Required Reading for Involved Grandparents

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Recommended reading: “Well Into Adulthood and Still Getting Money From Their Parents” Wall Street Journal, January 26th, 2024.

In order to help their family thrive, many grandparents financially support their adult children and grandchildren. For example, let’s think about a couple that lives in Manhattan with an income of $350,000 – $400,000 a year. In many places, that would be a decent amount of money. If someone’s living on the Upper West Side, Upper East Side, or SoHo, it’s not nearly enough. In these situations, grandparents often give their children very large sums of money on a routine basis as well as make direct payments towards expenses like the grandchildren’s private school tuition and high-end camp experiences. 

I wrote an article called “Good Samaritan Divorce,” which talks about how the Good Samaritan often gets “punished” in some way. For your convenience, you can read the article here.

What does this have to do with matrimonial law? There are standards and statutes in matrimonial law, and grandparents’ consistent and unwavering financial support can affect the support payments. The general support standards are set forth in “The Child Support Standards Act” and “The Notice of Guideline Maintenance” – advisory guideline statutes for child support and spousal support (aka maintenance and alimony). 

The golden rule is maintaining the standard of living.

At the outset of a divorce case, both sides are required to accurately complete, legally acknowledge, and file with the courts a comprehensive document called a Statement of Net Worth, which sets forth the standard of living. 

The standard of living analysis is the most critical and guiding factor in negotiating support and arriving at a final agreed upon amount. The system wants children’s material lives to remain intact. The system wants the lower income earning spouse to have a window of time when they are getting support from their higher earner ex to give them a cushion and bridge towards being more self-supporting. 

I’ve had many cases where grandparents steadily gave money to their children’s family throughout the marriage to subsidize housing, car payments, parking, vacations, and tuition – like a weekly or monthly allowance, but for adults.

If the couple divorces, the idea of imputation comes into play.

Imputation: The assignment of a value to something by inference from the value of the products or processes to which it contributes.

Let’s say it was the husband’s father that helped support the family, the wife is going to want to come after that additional money, even though it doesn’t show in the husband’s W-2 or tax returns – that’s the inference.

Some grandparents feel like imputation codifies an agreement that would have happened anyway. Other grandparents react differently and chafe at the idea of being required to do anything. They also don’t want to be passengers on the roller coaster of their child’s divorce. 

In many instances, grandparents enter into promissory notes with their child for some or all of the funds they give – thereby making their child their debtor. They are trying to ensure that the monies are legally recorded as debts and not gifts or supplemental income. This is done to shield both the grandparent and their child in the event of a divorce. Both the grandparent and child should, however, consult with a qualified attorney when navigating this strategy. 

Understanding imputations and standard of living analyses takes a skilled matrimonial attorney – and the more experience they have, the better. Contact me at The Law & Mediation Office of Cheryl Stein to schedule a consultation.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

Softening the Blow to Children Amid Divorce

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Nesting takes a little finesse on the part of mom and dad, but the kids get to stay put.

If divorcing in a chaotic wild west style is on one end of the spectrum and divorcing like you’re having a congenial kumbaya and séance is on the other end of the spectrum, “Nesting” is the kumbaya séance. 

Nesting is a custody arrangement in which each parent is in the marital residence with the children, exclusive of the other parent, during his or her designated parenting time. 

During your parenting time, you’re with the children in the marital residence and the other parent goes to another residence – typically a “crash pad” apartment – close to the marital residence that both parents share in alternating fashion during their “off parenting” time. You then go to that other shared apartment when your ex comes back to the marital residence during his or her designated parenting time. 

By alternating which parent is in the marital residence, the children stay put in the marital residence “nest” they are accustomed to rather than going back and forth between both parent’s homes. 

While many nesting situations are 50/50 parenting time splits, it is fluid, and certainly not all are. Some have other parenting time splits, where one parent is clearly the primary “on parent.” 

Parents who choose nesting tend to be very concerned with the impact their separation will have on their children in what is typically demonstrated in self-sacrificial ways. It’s like they are trying to follow a code of rules towards executing as neat and seamless a separation and divorce as humanly possible, even if it will make them more uncomfortable. 

