Required Reading for Involved Grandparents

/in , , , , , /by

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

/in , , , /by

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

Rumbles Before the Quake

/in , , /by

The ground gives off a lot of clues before an earthquake — and so do people.

We often hear that someone is “going through a midlife crisis.” It can happen in a way where the person is happy, sad, or in between. A red sports car may be involved, or it may be a new model train hobby. When the person is married, the crisis ends up spreading out to affect the people around them.

In most cases, however, there has usually been some sort of shift taking place within that person that set the stage for a midlife crisis. From society’s changing attitudes to cell biology, here are three factors that I frequently see:

•Menopause: A classic example is a woman going through menopause. Many women will tell you that they felt absolutely crazy for five years. Their body stops being able to regulate itself, and then, all of a sudden, they start thinking differently and feeling differently about themselves and their whole life. Menopause “survivors” say that they had become a different person through those years.

•Mental Illness & Substance Abuse: It is not uncommon for very high-functioning people to struggle with a chronic mental illness or substance abuse problems. As they approach midlife, something happens that throws them off balance where they are no longer able to control their illness, even within the parameters that have always kept them high functioning. Of course, Covid has been working non-stop to add stress to people’s lives, which may result in relapses when there otherwise might not have been.

“Cougars” & “Hot Dads”: As society has suddenly begun to admire women and men past the age of 40, the denizens of that age group are taking notice. Men, especially, seem eager to test out the extent of their attractiveness on younger associates at work. Things like personal trainers, plastic surgery, and body contouring become a priority. This effect may also be partially responsible for the rise in divorce among people in their 40s and 50s.

Eventually, for these people, something happens where they are no longer even within the sphere of normalcy. The checks and balances they had made in their lives are no longer working, and they begin to act in ways they never had before. Either they will ask for a divorce, or their spouse will. If you ask their spouses what happened, they will often say that the person who had the midlife crisis was a workaholic with a successful career — and a substance abuse problem.

Thankfully, the 1950s are dead and buried, much like the notion of staying in an unhappy marriage. That said, divorce can still be a long and painful shift, and escaping an abusive home is still fraught with dangerous obstacles.

Contact us for more information.

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 Ex Is Blabbing About You…Ruining Your Reputation

/in , , /by

The idea of people speaking negatively about us is a huge source of shame for many. We all want to exist in the world thinking that we are well thought of, or at least neutrally thought of. Whether the negative thing is true or not, it’s obviously really unsettling. 

One of the unique aspects of a marital relationship is that each spouse knows things about the other that no one else does. When vulnerabilities that are exposed in the times of greatest intimacy and closeness are used against someone, they may feel a loss of the trust that created the whole reason for marriage.

Unfortunately, divorce is problematic in its own way. It often gets used as a bombshell when talking to neighbors, and this can create feelings of tremendous isolation for the other person. I’ve seen people go to bed one night with a whole network of friends, and wake up blocked by all of them, across multiple platforms. 

Sometimes, mutual friends can actually be great facilitators during the process of mediating a divorce, as a sort of in-between. Other times, friends are caught in the middle and used as sounding boards to air out the negative feelings of whichever spouse they are with at the moment. 

One thing that few people realize is that when your ex bad-mouths you, they often reveal their own negative character traits instead of yours. Within the work environment, the gossiper is the one that is most at risk, because nobody really wants to hear that often sensationalized, quasi-true, shameful anecdote about their co-worker’s ex, especially if they are a substantive person themselves; it makes us cringe. Moreover, at work, superiors start to think their blabbermouth divorcing underling is using time and energy they should be channeling into their job to conduct glorified group therapy sessions, and consequently, they start scrutinizing their job performance more. I often say, “Chances are it’s more negatively impacting your spouse that they’re blabbing about you than it’s affecting you.”

That said, people are often still blocked from their regular friends and support systems. Across the board, I have seen people experience trouble functioning in the midst of a mass ghosting led by their soon-to-be ex-spouse. 

Ultimately, the larger world is full of people who do have an element of common sense. If they feel they know you, and have a decent rapport with you, most people will be able to navigate the gossip. 

In my next post, I’ll talk about the measures you can take, like confidentiality and NDA clauses, to protect yourself in an 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

When Filing For Divorce Triggers a Reconciliation: Changing Your Mind About Divorce

/in , /by

When clients come to me in the beginning, they often do not know the state of their marriage. On a number of occasions, this has led to both parties signing an executed divorce agreement and, after I’ve filed it, call me to withdraw the papers and to stop the action before the judge signs it. 

