Divorcing XoXo Style

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Any experienced matrimonial attorney who straddles the litigation and mediation spheres can attest to the general misconception that mediation is calm, smooth sailing, and hunky dory, while court cases are vicious and adversarial.

This most definitely is NOT the case!

At times, during mediation, spouses can be at each other’s throats, while litigation cases may be quite untroubled and contained, especially with the help of skilled attorneys who can cut through the malarkey, and not take extreme and impractical positions that are huge time and money wasters.

Regardless of which method of divorce clients engage in — mediation or litigation — there is the potential for calm, open-heartedness, and kindness and the potential for contention, obstinacy, and destruction along a continuum throughout the process.

People often ask me how I do what I do. There is a view that it is disheartening or like being implanted in the deep bowels of sewage. On the contrary, it is often very inspiring and like chicken soup for the soul.

People’s character is most put to the test when they are navigating unfamiliar terrain and troubled waters, and that is, especially, what can make this practice so humane.

I recently had a litigation case where the couple had not touched or been remotely intimate in quite some time. The wife had a tremendous amount of resentment towards the husband, as he had engaged in an affair that she learned about.

Notwithstanding such, the husband displayed no visible guilt and was very difficult during the litigation, playing hardball at every twist and turn. Everything was a battle with him. Finally, at the 11th hour, he agreed to terms that were beneficial to the wife, and she was more than content with what she would be receiving.

The parties were scheduled to be in court on Monday morning, and the attorneys worked arduously over the weekend to draft the extensive and detailed agreement to be just so, exactly as the parties had agreed. Monday morning, in court, the husband takes one look at his wife and tells her that, after everything they had been through over the years, he thought about it overnight and decided he wants to give her more and will give her the house outright and pay off the mortgage, so she can have peace of mind about it. She was so touched that he went above-and-beyond what his monetary obligation would have been under the law and as per what they had already agreed upon (to her satisfaction), and that he was attentive to something so meaningful to her.

She felt that he could never undo what he had done to salvage their marriage, but that this was a token to her and his way of acknowledging her hurt and trying to make amends. The attorneys had to step outside the courtroom at that point to start making changes by hand to the pre-printed agreement. Five copies had to be edited in the courtroom hallway. After the parties signed and were orally allocuted, they walked towards each other and held one another in the deepest embrace for the longest time. And after they let go, they did it again, and she thanked him for giving her the closure she needed. The judge, who is normally no-nonsense and runs a tight calendar, stopped in her tracks, and just sat there staring at them with a warm smile and the brightest twinkle in her eyes.

In another case, the parties had been separated for three years, and the wife had a new partner whom she very much wanted to marry yesterday, but for the slight problem that she was still married to husband #1. She lashed out at her ex constantly, and vented all her frustrations at him for not resolving their outstanding issues sooner, so she could move on. He was very resentful and felt she was somewhat verbally abusive to him in her constant beratements. She then found out that the doctor recommended he undergo shoulder surgery or he would be severely limited from playing sports. All the while, he had been covered under her health insurance plan, with her covering the cost. She had an employer through which she received health insurance, but he was an independent contractor, and it would have been very costly for him to secure his own health insurance, as one must do upon divorce, when they can no longer be covered under their ex-spouse’s insurance plan.

Upon learning of the doctor’s recommendation, without skipping a beat, she told him she absolutely wanted him to have the surgery and have the necessary physical therapy treatments afterwards, without feeling pressured about it, so he could play the sports she knew he loved so much, and that she would wait until his treatments were finished to proceed. She was able to put her own needs to move on in abeyance for the larger picture of not depriving him of his passion.

There are mediation cases where parties yell at each other to drop dead, yet they keep coming back to protect one another (for a multitude of reasons) and their children, albeit it being very difficult for them to even be in the same room as their spouse.   

The reality is that people indulge more in the negative — anecdotes about spouses yelling at each other to get hit by a bus, telling each other that they are terrible fathers and mothers, and looking to one-up the other, but I can match every negative anecdote with at least one positive one, and probably even more. Perhaps the light shines greater when it is surrounded by darkness, but there are many rays of sunshine in this practice. The rebuilding can, and often is, greater than the breakage. The personal character demonstrated when one is put to the test often triumphs.

Feel free to contact The Law & Mediation Offices of Cheryl Stein to discuss constructive ways towards separation and 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

Guilty Until Proven Innocent

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The traditional “innocent until proven guilty” is often reversed in matrimonial cases. One side is intent on presenting the other side as some sort of shady character in order to gain an advantage. A lot of times, it’s used as a strategy, but the party making these accusations typically believes what they’re saying. For example:

Foreigners:

Where parties are foreigners, there’s the notion that what happens in their country of origin is not discoverable or discoverable with great cost and difficulty. A couple, originally from France or Italy, could have been living here for 20-30 years. The husband may have varied and complex businesses or investments, so the wife, intent on getting more money, will make accusations that her spouse has all sorts of accounts in other countries, and that money has disappeared over the years.

People maintain attachments to their country of origin, often flying back at least twice a year and staying for a month at a time. At one point, those parties often did have bank accounts in their home country — what happened to those accounts? These parties are constantly in a state of trying to prove their innocence and cooperation with the full disclosure and discovery process.

When a party asks what happened to those foreign accounts and their spouse explains it, the suspicious and accusing party believes what they want to believe, and it’s oftentimes very hard for the spouse who’s being demonized to dispel that accusation, especially for high net worth couples, where, often, at the time of divorce, there magically isn’t enough money to be divided.  