For example, the shared crash pad is typically a bare bones impersonal space where they are careful not to leave personal belongings that their ex could find, because while sharing it, they are divorcing for a reason after all, and want a semblance of privacy from their ex. Further, they are alternating to shield their children from having to do so, because moving physical spaces often is inherently an uprooted way of living. 

Nesting requires a high level of collaboration and cooperation between the parents. 

Litigating parties or parties whose only language and discourse is that of hostility are not candidates for a nesting arrangement. I have yet to have a case where one of my litigating clients was nesting. I would be curious if such a case exists and how it was pulled off.

Nesting is very attractive in the beginning to many couples who come to me for mediation and collaborative divorce before they have a firm footing and understanding of what their post-divorce family will look like. 

They want to nest as a transitional bridge for a one to two-year period to “safely” get the family to the other side – the post-divorce splintered family still trying to salvage whatever wholeness they can project to and for the kids.

It is often an idealistic aspiration. As the parties nest for several months and the separation terms come into clearer focus, the initial enthusiasm for nesting typically starts to fizzle, and most couples end up doing it for a shorter duration than they initially thought they would.

It is a testament that separation and divorce is a process and for those who have a good enough relationship with their ex to have the luxury to keep an open mind and try things, it can be a fluid process, where both parties mutually decide which avenues “fit” them individually and the kids, as they are going through it.

To learn more about nesting and whether it is the right decision for you, contact us at The Law & Mediation Offices of Cheryl Stein.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

The Interplay Between Divorce and Immigration: Part 2

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In last month’s article, we spoke about the intersection between matrimonial law and immigration in broad brushstroke terms. In this article, we parse out specific red flags and nuances to look out for in cases where immigration is a factor. 

Prenuptial Agreements:  

Many citizens who marry immigrants choose to have a Prenuptial Agreement in place prior to entering the marriage. 

Prenuptial Agreements are a sound measure for their protection and I highly recommend them. But, if you are doing a Prenuptial Agreement, you need to do it the right way. Make sure you are not just pushing meaningless ineffective paper around that isn’t worth the paper it’s written on. 

Many marriages involving immigrants happen in a speed of lightning way to offer the immigrant protection. The problem is that Prenuptial Agreements should not be done in such a mirrored manner. Chik chak hurried for a Prenup is asking for problems if the Prenup is later questioned and challenged. 

It is especially important that the Prenup be objectively fair and one that a reasonable person of sound mind and not at the heels of utter desperation would sign. 

It is also critical that both parties be represented by attorneys. I am often the lead drafting attorney. My clients time and again ask me if their soon to be spouse really – truly – absolutely needs their own attorney? Like they are willing me to respond something other than an unequivocal, affirmative, and trumpeting YES! 

These Prenups also tend to demarcate all property as exclusive separate property of the parties as dictated by title of ownership. 

While many Prenups do this, the Prenups involving immigrants do so at a higher average than others. Exclusive separate property Prenups, such as these, are an opt out of the New York Domestic Relations Law that dictates that acquisitions after the marriage date are marital, and to be split equitably, regardless of how title is held. 

See, https://www.nysenate.gov/legislation/laws/DOM; https://www.nysenate.gov/legislation/laws/DOM/236.

As we noted in “The Intersection between Divorce & Immigration: Part 1,” joint and commingled finances is one of the cogent persuasive points of evidence the immigration authorities look for to satisfy them that a marriage involving an immigrant is a bona fide marriage. 

So, we need to satisfy the seeming contradiction of a Prenup that designates all property as separate and the immigration authority’s criteria of evidence demonstrating joint ownership and commingled finances. 

We do this by carving out an allowance in the Prenup for a joint household account held in joint names. There is no minimum the parties must maintain in this account. The question becomes how the account funds would be split in the event of a divorce. Cash accounts are most typically split equally in divorce, but for these couples, we often specify in the Prenup that the funds will be split pro rata to contribution so that the spouse who funded it more heavily does not lose out. 

