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

It Ain’t Over ‘Til the Fat Lady Sings

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A basic tenet of “fight or flight” is that when people are in an extreme state of anxiety, they’ll do nearly anything to relieve that immediate pressure and discomfort to get themselves to a more bearable state. This describes what divorced people go through quite well. People crave resolution and a path forward. There’s this hope that when you finally enter an agreement, everyone will be able to breathe a sigh of relief

I don’t relish being a party pooper, but I always remind clients, “It’s not over ‘til the fat lady sings!” 

What does this mean in the context of divorce? It means that, if you have unemancipated children, you will likely be revisiting parts of your divorce agreement time and again as they grow older and unanticipated events occur, one of you wants to relocate, one of you loses a job and needs to modify child support and for a plethora of other reasons. Many divorced parents end up going back to court until their children are emancipated — and possibly afterwards if there are child support arrears. 

Sometimes, the divorce agreement is just the beginning of the legal battles. Unfortunately, this can be true even for prescient, well thought out and meticulously drafted agreements, but obviously in the latter instances, there is less exposure, so having a really solid tight-knit initial agreement in place, which leaves room for less loopholes, is key, albeit not bulletproof.  

Maintenance and spousal support are modifiable. Even if someone waives spousal support in their agreement, there is case law in which — 10 years after the agreement — one party was going to be a ward of the state and sued for maintenance. The judge ruled that maintenance had to be paid, which sounds perturbing and off-base, but the court will first look at the ex-spouse rather than let the other person be a ward of the state. Even if you try to waive support, or negotiate a certain amount, that is all modifiable. Notably, maintenance is harder to modify than child support, which has a much lower bar for modification, and includes the classic 3 bases: passage of 3 years; 15% increase or decrease in either party’s income; and a substantial change in circumstances. 

The permissibility of modification for custody holds true as well. You can have one party awarded custody because the other party was a total disaster at the time of divorce. The parent unfit at the time of the divorce can always come back later and say, “I rehabilitated myself. I need to be the joint custodial parent now” and proceed to demonstrate substantial changes in circumstances since the initial agreement and judgment of divorce were signed off on to prove their point and elevate their custodial standing.   

These requests to change custody agreements and modify child support and maintenance are very common and the post-judgment part in court is more backed up than the parts that handle the initial divorces. 

The same occurs with challenges and attempts to overturn prenuptial and postnuptial agreements. People often state that their prenup or postnup was signed under duress or coercion, or perhaps they didn’t have an attorney look at it and didn’t understand what they were signing. It is critical that attorneys who represent clients in these agreements strategize and have the necessary foresight to prevent such an eventual catastrophe to their client. 

Life circumstances change. People change their minds. Whatever reasons that they come up with, valid or invalid, people often want to get out of deals — and there’s nothing unusual about that.

To learn more about your specific circumstances, please contact us at cheryl@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

Divorcing an Addict

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I’ve had many situations where one party is an addict and the other party has to deal with the repercussions or where both parties are addicts but one is more functional. In several cases, the parties actually met at AA. I’ve represented the addict spouse, the non-addict spouse, and neutrally mediated many cases involving addiction.

Studies show that addicts don’t necessarily get better — instead it’s about containing or channeling the addiction. Oftentimes, for a multitude of reasons, the partners of addicts are willing to cut the other party some slack because they don’t want to throw in the towel on the marriage. Sometimes, a post-nuptial agreement is done instead of a separation or divorce, sometimes nothing is done.

When thinking of addiction, most people conjure images of alcohol, drugs, and smoking, but there are so many other forms of addiction that can have deleterious effects on relationships and marriage, like sex addiction, gambling, video games and screen time, and engaging in dangerous and high-risk sports and behavior to test one’s edge and get their adrenaline pumping towards making them feel more alive, or on the flip side, to numb themselves from feeling anything.

