process will create too much hostility; and that the disclosure process is too expensive and cumbersome. In these cases, we need to warn the parties that they may be blindly signing away some of their rights and include in the agreement that the parties waived their rights to full disclosure.  

In litigation, parties have to fill out a Statement of Net Worth, where they must include their separate and joint assets. Oftentimes when I’m working with a client on the Statement of Net Worth, they will give me a first draft that does not include their separate property. They ask me about a dozen times, “Do I really have to include that separate property?” They may further state in exasperation, “It’s nobody’s B.I. Business!” They hid that separate property from their spouse during the marriage and it’s like standing naked having to reveal it. I’ve seen cases where all of a sudden the party got so scared and started to agree to settle when the judge ordered them to reveal their separate property in totality. 

Most people don’t like their spouse better after discovery. Parties have “A-ha!” moments; things start to make sense to them. First of all, people see how their spouses spent money because personal and business credit card statements are subpoenaed. If one spouse billed a lot of $500 meals at restaurants and hotel charges during a specific time frame, it often confirms people’s suspicions that their spouse was having an affair during that period. 

Even through the discovery process, divorcing parties may not be satisfied. They still may feel there’s something underneath the surface that they’re not scraping up; that the other party was clever enough to hide something over the course of 25 years.   

The presumption is that anything accumulated during the marriage is marital property. The person who claims separate property must prove that. Tracing exactly what is separate and what is marital property hinges on the discovery process. A lot of times separate and marital property can become commingled, which we’ll talk about in another blog. 

This is obviously less important for people who get married when they’re very young, as they often don’t have a lot that’s separate. But once people get up there in years before getting married, and there’s a lot that’s separate, the tracing process becomes important.  

When clients decide if they want to settle or proceed, they have to be fully equipped. They need to have seen the numbers themselves. They need to have experienced some of the process that we were going through in litigation. They have to understand that what we were trying to do during discovery wasn’t just ordering people around. We were trying to find out what the best possible deal is, based on the numbers and the situation at hand. 

What’s interesting is that people try to lie so obviously. For example, one spouse may claim on their Statement of Net Worth that their car payment is $300 a month, but when you look at their credit card statements, it clearly shows that they’re paying $750 a month, or vice versa. 

I have my clients take an active role in the discovery process. I have them tell me everything they know and anything they want subpoenaed. Records are subpoenaed when litigation attorneys are not forthcoming. In addition to the attorneys, the parties themselves should look through their spouse’s records and account statements to look for inconsistencies, based on their experience being in a relationship with the person. 

Feel free to contact The Law and Mediation Offices of Cheryl Stein with any questions.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

How Enforceable Is Your Divorce Agreement?

The agreement is finally signed. The ink is drying. The divorcing parties want to let out a big sigh that it’s finally over. But is it?

Last month, I wrote that there is no such thing as a gentleman’s agreement, but what about when you have a signed and duly acknowledged agreement?

Good lawyering is, among other things, the art of utilizing words in the most poignant and effective manner. Words, sentences, and terms are carefully calibrated; their misuse can have a deleterious effect. Every word present can count. Every word missing can count. Details matter!

Even a written and signed contract is not always as enforceable as people often think. When terms are included that are against public policy, those terms hold no weight.

An example of this relates to custody. Everything pertaining to custody is subject to court review and approval. Some divorcing parties are resistant to court. They want everything completely private—between themselves and their mediator and/or select arbitrator only—with no court interference. Regarding custody issues, however, the court is the parens patriae (a doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf), and they cannot be divested of that authority. The court cannot be written out of the agreement. Similarly, naming a guardian for a child in an agreement is likely to be unenforceable.

On a further note, parents cannot assign their decision-making authority to third parties. It is common for parties to erroneously write in their agreement something like the following: “If the parties disagree regarding health-related issues, the child’s treating physician shall make the decision; if the parties disagree regarding the child’s educational needs, the child’s principal shall make the decision.” Clauses such as these would not be upheld. The respective physician, principal, etc. can assist the parties in coming to decisions but cannot be the ultimate decision makers.

With regards to support, maintenance cannot be waived if the result is that one of the parties will become a “public charge,” meaning eligible for public assistance. This is, obviously, upsetting where one of the parties makes a significant amount of cash off the books and indicates on their tax returns that they are making nearly nothing, rendering them eligible for many government assisted programs, and the other spouse is paying taxes on their total income. This can create an unfair imbalance in that the tax paying spouse may be obligated to pay maintenance to the spouse skirting tax laws, and this cannot be waived.

Child support is a biggie! A divorce agreement waiver of child support will not be enforced if the needs of the children are not being met; and if parties indicate that they opt out of modifying child support if there is a substantial change in circumstances, the court is likely to hold the “opt-out” unenforceable when a “substantial change in circumstances” rolls around.