International Travel with Children:

What comes to mind most commonly is a fear that the immigrant parent will abscond with the children back to their native country and create hardship and aggravation for the American parent to get the children back. Depending on the immigrant parent’s country of origin and such country’s recognition of international law and conventions, this can be a real concern. We often work with international experts for these cases. You would also want to look at the Hague Convention and signatory countries to better grasp your situation. Non-signatory countries should justifiably evoke a healthy dose of trepidation and concomitant precautionary measures to ensure the children remain safely on American soil. See here to learn more:

https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction.html

Another aspect though is the perspective of the immigrant parent. They want protection and assurance that the children will be able to travel to their native country to spend time with grandparents and cousins for, say, a summer or long holiday break. The desire for the children to develop a strong relationship with family members abroad and also be immersed in the native culture of the immigrant parent sings loudly. This is often honored by the American parent as they too recognize the enriching benefits this can have on the children. We can address this by specifying in the parties’ divorce agreement the times and parameters for such extended travel and visits the children may have with extended family abroad. So long as the visits are to a country that is a signatory to the Hague Convention, the cost benefit analysis of them weighs in favor of the benefits. 

To learn more about these and further nuances of marriages and divorces involving an immigrant spouse and how to handle them, including: a) VAWA (The Violence Against Women Act, 34 U.S.C. § 12471 et seq.) claims and protections where domestic violence is involved (See here:  https://www.uscis.gov/humanitarian/abused-spouses-children-and-parents); in addition to those cases where, unfortunately, VAWA is manipulated and domestic violence is falsely claimed to gain an advantage; as well as b) difficulty locating your spouse when it’s time to serve them with the summons for divorce because they conveniently disappeared into the thickets of their ethnic enclave communities, contact The Law & Mediation Offices of Cheryl Stein at https://www.cherylsteinesq.com.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

 

The Interplay Between Divorce and Immigration: Part 1

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With the upcoming presidential election, crisis at the border, flood of migrants, and New York City being a sanctuary city, the topic of immigration has been getting a lot of air time, with all its inherent controversies and polar view-points.  

The magnified “crisis” is confined in scope to the illegal immigration issue.  

Untarnished by the mass media coverage is the uncontroversial paths towards legal immigration that have been steadfast and secure bastions for many years.  

A longstanding path is legally obtaining United States citizenship via marriage to an American citizen. See also, https://www.ice.gov.  

United States citizenship is one of the greatest assets we have. We sometimes take this for granted. It is incredibly sought after by many have-nots.  

America on its worst days is better than many other countries on their best days.  

We interviewed renowned immigration attorney Candice L. Ackermann, Esq. of Visa Law Pros – www.visalawpros.com – to discuss the intersection between divorce and immigration.

The golden rule is that a marriage entered into between a US citizen and non-US citizen needs to be a “bona fide marriage” at the time it is entered into to be recognized by immigration. A bona fide marriage forges the legal path of citizenship for the immigrant spouse. 

A bona fide marriage must be proven to the immigration authorities with evidence and documentation.  

The two most powerful pieces of evidence are proof of joint residence and commingling of marital funds, such as a joint bank account.  

None of us are so naive as to believe that all these marriages are authentic. We all assume that a percentage is based on artifice – a couple portraying the surface layer optics of a marriage – a citizen helping an immigrant friend or acquaintance as a benevolent gesture or in exchange for something tangible or intangible promised.  

But a percentage – larger than you may think – of these marriages are based on a genuine desire to build a life with the other person.  

Notwithstanding such aspirational marital goals at the outset, with an overall high divorce rate in this country, these marriages are, obviously, just as likely or unlikely to fail and end up in divorce as any other.  

Trouble comes when the marriage irretrievably breaks down within the first two years and before the final immigration interview to remove conditions to the immigrant spouse’s green card.  

Timing is critical. If the immigrant spouse can prove the marriage was bona fide when entered into, they usually don’t have to worry if a divorce action is commenced prior to their final immigration interview, but this is not a bullet-proof catch-all. There are exceptions and nuances that need to be accounted for on a case-by-case basis.  