I have a case in which a woman was married to someone who is a sex addict. He spent the down payment for a new house on his addiction. Because they have three young children, the wife took a wait-and-see attitude. For his part, the husband went to a rehab facility and found 12-step meetings to attend afterward. Unfortunately, as time went on, it became clear that his addiction was a factor once more. While it did not affect his career, he was not able to juggle his addiction and his marriage. I represented the wife in the divorce getting her 75% of the parties’ assets in an equitable distribution relief package to compensate her for the money the husband dissipated on prostitutes, escorts, and his porn addiction.

Another common situation I’ve come across is when there is a combination of addiction and rather acute mental illness, such as bipolar disorder. This is especially relevant when there are changes to medication used to treat mental health issues, or the person simply stops taking their prescribed medications. These situations can change overnight, and often cause people to want an immediate divorce in order to protect the children, in addition to protecting assets, and their own mental health and sense of safety.

Gambling addiction is also widespread. A client’s husband recently revealed to her that he has $150,000 in gambling debt and a co-debt with someone else for over $50,000. She is obviously very concerned about her assets, which primarily consist of the marital home. One option for this couple would be a post-nuptial agreement, putting everything in the non-addict spouse’s name.

Within more religious and tight-knit communities, I’ve seen many miserably unhappily married people choose to stay married to an addict solely because they fear stigma. Often, they have children and are afraid that others will think the addiction is inherited. If people live in a community where addiction is a highly stigmatized black marker, they don’t want people to know, so they choose to “stick it out” in their marriage — a very loveless marriage for the sake of maintaining a facade.

Feel free to contact me if any of this resonates and you or your spouse struggle with an addiction.

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

When Your Spouse is on the Wrong Side of the Law

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People find themselves on the wrong side of the law for various reasons. They get in trouble with work, with business, with taxes, with government officials. So sometimes, divorce becomes necessary in order to disentangle and protect the family’s assets. Other times, it’s a matter of conscience.

I had a case where the husband had been put in jail because he had been stealing money from a fund that he was responsible for. Over the course of many years, he began taking money to subsidize his lifestyle with his wife. His wife made a good living, and he wanted to present that he was contributing towards the marriage as well. In truth, the wife didn’t know that much about the husband’s job, and she didn’t ask. He was a consultant, and they filed their taxes separately. 

The fund that the husband was responsible for eventually discovered his embezzlement. He ended up doing a stint in jail, and the wife stayed with him throughout this ordeal. The wife was not prosecuted or implicated in any way. This marriage did eventually disintegrate into divorce – the seed being planted with the husband’s criminal activity — but it took many years. 

In another instance where the husband was found guilty of embezzlement, the couple owned many joint assets together. They wanted to get a divorce in order to protect the wife’s share of the assets and transfer all the assets into her exclusive name, thereby protecting them. 

Sometimes, people trigger an investigation into their (ex-)spouse. For example, a wife may know that her husband used fuzzy math on his tax returns. They may stay married, and benefit from the questionable returns while they’re married. It’s only after the divorce — or during a very, very contentious divorce — that they will call the IRS. That is not only personally distasteful to me, it is also illogical to facilitate the imprisoning of your ex-spouse because then they cannot work and make support payments. Further, the children are deprived of a parent and have to deal with the emotional turmoil and stigma of an imprisoned parent.   

Finally, there are extreme scenarios of finding out your spouse committed a crime and got away with it. For example, finding out your spouse has affiliations with a supremacist or hate group, a terrorist organization, has stolen hundreds of thousands of dollars and gone undiscovered, and in the most extreme scenario, has committed rape or murder in their past and never got caught. These are not just scenarios that play out in mystery novels; while not run of the mill, these events happen and need to be handled delicately. 

There are ways to build up some armor and distinguish yourself from your law-breaking spouse. Post-nuptial agreements can address all kinds of different issues. If the marriage is in a more advanced stage of deterioration, you can pursue a separation agreement or divorce. Contact me at cheryl@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

Out Of Wedlock Children

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Having children out of wedlock used to be frowned upon for “moral” reasons, but nowadays it’s more about navigating the legal issues it often presents. Still, when a not-yet-divorced client tells me a baby is on the way with their new significant other, my response is “Congratulations!” Any life born is a blessing. 