There’s nothing new about people changing their minds at the last minute. In fact, one of the perennial questions I field is something to the effect of, “How often do you see clients who choose to stay together?” I think this is an important topic because sometimes people really want to try to see if — maybe — they could stay together. The internal idealist in some holds out hope despite all odds; for others, it’s their inner pragmatist.  

•Many times, the spouse who initiated the divorce gets cold feet. Instead of serving papers, they opt to work on the marriage. 

•Sometimes the reconciliation happens after a frank assessment of the marital assets reveals that one (or neither) party would be in a good position after divorce and the parties are driven by practicality to stay together. 

•The couple might really pride themselves on being good parents and doing the best they can for their children. They think that being divorced would be terrible for the kids, so they just “stick it out.”

•Some people identify with the saying, “Better the enemy you know than the enemy you don’t know.” Home life might not be ideal, but they’ve carved out semi-independent lives under the marriage that make staying together less stressful than a divorce.  

•Sometimes people get intimidated by the dating scene and become afraid that they’ll never find somebody new. 

Every now and again, there’s a situation where parties are able to work through these situations and actually end up with a better marriage. More often than that, however, I end up getting a call in two or three years to finalize the divorce we previously discussed. I think it’s a healthy thing to do, because divorce is a journey for each person. When they come back the second time, they are unequivocally one thousand percent sure they want to proceed, and in that respect, they are completely at peace with it. 

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

/in , , , /by

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

/in , , , , /by

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

Empowerment Is the Best Deal

/in , /by

In our last post, we discussed the fallout that happens when a husband is accused of sexual harassment in the workplace. I had another interesting situation where my unmarried client was having an affair — for 15 years — with a married man from work without knowing he was married because he hid it well while living a double life. 

He represented himself to be single from the get-go and the work romance got serious. He even presented fabricated divorce papers to my client to prove his alleged divorce. My client, blissfully ignorant to divorce-decree fraud, believed him. She admits to noticing red flags along the way, but she ignored them because of the “divorce papers” she saw. 

The 15-year lie came to an end when my client discovered this man’s deception and immediately broke off the affair. She was worried because she enjoyed a very high position in her company and was unsure whether her supervisors would want to know or would prefer to stay in the dark about the unethical behavior within their matrix. However, she also didn’t want this to happen to anyone else. 

My client had read about this exact scenario and none of the stories ended well. She had to go through the expense of hiring an employment law attorney to make sure that she was protected once she came out about the affair and deception to her employer. 

The man was also in a very leading position within the company. There were younger women under his watch, who were less sophisticated than my client, and she wanted to make sure he didn’t victimize them. 

This story is important because events at the workplace, like sexual harassment, have ramifications in the setting of divorce. If the perpetrator is fired, the equation for child and spousal support will be impacted. That’s why it’s important to contact an attorney as soon as you sense a “Me, Too” situation developing in your marriage. 

Speaking up early will allow you the time to divorce accordingly and to make sure you get the best deal for yourself. This speaks to the perpetrator’s wife — once she learned about her husband’s indiscretions and double life, she needed to lawyer-up. 

There was a whole web of attorneys involved to represent both women — my client who was having the affair and the perpetrator’s wife, including matrimonial, employment, ethics, and social media attorneys, to contain the damage. 

The two women got to know each other, felt a connection in being blind-sided and duped by the same person, and worked to mutually help each other. 

It is often disheartening to the spouses of perpetrators that they fell in love with someone like that. They start to see themselves as victims as well and join in on the “Me, Too” chorus. 

My client worked hard to help herself and the perpetrator’s wife out of the unseemly situation, and in so doing, she also protected other potential “Me, Too” victims.

That’s why there’s an empowering and strengthening stage that I do with my clients as we lay the groundwork and advance their case. Inner peace and enlightenment aside, getting a good deal is the ultimate source of empowerment. 

Feel free to contact me with any 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

“Me, Too” Divorces: A Case Study

/in , , /by

Whenever we hear about a case of sexual harassment in the news, there is often a divorce happening in the background. The divorce part is just not the centerpiece of the story. I’ve had several situations where the wife’s husband was accused of sexual harassment at the office, and it became a major consideration in our strategy. 