If you and your spouse find yourself in this conundrum and you have questions about an inevitable and impending divorce, contact us at The Law & Mediation Offices of Cheryl Stein – www.cherylsteinesq.com – to learn more.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

Victimhood Has Currency

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Most people spin conflict so that they are the victor or the victim. Here’s why it’s important to keep that instinct in check.

The legal community focuses heavily on the topic of domestic violence with continuing legal education seminars and pro bono clinics. There is even a specialized court called the IDV court (integrated domestic violence), where the family law cases that have alleged elements of domestic violence are adjudicated.

Abuse comes in many forms – emotional, physical, sexual, and financial. Courts take abuse into consideration and use it as a factor in equitable distribution and spousal support, often increasing the amount of money an abused party will get. So, there is monetary compensation for it.

There is a case J.N v. T.N., in which the abuse was found to be so grave, the court awarded the abused party 85% of the marital assets. The case can be found here: https://law.justia.com/cases/new-york/other-courts/2022/2022-ny-slip-op-22310.html. See also, DRL Section 236(B)(5)(d)(14), which can be found here: https://www.nysenate.gov/legislation/laws/DOM/236.

Abuse is also an obvious factor in custody determinations, as logically, children should have measured and protected engagements with an abusive parent. Trouble comes, however, when one party exaggerates or fabricates allegations of abuse to gain monetary and custodial advantages. The irony being that such a party abuses the abuse claim as a punitive and self-enriching weapon.

For example, conjure the not uncommon case of a wife calling the police on her husband, purely as a child custody tactic. In doing so, she thinks she can get the upper hand by forcing the creation of a police record for her husband – all without thinking of the implications. The wife here is so blinded by her personal ambition of gaining full custody that she fails to see the bigger picture – that her husband would get fired if there was any hint of an abuse allegation in his private life. Whether or not the allegation was true, the allegation’s mere existence was a glaring indelible black mark against him. What she thought would help her in her custody case turned out to be a very silly move for the financials. Since her ex is now unemployed and virtually unemployable at the level of income he was making at a top bank, she is limited in the support she can get. Moreover, because the court felt her call to the police was disingenuous, she ended up being penalized on the custody front.

Everything done in divorce has a cost-benefit analysis. As highlighted above, when vindictive parties are too myopic in their strategy, they end up losing on multiple fronts.

One of the consequences of the victimhood claim is that it often keeps very unhappily married couples married.

I have seen many situations where a theme of the marriage is – “You are the reason for all my unhappiness and misery, and if we get divorced, I will make your life a living hell.”

The party being blamed chooses to stay in the marriage because they view this as a real threat. Despite their misery, it is a misery they know and have lived with for years, which to them, beats the unknown behemoth of misery their spouse vows to ascend on them if the parties divorce.

I often get postnuptial agreement inquiries from this category of married couples.

To learn more about how genuine and fabricated abuse allegations can impact a marriage and divorce, contact The Law & Mediation Offices of Cheryl Stein.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

Protecting Your Business Partners from Your Marital Fallout

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Most people are prepared to undergo intense scrutiny and background checks when entering into a business partnership or for consideration to high-level corporate and finance positions. 

It’s a common occurrence meant to unearth skeletons and expose red flags in your life. 

The business partners or corporation want to know how your problems may become their problems if you are onboarded and welcomed into their fold. 

Your prospective or current marriage may be one of the things they look at with discomfiting interest. 

There is ostensibly a good reason for this personal invasion of privacy. Divorce has the potential to shine a spotlight on your business interests and investments in what’s called “Discovery.”

Discovery is a mutual exchange of financial documentation during divorce. It includes all income, assets/investments, and debts. It is an exhaustive and time-consuming process meant to ensure that all cards are on the table and there is full transparency relating to the divorcing parties’ individual and collective finances. The intended endgame is a fair and equitable financial settlement agreement. 