I’ve had many cases over the years in which my client is the party that is married and has gotten another woman pregnant, but these cases can come in any permutation: 

•Two unmarried people who have a child together;

•A wife whose husband got another woman pregnant; 

•A wife who’s pregnant with another man’s child; 

•Religious divorces in the absence of corresponding civil divorces — and the myriad legal issues that can come about as a result of children born into these situations.  

I often have cases involving workplace romances or affairs, either open or clandestine relationships. Sometimes, the involved colleagues will refer to each other as their “work” husband and wife. A work husband and wife may be having an emotional affair while at work together, developing their own internal language, kibitzing with each other, making each other feel sexy and desirable, and providing each other with something that neither is getting from their marriage, while also providing a support system, stress release and distraction from work. It is very common. In one case, the work husband was a traditional husband with four children, when the emotional affair at work turned physical. The woman (“work wife”), who was single, ended up getting pregnant and sought an unrealistic child support arrangement, given that he had four other children to support, she was a high-income earner, and not necessarily the most sympathetic character. She wanted support from this colleague as if this was his only child, and as if he had an obligation to support the child at a highfalutin lifestyle, including tuition towards elite private schools and the promise of paid ivy league education in the future, completely ignoring the statutory caps and reality of his total obligations. He had the stronger case in taming and constraining any support obligations towards this colleague and their out of wedlock child. Whatever romance once existed faded into the background when their dissonance surrounding support surfaced. 

The law on these issues is not a fait accompli per se. It rests on the discretion of the judges. In this case, the court took the totality of the father’s circumstances into account and how much of his income had to go to his nuclear family before calculating the support for his out of wedlock child. 

Another issue that arises with out of wedlock children stems from what’s called Marital Presumption of Paternity. This means that a husband is presumed to be the legal parent, because he is married to the woman who had a child, and, therefore, he is obligated to support the child by default. This is true even if the husband is not the biological father. A husband can, technically, be on the hook for child support for an out of wedlock child, fathered by another man, if the child is born during the marriage. The courts in King County (Brooklyn) deal with this quite often. In the Jewish community, there are cases in which people first get divorced at their local religious institutions and proceed to get remarried to someone else religiously while they are still civilly married to their first spouse. A child born to a woman fathered by her second husband during this window of time between obtaining a religious and civil divorce is, technically, by law, considered the first husband’s child, so the court has to have a proceeding to properly establish the child’s paternity so that the first husband is not on the hook for child support. 

Many are also getting married much later nowadays. It is common to live together for many years, have children together, and only then get married. There are sage practices to put in place in accordance with the law and public policy to protect those in this situation. People are advised to seek counsel for any of the issues raised in this article. Contact me 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

When Children Are Treated Like Chattel in Divorce; Don’t Let Your Kids Get Lost in the Shuffle!

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As parents go through the pain of divorce, it can become a petty competition between spouses, and the children become the rope in an ugly, unfair tug-o-war. 

People going through divorce may get reduced to their own worst, most childlike state. They may project a lot of what’s happening to them onto the children. They may use the children as tools, using the kids as an excuse to justify what they want. 

Here’s a case in point. A mother wanted primary custody of the children. The arrangement she was asking for would actually deprive the father of a lot of parenting time. She claimed he was “out to lunch” when watching the kids, like they could set the house on fire and he would still be sitting there buried in his work.

This mother could have chosen to serve the summons when the kids were not at home. She could have kept it private, but she didn’t think it through, so she served her husband with divorce papers at breakfast in front of their children.

Astonished and angry, he started to engage the children, saying, “Look, Mommy’s trying to make me a homeless bum and kick me out. Who would you want to live with?” It became a round table breakfast discussion. These kids should never have been in that position! 

The wife had been considering divorce for at least a year. The husband didn’t want a divorce. He got served totally out of left field and was in a state of shock. It got quite intense and he became a little bit physically violent — when he had never been before. 