For example, I had a case where the husband was a charming, easy-to-love guy. The wife was successful in her own right, and he pulled out all the stops for her. She ended up relocating for him — and a few years later he was asked to resign from his job due to multiple sexual harassment claims.

He ended up going from a high salary to $30,000 a year scraping together various consulting gigs. The wife went from being the less-monied spouse to being the monied spouse. When the marriage broke down, having a financially ruined husband became an urgent problem. His reputation had been tarnished within his industry so much that it was unlikely he would ever get another high-paying position. 

My client abhorred the idea of paying support to someone whose career came crashing down because of his own actions. Despite what was morally right, it appeared that the black and white letter of the law was on the husband’s side. According to the statutory maintenance guideline calculations, my client would have had to pay a sizable maintenance to him. The wayward husband’s attorney requested this relief to shake up my client and put her on the defense; he picked up on my client’s (understandable) particular revulsion to paying support — and liked to bring it up to unnerve her. He requested the relief in his pleadings, audaciously filed a motion for support, and sent barrages of correspondences on the subject. 

Despite the guidelines, I advised my client that the judge would not rule in the husband’s favor.

That’s because judges look at the “whole package” and exercise several factors afforded to them to deviate from the statute as they deem fit towards a fair and judicious outcome. I expected the judge would be sympathetic to my client because her story was so indicative of the moral character of the husband. Ultimately, we prevailed, obtaining a judgment that freed my client and that she felt great peace about. 

One of the judges I’ve admired in my career always emphasized the importance of providing a “whole picture” to the judge. The relevant laws allow for a degree of discretion to the judges, which makes it possible to do things like bypass spousal support guidelines in the interest of fairness. In this case, the whole picture showed a cloud of bad behavior that obscured the one issue that seemed in the husband’s favor. 

As ludicrous as it might sound for a wife in this instance to have to pay her husband support, it’s not so simple, for example, the courts typically prefer that a former spouse pay support than that the befallen spouse become a ward on the state. Further, as mentioned, the statutory notice of guideline maintenance, in its most literal form, favors the husband, and seeking maintenance is also often used as a strategic scare and intimidation tactic of the husband’s legal counsel to get the wife to settle on other terms, such as equitable distribution.  

Join me next time when I discuss another “Me, Too” divorce, and feel free to send me your story to cheryl@cherylsteinesq.com.

Until next time…… 

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 Gay

/in , , /by

Most people who find out their spouse is gay think they’re facing a unique situation — but, realistically speaking, there are a lot of LGBT+ people who have gone the traditional way of marriage and starting families. Many of them are near retirement age and got married when the world was a less tolerant place. 

While each situation is different, in my practice, divorces where one spouse is gay tend to be more amicable as an overall generalization, with there being some highly contentious ones every now and again. There’s oftentimes already a deep attachment and an understanding in place that they were never going to have a conventional marriage. They created a different kind of life together, and now they have to untangle it. 

That mutual respect is why so many couples like this are more inclined to mediate their divorces. In many of my cases, the person who is not gay is attached to the one that is, and the person that is gay usually does not want to be harsh. I have also had experiences where the couple tries initially to mediate, or resolve the situation amicably, and they end up litigating. That can happen for a number of reasons, including the non-adversarial setting of mediation, which has been known to make financial manipulation more likely to occur. 

Within the various religions, one party being gay may present seemingly unsolvable problems in a divorce. Oftentimes, religions bring with them a culture that involves every member of a multi-generational family. Some religious communities have their own systems of dealing with marriages and divorces. Information that is private in the secular world is everyone’s business in small communities. Because of that, couples may work out an agreement in which they are divorced in everything but name — unless the parties are completely willing to be open and potentially jeopardize some of the relationships with their family members, including parents, siblings, uncles still moored in more traditional and less accepting dogmas.

In many of these cases, the non-gay spouse did have suspicions over the years that their spouse might be gay. A lot of times, it was chalked up to depression, the gay spouse exhibiting behaviors such as being withdrawn, detached, and lack of interest in sexual encounters with their spouse. The reality is the gay spouse is often depressed if they feel trapped in a marriage with someone of the “wrong” sex who they lack sexual interest in and are often conflicted about how to handle their situation — do they stay out of a sense of loyalty to their family or do they go out of a sense of loyalty to their true innate nature. So, for many, getting that divorce is important to their continuing mental health.