The inevitable consequence is the required production of documentation relating to business interests and investments. This makes prospective business partners queasy as they typically don’t want confidential documentation relating to their business exposed in your divorce. 

To give you some examples, one of my divorcing clients had 3 business partners. It was a very successful hands-on business and all 4 of them were actively involved on a day-to-day basis. Typically, I meet with my clients alone and we loop in their accountant and other professionals when needed. In this instance, all 4 business partners insisted on being at all meetings relating to the business, its valuation, forensic accounting, and documentation that would be produced. My client’s wife was seeking a marital portion of the business (of which my client was a quarter owner). She was also trying to understand its income structure and claimed there had been downward manipulation of income in anticipation of divorce – a fallacious assertion, which we needed to refute. 

Another example is a frantic phone call I received from a new client. He was in Europe for a corporate meeting with his business partners. His wife called him during the meeting to tell him she was seeking an immediate divorce. His business partners overheard and became so concerned as to how they would be affected that they told him to call me immediately on speaker phone and explain to them the process of discovery, equitable distribution, and allocation of business interests under NY divorce law. 

Fortunately, there are preventative measures to cut such problems off at the pass, including prenuptial and postnuptial agreements. 

For prospective or current business owners a very popular prenuptial or postnuptial clause is making a business separate property, and moreover, barring discovery of the business. 

This clause is one I am strongly in favor of when I represent the business owner and one that I am strongly against when I represent the non-business owner. However, everything can be made possible for the right price. If it is used as a barter for something worthwhile I can get for my client, it is open for discussion. 

Negotiating any prenup or postnup involves a lot of listening and diplomacy because we are trying to foster a marriage and engender love, endearment, and a sense of fairness between the parties. It needs to work for both parties, not just one. 

However, prenups and postnups are also instruments where strong advocacy for one’s client is needed to ensure the client is protected.  

We need to walk a fine line and be careful how we tread and define terms. If we are too inflexible with our own client’s interests in complete disregard of the other party’s interests, it can backfire. 

For more information on prenuptial and postnuptial agreements and walking the fine line of negotiating your ideal terms, contact The Law & Mediation Offices of Cheryl Stein. 

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

Title Doesn’t Matter

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In marriage, title doesn’t matter. Titles to houses, cars, accounts and businesses can all get overridden by the statute and court system in a divorce.  

I often do consultations where people say things like, “I’m married, but we keep everything separate.” They operate under the assumption that, because each party has assets in their own name, it’s separate property under the law. They think that the default in a marriage tips to individual title, and that the only things that are jointly owned are whatever has been purchased jointly and/or is held in joint names – unfortunately for them, this is a gross misconception. 

Everything purchased during the marriage is presumptively marital property, regardless of title. The burden of proof is on the person who wants to prove otherwise. 

For example, someone might purchase a property in their separate name during marriage. However, title in their sole name doesn’t matter. The overriding presumption is that everything purchased after the date of marriage is marital property. 

Inheritance is, by definition, separate property. That said, if someone uses their inheritance money to purchase a property that they put in their separate name — and then they use money earned during the marriage to pay towards the equity and the principal on the mortgage — then that person has commingled and made a portion of that house marital property. 

Businesses are handled a bit differently. When it comes to businesses, the titled spouse does get a leg up, and the non-titled spouse is typically entitled to smaller percentages than other aspects of equitable distribution, such as accounts, that weigh in favor of 50/50 splits. Non-titled spouses typically get approximately 5% – 33% of the value of the business interest, and where they fall on the spectrum and whether the court would go outside of this most common range is based on the direct and indirect contributions each spouse has made to the business. Let’s say a husband has a contracting business in his exclusive name, as appears on the corporate and business documents, his wife is presumptively entitled to a portion of the business, even though she is a non-titled spouse. 

Prenuptial and postnuptial agreements offer a means to explicitly delineate personal separate property from joint marital property. Their flexibility allows us to go above and beyond what the law provides and create unique solutions that make sense for the situation. 

To learn more and appropriately protect your rights and interests, contact us.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com