Later the wife kept using the incident as an example, “Isn’t he inappropriate that he was engaging the children and got violently angry?” She had completely lost sight of her own behavior, forgotten that she caused the entire horrible situation with her ill-considered timing. 

People in crisis forget and engage with their children as if they’re adults. They’re so wrapped up in their pain they can’t see that they are acting in immature and inappropriate ways.  

In another case, the husband was doing drugs, getting violent, drinking, coming home and, leaving again. The wife was in a lot of pain but kept saying she wanted to stay because of their child. In truth, she was just afraid. It would certainly be better for the child not to have such a volatile home life. The mother was projecting her emotions onto her child because she felt no sense of control in her life. Children are adaptable; the real issue was her feeling needlessly guilty about saying, “I don’t want this for myself.” 

Another danger is that sometimes when a person loses intimacy with their spouse, they may lean too heavily on their children for emotional support. They may start sleeping in the same bed as their child to avoid feeling alone. They may vent to their children because they don’t want to tell other people about the breakup. It starts to become not what a child and parent relationship should be. 

When a parent is trying to use the child to alleviate all of their feelings of emptiness and loneliness at the end of a marriage, it forces a child into a very difficult predicament. They will be profoundly confused, grow up too fast, or both. 

How Can These Destructive Behaviors Be Corrected? 

First, I have to make my clients see how they are behaving. I stop them in their tracks, while they’re telling me the story, to help the client be self-reflective and perceive their own behavior in order to modify it. 

My clients are flawed just as much as their spouses are flawed. I help them detach from their own issues and concentrate on getting the children through the transition. It often helps to have a child in neutral therapy with their very own counselor who can actively help guide the parents about their behavior. 

When divorcing parents can’t work together for their benefit, children get lost in the shuffle. In these families, the parents really need ways of breaking impasses and processing toxic emotions so they and their children can heal and move forward.

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

Beware Selling Clients the Brooklyn Bridge

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When parties first engage in the divorce process, they often do not know the law, how their situation looks from the outside, and how things unfold in court. Part of the attorney’s role may be to give the client a gentle wake-up call. Sometimes when you’re strategizing with them, they’re not sure what tools you may use to try and seal their case.

In part because clients aren’t always telling you the full stack and sharing all their skeletons, I would not tell a client that I could get them relief such as sole custody, 100% rights to a business formed during the marriage, a guarantee that the statutory cap will apply for maintenance and child support when the income exceeds the cap, or the ability to relocate with their children — all of which are big-ticket, multi-dimensional items of relief.

In sharing the personal details of their lives, clients are often vulnerable — opening themselves up to outsider’s judgment and/or disapproval of how they are managing their lives. Attorneys need to know the larger context and help the client see it too.

During a recent client intake, the client revealed that she wanted to not have to pay her husband a penny, even though she earned more than him, to get primary residential custody, and to carte blanche be able to relocate with the children domestically. The latter one, being the one she desired most was the biggest wild card in her case, carrying the greatest improbability.

Her argument that she could offer them a better life elsewhere (perhaps questionable in it of itself in light of them already having the garden, backyard, family nearby, good schools, and residing in a good neighborhood in New York) was overshadowed by the overarching question — Can you offer the children a better life elsewhere than the life of having a father regularly present in their lives who they’ve seen daily to date and have a good relationship with?

Another case presented a high performing husband and father who worked long hours in finance. He wanted custody of his children stating his wife was an alcoholic and good for nothing. When we dug deeper, we learned that he, in fact, drank more than she did, but in light of his high performance at work, he considered himself a highly functional drinker and avoided using the term alcoholic altogether to describe himself. It appeared his wife had unraveled some several years back after she was let go from a prestigious job and never managed to regain her footing after that, but his contempt for her undermined who she was now, which was a functional enough mother, perhaps sloppy at times, but still quite present and active.