To get started, contact me.

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

Who Is Your Judge?

/in , , /by

A good lawyer knows the law, and a great lawyer knows their judge. 

In matrimonial and family law, there are no jury trials. The judge is the audience; the one and only who needs to be persuaded. Like the rest of us, that judge is human and may get up on the wrong side of the bed on different days, making what might seem like inconsistent rulings. This can feel arbitrary to divorcing parties on the receiving end, who are already being doled generous helpings of uncertainty in the shifting landscape of their lives. 

Purportedly, the judge only wants to get at the truth — to make the best decision for all sides based on the facts. “Purportedly” being the appropriate word here with so much controversy often surrounding individual judge’s motives, styles, and decisions by various constituents of the peanut gallery comprised of the matrimonial law professional inbreeds, such as attorneys, other members of the bar, and divorcing parties passing through the system. 

Be clear, precise and tell the judge exactly what you want upfront. This is not a game of manipulation or reverse psychology, where you say one thing but really mean and want the opposite. Intertwine your specific story with the relevant case law. It’s especially helpful to come armed with recent decisions that that particular judge made on a similar case. If you find yourself being long-winded with a judge, you’re probably losing them. 

Have you ever heard the expression, “Too much story!” That person that may or may not have interesting and poignant anecdotes to share, you’d never know, because, by the time they get to the point and deliver the punchline, they’ve lost you in a sea of extraneous words. Rule number 1, when in front of your judge, don’t be that person. Don’t confuse this with avoiding telling your story altogether. One of the most influential members of the NY Bar used to tell attorneys time and again, “I need to hear the story; that is what family law is; tell me this family’s story.” Your task becomes being an adroit and effective story-teller, conveying the relevant facts and circumstances. 

As important as it is to know your judge and how the presentation of your case will resonate with them, your entire strategy cannot hinge on playing to one judge’s likes and dislikes. Judges often change and swap out cases. For example, your attorney might be catering to one particular judge, and then when it comes time to do the support, the judge says, “I’m sending this down to a magistrate to decide.” Hopefully, your attorney had not been putting all of their eggs in that one basket. 

The case has to be solid enough to present in front of any judge. To that end, it’s important to keep a very clear paper trail and track record of what’s going on, so that a potential new judge will be able to pick up the case seamlessly.

Sometimes more than one judge works on a case at the same time. A divorce case that involves Child Protective Services may be adjudicated in both Family Court and Supreme Court. Oftentimes cases like these will get condensed to avoid the left hand from not knowing what the right hand is doing. 

Another factor that most attorneys look at is where the judge is in their career. They might have developed different leanings based on what their own immediate responsibilities are, what their culture is, what their peers have been doing, and what institutions they’re involved with at the time.

The attorney you hire should be flexible, able to adapt within their strategy very quickly when they’re building a case; even though they are doing their due diligence to tailor the case to your judge, they really have to create a consistently irrefutable fact set.

Along the same lines as knowing your judge is knowing your courthouse. I sometimes get calls from people in Westchester or Upstate New York, for example. I advise them that a Westchester litigation case is, most often, best represented by a Westchester attorney who has spent significant time in the county courts. You want an attorney whom the judges are very familiar with and are certain will keep to their word because of their prior experiences working together.

Sometimes people don’t have all the information they need, or they’re only listening to a certain version of the narrative that is skewed — often referred to as, “living in a bubble.” They don’t necessarily have information presented to them in an unbiased way in order to make decisions based on logic. 

We see with political discussions that neighbors and friends can look at the same set of facts and come to viewpoints that are polar opposites of each other. We just had a presidential election, and with how divided the country was, this couldn’t have been more clear. Similarly, this happens all the time in divorce. People look at the exact same fact set and arrive at completely different conclusions. It’s only by understanding this inherent reality that attorneys can offer a truly holistic representation for their divorcing clients. For more information on telling the story of your divorce, backing it up with unbiased, concrete facts, and interlacing it with recent case law trends — contact me. 

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 Best Revenge Is Living Well

/in , , , /by

Recently the country has witnessed the difference between demanding justice and demanding revenge. The lens of 2020 made it clear that they are two distinct things that may overlap in places, but differ in fundamental ways. The toll wrought by the desire for revenge was far more destructive than anyone seeking justice through peaceful protests. 