Agreements that resolve divorce often reflect a delicate balance among issues of custody, support, and equitable distribution. Apples are often exchanged for apples, and they are also exchanged for oranges. For example maintenance, child support, and equitable distribution all boil down to money and monetary values and exchanges. A little less in one category being exchanged for a little more in another category would be like apples being exchanged for apples. Sometimes, however, the parties barter things like mitigated support obligations being exchanged for the ability of one party to relocate with the children a greater distance away from the other parent; that would be more akin to apples being exchanged for oranges.

If part(s) of the agreement are later determined unenforceable, that can grossly affect the equilibrium of the agreement the parties initially agreed to voluntarily, believing they knew the values and rights they were exchanging in a concrete way. It can lead to a windfall for one party, and the other party being forced to give up significantly more than they anticipated and bargained for.

Independent covenant and severance clauses are staples in all the agreements to ensure that, if parts of the agreement are held to be unenforceable, the remainder of the agreement stays intact. However, in the worst-case scenario, a faux pas can invalidate the entire agreement.

For example, as it relates to the bigger all-encompassing picture, an agreement that mandates the divorce or mandates that the divorce not transpire violates public policy and can invalidate the whole agreement. In this scenario, even a severance clause cannot yield a messianic salvation for the agreement.

A large majority of people have no patience to read through dense and tedious agreements. However, it is critical that the divorcing parties perform the painstaking task of reading their agreement and understanding its provisions, consequences, and enforceability in totality.

First and foremost, my goal is to inform clients of the law so that they understand what they are agreeing to along with any accompanying positive and negative repercussions. I present the options and advise clients what I think the most appropriate options are for their particular situation. Feel free to contact me with any questions.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

Will the Court Allow You to Relocate with the Children?

I wrote an article for the New York Women’s Bar Association. Clients and colleagues may find parts of it, which I have parsed out, useful, as it highlights trends relating to relocation issues in divorce.

The judge who gave the discourse classified the recent trends and broke them down into primary factors and driving forces in the decisions rendered. It appears that Manhattan and the Bronx (both within the First Department of NYS Court jurisdiction) give heavy weight to the following factors:

1. The residential/custodial parent’s willingness to allow liberal visitation, access, and to foster a meaningful relationship between the children and the non-residential parent;

2. The non-custodial parent’s failure to disclose and engaging in subterfuge regarding financial information and/or delayed, erratic or delinquent child support payments; and

3. A strong familial network of contacts and support systems in the area the custodial parent wishes to relocate to.

In contrast, the relocation decisions of the Second Department (Brooklyn, Queens, Staten Island, Nassau, Suffolk, Westchester, Rockland, Dutchess, Orange, and Putnam counties) give emphasis to the residential/custodial parent being able to provide the children with better living accommodations, such as a more spacious house and a backyard, upon relocating—as well as a close connection and positive relationship between the children and the custodial parent’s network of support in the new location, such as a new spouse and/or stepchildren.

A judge’s determination in allowing one parent to relocate with the children, thereby affecting the parenting schedule, used to be predictable and quantifiable—but not anymore. Judges will often look to the recent Appellate Court decisions to determine the court’s direction.

I can guide my clients from experience, precedent, and the above factors. We can get all our ducks in a row from the beginning, putting forth the strongest argument for relocation based on the department we are in and the factors we know that department gives great credence to.

An example of a relocation case I had recently was a wife living in New York, making $100,000 per year, and her spouse, making $60,000 per year. They have 2 children that they’re sending to private school. The wife discovered that if she moved to South Carolina, she could make $40,000 more per year.

This couple had discussed moving while they were married since living in New York is so costly. Now that she wants to get divorced, she realizes she’ll be further stretched for money, as her husband is not committing to paying for private school. The couple has several options: Both could move, or she could move and pay for visitations, or she could stay (foregoing the additional $40,000/year in income). Since she wants to move, I can help her negotiate towards that.

In another example, a husband agreed to pay the wife $10,000 towards her relocation costs; she accepted and moved nearby. It was beneficial for her to move. They were able to maintain the visitation schedule as is. He actually saved money in the long run since he didn’t have to pay for years of fostering visitation, including travel and lodging expenses.

An overarching theme in all departments is when the non-custodial parent has a history of being delinquent in child support payments, it often works against them. In a relocation case, if the custodial parent has the opportunity to offer a better lifestyle and the ability to be closer to other family members, and the non-custodial parent has been remiss in paying child support, the non-custodial parent is likely to have a lower standing in court, and the judge very well may decide to rule in favor of the custodial parent wanting to relocate.

We can put forth the strongest relocation case based on the county (court; department) we are in and the client’s specific needs. If you have questions about your relocation issues, please feel free to contact me.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com