A case in point on the support end was a father making over $600,000 for the 5 years preceding the divorce who was adamant that he would only pay the statutory caps for maintenance and support, stating that they were modest spenders and quite frugal. There was some truth to this, except that they lived in New York City, and that alone meant that their modest living would require payments above the caps to sustain the accustomed lifestyle.

There is also the controlling personality type who called the shots during the marriage with the other spouse going along. These clients often think they will be able to navigate the divorce in a way to continue to get their spouse to go along with them, except that their spouse, self-aware enough of their namby-pamby quality, typically hires an overly aggressive attorney to compensate, who pushes back at every turn.

We all get these laundry lists of desired reliefs. As a service provider, we work for the client and are their cheerleaders, but realistic ones, that don’t overpromise and underdeliver; this is a key element of being supportive and effective for the client.

Being a cogent advocate and mouthpiece for the client and helping them to see the full breadth of their situation’s appearance to an outsider when all the relevant factors are weighed are not mutually exclusive; they are part of the same overarching role.

Please contact The Law & Mediation Offices of Cheryl Stein with any related questions.

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

Will an Arbitration Clause Protect You?

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When clients come to me wanting a prenuptial or postnuptial agreement, they are typically the party initiating and driving the process because they have assets to protect and want to minimize or completely contain their exposure. These same clients also tend to be litigation averse and view the entire litigation arena as a threatening, menacing process that will invade their privacy, wear them down, diminish their wealth, and possibly compromise their integrity.

As a mediator/litigator, I am in favor of mediation-arbitration clauses for certain clients and this genre of clients fit the bill.

Because they have money and assets, these clients may be the ones responsible for their spouse’s attorneys’ fees during a divorce (under Domestic Relations Law Sections 237 and 238) and they may also be subjected to the rather taxing plight of having to pay numerous expert’s hefty retainer fees to assess their many assets.

Conversely, when clients come in wanting me to be their review attorney for an agreement that has been drafted and prepared by their significant other, they are typically the party with less, who may benefit more from having the court-litigation card to pull out and not cornering themselves into a mandatory resolution through mediation and/or arbitration. On the one hand, I’d be woe to call it the litigation trump card; but essentially, that’s what it is.

Because they have less, they often end up being more dependent on their partner and may need additional oversight, so you want to ensure that their agreement will not bar them from seeking judicial intervention should it be necessary.

What exactly is arbitration and will it offer the first category of clients the protection they seek?

Mediation is a completely voluntary process and non-binding, whereas arbitration is binding. This means that if arbitration is written into the agreement, both parties must participate and submit to the arbitrator. Agreements that contain arbitration clauses usually state that the parties will first try to resolve their case through mediation, and if that is unsuccessful then they will submit to arbitration. Best practice is to include a mechanism for selecting a mutually agreed upon arbitrator so the parties are not left in a situation where they have to attend arbitration and cannot agree on an arbitrator.

Unlike litigation, arbitration decisions are not published. Because it is a more private process, many of the arbitrators are retired judges, and the arbitration meetings take place in comfortable offices, as opposed to courtrooms with court officers and a more authoritative, bureaucratic, and austere milieu. The arbitrator’s decision is also not the final step in the process.

The arbitrator’s decision is also not the final step in the process. Each arbitration decision needs to be signed off on by a judge and formalized by the court. As parens patriae (legal protector of citizens unable to protect themselves, such as unemancipated children), the court also has the ultimate decision-making authority with regards to custody and visitation issues.

There are notable differences between the courts.

The first department (New York County, namely Manhattan, is in the first department), will uphold an arbitrator’s decision, including custody and visitation issues — being that they believe that because a judge ultimately signs off on it, the parens patriae principle is actualized.

The second department (Kings County, namely Brooklyn, is in the second department) will not necessarily uphold an arbitrator’s decision with regards to custody and visitation issues.

New York and Kings counties are my backyard, so I’ve highlighted them to point out the differences between the court’s viewpoints regarding arbitration. These discrepancies carry over into other counties and judicial departments as well, which is why it’s important for clients to have realistic expectations regarding the enforceability of an arbitrator’s decision, particularly if they are planning to include an arbitration clause in their agreements.