Divorcing people are all too familiar with the murky, gray area where justice and revenge overlap. All too often the initial desire for justice transforms into a yearning for revenge for one or both spouses. Maybe one spouse looks like they’re really enjoying life and it just rubs the other spouse the wrong way. What’s worse, anxiety — in no short supply nowadays — amplifies every other negative emotion and inches us ever closer to the edge. 

I happen to be working on a case in which the mother made it very clear that she wants a 60/40 split on custody. The father wants a 50/50 arrangement, but the mother held firm. There was no monetary benefit attached to the 60/40 arrangement; the mother would receive the same support package either way. As it turns out, life just unfolded in a way where the father was getting the 50/50 split he initially desired. Then, out of some kind of desire for revenge, the mother started to alienate the youngest child — who is the most vulnerable and malleable. This is incredibly unhealthy, and none of the members of this family can be said to be thriving. 

Sometimes the revenge dynamic takes on a more competitive quality. One spouse might look at the other and, based on something like their spending, feel left out of an apparently amazing life. It may look like the other is spending a fortune on what seem to be luxuries, like going for massages or buying an expensive humidor. (Meanwhile, neither one of them has reined in their spending!) 

A much more simple way to get revenge is to live well and enjoy your life. The idea of living well encompasses more than just meeting the marital standard of living. It is forward-looking, previewing what you need to live well in the future. That includes physical, emotional, and spiritual well-being.

Even though support packages are based on the standard of living during the marriage — in other words, hindsight — a lot of what we seek in support packages or equitable distribution has to do with projection into the future. Traditional “wisdom” says the best projection of the future is the past, but in a divorce, you may be doing things you’ve never done before, so the past isn’t much of a guide.

As an attorney, it is my duty to make sure a client never settles a case with terms they later regret. Invariably that leads to a feeling of betrayal, creating an environment for things like vengeance to flourish. And what the vengeful person does not release on their spouse, they release on the rest of the world.

Realistically speaking, the best revenge is getting the best deal. To ultimately live the best life, and create a support system that includes everything that you need to bolster and support yourself — whether it’s therapy, job training, education, or a new wardrobe for presenting yourself to the world. 

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 Asks You to Move Out — Breaking the Seal on the Marital Home

/in , , , /by

As the pandemic stretches on, I’ve been doing a lot of early terminations of residential leases as part of divorces. It seems that some people who were “hanging in there” with their spouse are starting to reach the end of their rope. Perhaps these marriages would have lasted longer, but the pandemic moved up the expiration date on everything.

Many clients just don’t know what to do or how to answer when they are asked to move out. My first response to them is always, “Well, tell them they should move out. If they feel that the two of you shouldn’t be together, shouldn’t you be the one who gets to stay?”

That’s because moving out of the marital home is a big deal. The person who moves out loses a lot of power just by not being there — especially on day-to-day child care issues. That is why it is imperative to seek out an attorney to help you with a formalized move-out letter, and preferably, a parenting agreement before you agree to anything.

A formalized move-out letter most often states:

•it was a mutual decision that one of you should move out;
•thoughtful consideration was given to who that should be;
•the person who is moving out has the right to move back in at any time;
•the person who is moving out is not abandoning any of their rights; and
•the move has no bearing on equitable distribution, maintenance, custody, and visitation.

That document is signed and notarized by both parties. In an ideal situation, you also would have pulled together a parenting agreement to be incorporated and signed along with the move-out letter. If you cannot pull together an agreement fast enough, then one can be made at a later time.

In addition to protecting your legal rights, the agreement can protect you against your spouse reneging on promises. Sometimes this happens unintentionally, and sometimes with malice. The protection you get from the memorialized agreement works in both cases.

Please feel free to contact me if you have an impending dissolution or move out.

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

Divorce Inertia

/in /by

Many of the people who have filed for divorce during the lockdown or are going to get divorced or separated once life returns to the “old normal” are not doing so exclusively because of issues that arose during the pandemic. Most are people whose marriages were already on the rocks — but were staying together because of inertia. The pandemic simply served to accelerate the expiration date on what was already a flailing or dead marriage. 

Why is it that some people would “sit on” a divorce until something counteracts the inertia? Finding that out is why part of my basic consultation is to ask, “Why now?” The answer will, to some extent, formulate the strategy of the case. 