While a prenuptial agreement cannot address parenting issues, such as custody and child support, it can state that the parties agree to submit to arbitration to resolve all issues in their divorce. Based on the above discrepancies between the judicial departments, if the parties have a prenuptial agreement with such an arbitration clause and they have children and live in New York County at the time of a divorce, this would mean the arbitrator can determine the custody and parenting issues, it would be binding, and the court just rubber stamps the arbitrator’s decision. However, if the parties live in Kings County at the time of the divorce, they cannot be assured the judge will uphold the arbitrator’s decision on parenting issues.

The relief and clarity for those who want to include an arbitration clause in their agreements is that while they cannot guarantee it will render the arbitrator’s parenting-related decisions enforceable, the courts across the board uphold the arbitrators’ financial-related decisions, including equitable distribution, maintenance/spousal support, and child support.

I recently had a case where opposing counsel initially objected to including an arbitration clause, which was important to my client, because she did not know the law and whether it was enforceable.

Knowledge is power and when I sent opposing counsel the law indicating the degrees and nuances of its enforceability, she acquiesced on the point and my client was relieved knowing that the financial matters, which are most important to him will be resolved through arbitration and not litigation, which he fiercely opposes. He also felt assured knowing that if they reside in New York County with their children at the time of a divorce, even the arbitrator’s custody-related decision will be upheld.

Educate both clients and opposing counsel, when warranted, of all the potential issues and limitations that could come up when they want to include mediation-arbitration clauses or straight up arbitration clauses in their agreements.

Feel free to contact me if you are considering an arbitration clause in your agreement.

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

Are You an Innocent Spouse?

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One of the benefits of marriage is being able to file joint tax returns with a spouse. However, marriage brings a double-edged sword. On the one hand, spouses reap the benefit of being able to collectively have more money to live on if they’re drawing from the same pool during their marriage and maximizing their tax benefits. The downside, though, is when the spouse with no knowledge of marital finances signs off on tax returns and it later comes to bite them. Often the spouse in control of the finances just tells the other person to sign, because they’ve waited until the 11th hour to file, and have no time for explanations or mincing meat.

Every now and again, a spouse will even sign the other spouse’s signature, which often comes out during the divorce. I’ve had a few clients over the years that said their spouse signed for them, but when I’ve dug deeper, that client has told their spouse to sign for them if they ever needed to.  

In one classic situation, the wife asked for child support and claimed that her husband made $600,000, but the joint tax return showed that collectively they made $180,000. In this case, the husband said that she signed to that amount and should be held to it for child support calculations, thereby imposing a significantly lower child support obligation on him. The wife claimed that she didn’t know what she was signing. She simply believed and acceded to him. Of course, assuming the wife knows basic math, she would know she was living on $600,000, rather than $180,000.

I recently worked on a divorce case, where the wife signed an addendum to the couple’s prenuptial agreement, executed many years ago, that gave the husband carte blanche discretion and authorization with regards to filing their joint tax returns; akin to a power of attorney relating to their taxes. This is an extremely bright and savvy woman — starry eyed in love, in her youth, with who she thought was an incredibly charming millionaire; her romantic notions and desire to be taken care of created thick naïve glasses through which the reality was obscured, and she trusted him wholeheartedly. Years later, his macho charade started to unravel, and IRS letters claiming tax evasion and liabilities exceeding 15 million dollars started to pour in. After her initial shock and numbness, she ran for cover under the safety haven of “innocent spouse relief.” See IRS Publication 971 and IRS Form 8857 (Publication 971;  Form 8857.pdf).

In these case, I’ve looped in accountants, tax lawyers and forensic experts, if needed, to provide the necessary perspective, releases, and maximize the relief to the client. It becomes very interdisciplinary, and a team of professionals who work well together and communicate fluidly, efficiently, and effectively, while also communally keeping an eye on the client’s pocketbook and spending is key.

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

Equality Schmality

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Men often voice that they feel they get the raw end of the stick during divorce, without a larger understanding of their situation.

Generally, women are perceived as victims and sympathetic characters in divorce, both in the monetary and parenting realms.

People often ask me if I am a female-or male-oriented attorney and which sex I predominantly represent. I represent both equally, and each case is fact specific. At any given moment, I represent mirror image situations-for example, a female client who would like to impose that her ex keep to a very time specific visitation schedule, and a male client lamenting that his wife is overly rigid in demanding that his visitation must take place within very precise time frames.  

Arguably, men are often still considered second fiddle when it comes to parenting, even though there is a whole movement underway in the direction of 50/50 parenting, often titled “50/50 is the new default,” as in a 50/50 joint physical and residential custody arrangement.

When actions are commenced, typically it is the husband who moves out and the wife who remains in the marital residence with the children. Men often have a hard time with the idea of leaving the house and no longer sleeping under the same roof as their children every night. Something they took for granted is suddenly gone.  

There is still the general presumption that women are the natural caretakers. Men often have to fight hard to obtain a more liberal access schedule. They often verbalize finding it offensive that they suddenly have to “visit” with their children during prescribed hours. (Euphemisms have been contrived, such as “parenting time” and “access schedule,” but it doesn’t change the underlying concept.) The emotional trauma that many men experience when this happens is not spoken about. Men are expected to “man up” about things, while women are more touchy-feely, often attending support groups or leaning on their immediate social circle.  

In a more traditional situation, such as with a stay-at-home mom, or if the woman is a teacher, of course maintenance is going to be paid, of course the woman is going to be the primary caretaker. But when it’s the reverse and the man is the one that stays home caring for the children or is a teacher, there’s a presumption that something must be wrong with him. Why isn’t he in a more manly profession?  

When the woman is the higher income earner, the man often feels pressured to give up maintenance or to reduce the amount that he takes. It’s almost expected that the man should come up with faster ways to make money or simply not leech off his wife. In the reverse situation, the pressure would be less, because it’s expected that women leave the workforce when they have children to care for. This dynamic is often most evident in mediation when both parties are in the room together, openly expressing their viewpoints.

An additional noteworthy point is domestic violence and abuse towards men.

Domestic violence towards women is a well-known phenomenon, but we hear little about domestic violence towards men, and not because it isn’t pervasive. It is, in fact, quite commonplace, as many divorce attorneys can tell you.

I have seen situations where men, who are 6’2” and over 200 pounds, are the victims of physical and emotional abuse by their 5’4″ wives. These men may be in high-power positions, dominating during business meetings, but tell me they’re terrified to go home to their wives. This issue is not spoken about and very little sympathy goes towards men. They’re expected to suppress their feelings and don’t really have any forums to talk about or deal with it. A lot of these men feel they can’t reveal what’s going on in their lives because of their high-powered professional positions; for all intents and purposes, they have everything together.

It is not a pity party competition between the sexes-rather an observation. Many of my male clients have expressed that they wish there were more resources available to them, while they are going through separation and divorce, to help them through the process. I have a long list of support groups to dispense to my female clients and often think I need to get all my male clients together to create their own support group, because they are so hard to come by.   

Contact The Law & Mediation Offices of Cheryl Stein with any questions if you are preparing for or going through a separation or divorce.

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

Adult Children of Gray Divorce

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There is a large demographic getting a lot of air time right now – those over 50 who are choosing to get divorced. Oftentimes, these couples have been married for many years, and now their youngest is about to go to college or move out of the house. Many of the couples in these “gray divorces” have successful and flourishing adult children, who escaped being in the midst of a contentious divorce or custody battle while they were growing up, only to find themselves in the middle of their parent’s divorce now.

Often the adult children are very involved in the divorce and will help their parents find counsel. Sometimes, the children will pay the attorney’s fees. On the surface, the children may have a camaraderie with both of their parents, but underneath they are often more aligned with one parent over the other and feel justice should be brought because of their observations over the years.