For example, I am working with a man who came to me wanting a divorce after being separated for 20 years. I asked him, “Why now?” He said, “Because I’m bored.” He just needed a project to keep him busy! This was the first time I’ve ever heard someone give boredom as an answer, and he was being completely honest. More common responses to “Why now?” include:  an exacerbation of verbal or even physical aggression, including an inability to control arguing in front of the children; loss of sense of self within the marriage; disliking the personality traits one’s spouse brings out in them; lack of intimacy for an extended period of time that someone can no longer handle;  finding another lover that hones in feelings of loneliness within the marriage; economic incentive, such as financial advances that one does not wish to share with their spouse, among many other reasons.  

From an economic standpoint, inertia can have dire consequences in situations where it is necessary to move quickly to protect separate property. There are situations in which a person needs to take immediate action — like if the person wants to start a business or is about to come into a very large amount of money that they don’t want to share with their soon-to-be-ex-spouse. 

So, while the pandemic does not appear to be the cause of many divorce cases, it seems that it has often been the impetus. Perhaps it’s because people have time to think about what they want to do after this situation is over — and one of the things people think is, “I don’t want to live like this anymore.” Sometimes when someone is sick, restricted and/or experiencing loss of control over their lives, they realize life is short, that they want to make a change once they recover and regain a semblance of control. These and/or other factors might create the perfect storm for feelings to bloom for other people, and for the parties of a loveless marriage to overcome inertia.

Regardless of what your turning point was, getting started early will pay dividends in terms of both time and money. It will also place you in a strong position, able to react decisively to any obstacles that pop up. To learn more, contact me.  

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

Is Your Attorney Asleep at the Wheel?

/in , /by

A lot of times people come to me for a second opinion or to have me take over their case. The complaint many people have about their attorney is not about billable hours. Rather, the chief complaint I hear is, “My attorney is asleep at the wheel and neglecting my case.”

Is he/she, though?

The strategy in boxing is to wear down your opponent. Have him throw a lot of punches until he’s totally drained. He may think he is beating you, but you have saved your energy for the very end, when you throw a flurry of final punches, and win the match. 

Is your attorney really neglecting your case or do they have a worthwhile strategy of wearing the other side down? Could it be that they are restraining and exerting effort at the right times and places to be most efficient and cost-effective for your case?   

Your attorney may be mishandling your case, but not necessarily, and it is critical to know the difference. 

Another area where people may get the impression that their attorney may be asleep at the wheel is the period of pre-court discovery motions. Discovery is an extremely expensive process, and because of that a lot of attorneys will ignore any discovery responses or demands until they are actually in court. I have come across attorneys that are like that — any pre-court discovery requests end up being a waste of time and money because the other side will only respond to the authority of the court. In my practice, I have learned how not to waste time and money with attorneys like this. 

Another expensive and labor-intensive process is the taking of depositions. Attorneys will avoid depositions as much as possible. Often people going through divorce hear about the experiences of their friends and family, and wonder why they haven’t been deposed. This is another example of your attorney putting your needs first by avoiding expenses that end up serving no purpose.

No matter what strategy your attorney is using, you should be in on it. Give the word “strategy” some space in your brain, and make sure you stay updated on how it’s going. Together, you and the attorney of your choosing can work smart instead of working costly and hard. 

You may contact The Law & Mediation Offices of Cheryl Stein to learn more about your case.

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

Remote Mediation Works…for Now

/in /by

“We’re all riding the same ocean, but different people are in different boats.” I had heard that quote a long time ago, but it came back to mind as I was setting up my camera for a remote session. With videoconferencing, we’re inviting people into our boats — our homes — and that is a real and genuine experience.

Remote mediation can be done quite successfully. In our firm, we view this as a time to be creating the agreements that will be presented to the court at a later time. Despite the current closures, we can draft an agreement and even have it notarized virtually. By doing so, we ensure that our clients’ divorces will be at the top of the court’s to-do pile when it reopens.

Considering the privacy concerns with Zoom and other platforms, I often switch to regular, old-fashioned conference calls with my clients after I meet them visually a few times. I’ve found that the visual element is not necessarily needed for every session once a rapport between us has been established. 

In an ideal world, there would of course be no COVID — and I would be able to meet with my clients in person. In mediation, the clients are hearing a lot of information for the first time and I like to watch the way they interact with each other and respond to the information. 

Before the pandemic I had a case that illustrated the importance of in-person meetings brilliantly. The couple traveled a lot and I had only met them on Zoom, but they came into my office once they were able to. What I did not expect, and was surprised to see, was the wife’s physical revulsion to being in the same room as her husband. She picked up her chair and placed it as far away from the husband as she could. This important detail was impossible to notice when the couple was meeting with me from two separate locations. 

Remote mediation — and mediation in general — allows spouses to continue working on their divorces even when the courts are closed. It’s also the only game in town for the foreseeable future. But it’s important to note that this truncated, Zoom-based form of mediation doesn’t offer the full suite of benefits that come with in-person sessions. 

To learn more about the different meeting options available, contact me. 

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@cherylstein

Will an Arbitration Clause Protect You?

/in , , /by

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

Divorcing High Net Worth Couples

/in , /by

How apropos is the expression, “Increased possessions, increased worries” or the lyrics to the song, “Mo’ Money Mo’ Problems” to high net worth divorces?

In short, these are first world problems, but problems, nonetheless.

The bigger and more intricate or complex the pie, the more moving parts there are to account for. The asset portfolio and sources of income streams and investments are multilayered and the “mandatory” “nondiscretionary” expenses and the definition of necessities have a significantly broader scope.

The difference between income and assets must also be differentiated, although, high net worth couples are typically well-endowed in both areas and may have income producing assets as well as their business and professional incomes.   

When a high net worth couple divorces, the letter of the law, foremost the statutory caps for maintenance and child support, most often goes out the window, with there being significant latitude for judicial discretion. It’s a different ball game. The statutes are mere guidelines, meant for the average couple, and are inappropriate for ones that fall significantly above the median wealth. Many times, when working on monthly budgets with this caliber of client, their monthly expenditures are higher than what the average American makes per year or what the statutory cap may be.

The present statutory caps are set at $184,000 of the payor’s income for maintenance and $148,000 of the combined parental income for basic child support payments. It is the burden of the payee who is requesting support above the cap to prove the need. This burden is, obviously, swiftly and effortlessly met in high net worth cases.

The caps are periodically adjusted to account for inflation according to the Consumer Price Index (CPI). The $148,000 child support cap was increased to this figure on March 1, 2018. Immediately prior to this, the cap was $136,000. At that time, a client whose monthly budget was in that approximate amount wanted to know what his total support payments would be after an 18-year marriage within the first 2 hours of meeting him; this was unrealistic with the level of complexity of his portfolio and standard of living analysis that would need to be conducted.

The guiding light in these cases is the standard of living analysis, which is an in-depth, thorough analysis of the money and resources needed to maintain the payee’s standard of living, balance out the parties, and ensure that the childrens’ needs will be appropriately met in both households.

These clients still pose off-the-cuff queries at inception regarding how much they’ll have to pay in support, as they often have significant anxiety about it. It is important to be very judicious and careful with this answer, since when clients hear support figures, especially at the beginning of a case, they often become psychologically married to these figures and it gets harder for them to mentally adjust it later.

High net worth spouses whose wealth is tied up in non-liquid assets often have to figure out how to most readily convert the assets to cash in the most tax savvy way. Sometimes they intentionally try to stretch out and prolong the divorce towards this end. These types of case can also be extremely expensive, because of all the required valuations of the assets; moreover, if the parties cannot readily agree on the values and need to hire separate valuators.

There are also different levels of high net worth.

Chances are if you’re living in select neighborhoods in New York City or Manhattan, you’re likely considered as having a high net worth. A family with 3 children enrolled in private school could be running on at least a million dollars a year, but they’re not necessarily feeling so well-off when divorce happens, and they have to liquidate assets and clear out savings.

These different levels of wealth can also be treated differently.

A client wrote in the subject line of one of his e-mails, “I earn 500k, have assets totaling 1.5 million, and am middle- class.” While others might view him as delusional or an ingrate, he wore the middle-class sentiment like a halo and as part of his self-identity. He was very concerned how he would be able to live post-divorce.

Moderately wealthy people often get hit hard. Someone can make $750,000 a year, have assets of $5 million and three children in premier private schools and camps, and divorce can wipe them out.

As of late, in New York County, where there is a high constituency of high net worth divorces, we are commonly seeing judges capping the very high net worth spouses at an income level of approximately $400,000 and setting the child support and maintenance amounts accordingly. As an attorney, it’s important to be aware of this, in terms of setting up the case, counseling your clients, and effectively negotiating towards favorable results.

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