If English is a second language, children often serve as interpreters and assist their parents with the more technical tasks and documents, such as filling out the statement of net worth. They often ask to correspond with the attorney, and it is essential that appropriate authorizations and waivers are in place to enable such communications.

In some situations, adult children have one parent move in with them until the divorce settles. This can create tension and complications if the adult child is married, and his/her spouse is not on board and feels the adult child’s support of his/her divorcing parent is usurping too much time from their marriage and family.

Some adult children go as far as to play Scooby Doo – investigating if they feel one parent is hiding something. In other situations, highly educated and employed adult children may still live with their divorcing parents and are helping pay the household expenses. These children’s own finances are somewhat intertwined with their parent’s, and they have a vested interest in the outcome.

Much like elder care planning, in which children are heavily involved, these children feel that helping their parents, especially the more vulnerable, dependent parent, is imperative to their parent’s future planning and sustainability. The adult child also recognizes that he/she will have to take care of a parent and plug in the gaps where that parent’s needs are not met in a divorce.   

These adult children walk a tightrope and try to be careful not to do anything to imperil their relationship with either parent outright. Despite their maturity, success, and adulthood, they are often emotionally affected. They have to deal with the fact that the family unit they grew up with is disintegrating. These adult children often act as a friend and emotional support system to their parents, which is why we advise them to protect themselves and to avoid jeopardizing their own accomplishments and/or marriage in the process of supporting their parents.

If you’re contemplating divorce or are the adult child of a gray 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

How Enforceable Is Your Divorce Agreement?

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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?

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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

How to Avoid Knee-Jerk Responses

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Quite often during a divorce when the wife wants sole custody of the children, she will go so far as to completely mitigate what the father does. Sometimes, women who exert this behavior are stuck in their situation—mired in bitterness and the feeling that somehow they’ve been wronged. To her, the husband does nothing. When I ask more detailed questions and parse out the facts, I’ll find out that he does things like make the kids’ breakfast every morning and take them to school. That is not called doing nothing!

The wife will say she doesn’t care about child support so long as it means he will be out of her life. This is a perfect example of a client making overly dramatic, large-brushstroke statements in the beginning. This quickly changes when the numbers get crunched.

For example, one client initially told me she would accept significantly less in basic child support than the Child Support Standards Act dictates. She would also agree for her husband to contribute a lot less than his pro-rata share towards add-ons such as the children’s:

•uncovered medical expenses;
•child care; and
•extra-curricular activities.

Her hope was to make the settlement offer so attractive to him that he would agree to sign. In exchange, he would relinquish custody to her and she would get him out of her life as far and as fast as possible. He was not particularly a bad guy, and the parties even had a fairly decent rapport; she just did not like living in the “neither here nor there” in-between zone of divorce. She wanted resolution and closure to move on.

Over the next few days, she began doing her homework, crunching numbers and calculating how much she would need towards her children’s child care alone in subsequent years, and realized there was no way in the world she could shoulder it alone. She looked at her daughter’s smile at dinner one night, and all she saw were big, disproportionate buck teeth. She realized her kid would need braces, and that she would need help paying for that as well. With that, my client landed back on planet earth and out of the window flew her ideas about proposals that were unrealistic for her.

Knee-jerk emails often flood my inbox in the wee hours of the night when the kids are sleeping and clients don’t have the day’s activities to distract them—the anxieties surrounding their divorce and future envelop them. By the morning, they see the light and have often come up with their own solution. When a client is going through a catastrophe, they are overly sensitive to everything in the moment. My replies have to be carefully calibrated to help diffuse the immediate stressor.

I often tell my mediation clients that I am the facilitator: They have to reach their own agreement; ultimately, they both have to live with it. During the divorce, these couples are still quite familiar with the other person’s lifestyle. They are oftentimes the most equipped to come up with their own solutions.

I similarly remind my litigation clients that the agreement has to be palatable to them. They will usually be living with the consequences for many years to come. They need to prudently weigh and consider the agreement and not sign in haste and desperation.

Contact me today with questions or comments.

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