I have a client right now in that situation. There were millions of dollars made over the course of 12 years, and now they are both asking where it went. I know where it went — I see the way these people live. This is a case where both parties are scratching their heads. Both spouses think the other one’s lying and putting up a pretense. They both think the money is hidden in their country of origin, but the truth is, the money was probably spent right here in America, evaporated into thin air by their sumptuous and indulgent lifestyle.

Domineering Personalities:

Often, one spouse controls the finances and has a more domineering personality. When the person controlling the finances is domineering, there is often the view that they’re hiding things. It’s easy to accuse a controlling spouse of being underhanded and surreptitious.

Business Write Offs:

When the husband or wife owns a business, there are write-offs while they’re part of a family unit. Some business owners find ways to “write off” their family’s groceries, their wife’s manicures, and other household expenses. At the time of divorce, all those things that were once very helpful to the non-titled spouse, and allowed them more money to live on as a married couple, now gets used against the titled spouse to attack their credibility and get more money out of them.

There are those that would argue that she knew all about it — her signature was on the tax return. But then, the reverse could be said — she can only sign as to what she knows. He was the one that knew everything, and she signed for the expenses she knew.

Personal Work Ledgers:

Business owners, or anyone that has any sort of cash business, often have several ledgers to track how much money is really coming in. Lining up and going through all these ledgers can make the spouse’s head spin, and most of the time, the spouse doesn’t know what’s going on and how to accurately interpret and reconcile it all.

We always ask to see work ledgers as part of discovery, but in cases like this, we give special emphasis to it. We home in on personal work ledgers because a party will tell us that they know their spouse was extremely diligent about keeping those ledgers, recording every single penny that came in. I want to see those ledgers, because they’re usually the most accurate account of how much money was really made.

Debt-to-Income Ratio:

When people travel a lot or live lavishly, they can often be in huge debt. Their reported debt-to-income ratio is off-kilter, yet they’re driving extremely expensive cars. Sometimes, their spouse suspects that they are doing it on purpose to make themselves appear poor, on paper. Typically, judges are not fond of these types of people when they try to slither their way out of support payments. The assumption is that these people’s values are misplaced — they’d rather spend money on a luxury car than their families or that there is more money than they are purporting.

Attorneys should always encourage their clients to be ethical and forthcoming. We don’t expect people to be anywhere near perfect, but we do expect them to be trying to do the right thing. If a client did not reveal something in the beginning and then does so along the way, it is our job to correct the record. If we can see from the beginning that the judge does not believe a client and the case continues on this note, we must do a cost/benefit analysis with the client: should they settle or continue to litigate. We don’t want a client to spend large sums on litigation when, ultimately, they may not prevail, because their credibility is questioned. It may be better to settle on a comfortable enough middle ground with the other side than risk an unfavorable ruling or divorce judgment.

Feel free to contact 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

How Camera Shy Are You?

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Courtrooms are, for the most part, open to the public, and if you spend a day in a Supreme Court matrimonial part or Family Court courtroom, you will probably learn who is (allegedly) abusive, a dead beat, a drug addict or an alcoholic as the cases on the calendar are called one by one.

Many of the divorcing parties come to court dressed in their finest for the formal occasion, but as their case details unfold, they cannot clothe themselves enough to cover their vulnerabilities and deficiencies.

These people are usually in a difficult predicament and need bystanders to know what’s going in their lives like a hole in the head. They are not celebrities, who knew well beforehand what they were signing up for. They are ordinary people who often conduct their life with an expectation of privacy.

A group of seasoned matrimonial lawyers posed this dilemma to a panel comprised of some of the New York County Supreme Court and Family Court judges, and the judges conceded that the courtroom and minute books are open availing little privacy in that regard. However, they stated that they publish few decisions, and while this is primarily due to lack of time and resources, they also do so to protect identifying information from being revealed. They further stated that their concern for maintaining anonymity more heavily revolves around protecting the children involved in divorces.

Mediation is more of a foolproof solution toward maintaining the divorcing family’s privacy. In the mediation process, the parties meet with a mediator often in a private comfortable office meant to elicit a more relaxed vibe, and take the edge off (a very different ambience than the often imposing, sterile and cold courtrooms). Many of these offices are discreet and the conversations themselves are between three people – the mediator and the two parties – with no observers. The parties sign a confidentiality agreement to further boost their confidence in the confidentiality of the process (although, arguably, an agreement is only as good as the paper it’s written on, and once signed, requires that the parties respect and maintain its integrity by following its terms). However, mediation is not always a viable option and can only be exercised when both parties are willing participants, so there are inherent limitations.

There is a cost benefit analysis to maintaining open courtrooms and revealing details. The bystanders are most typically attorneys sitting next to their client — other litigants waiting for their cases to be called. While waiting, they often learn how a specific judge navigates and reacts to different case scenarios. This sort of educational process and exposure may often be faster and more efficient, accurate and compelling, than spending hours pouring over case law and general legal research for other litigants and their attorneys to determine how their assigned judge will lean in their case.

Regarding case law research, case law reference and citation is a large part of motion practice. With published cases, surnames are often used (and some of the names are very unusual and uncommon). To add a layer of protection, initials are sometimes used.

It is a very attractive concept to be learning from the details of other cases. The question is, do you want your case to be used as such a platform. While you may appreciate it, in theory, you may want it to be other people’s cases who you and your attorney are learning from to bolster your case and not your case that is being used as an example for others.

So, the question remains and is open-ended: Are there further steps that can or should be taken to better maintain a litigant’s privacy while still maintaining the valuable educational benefits that often flow from the open courtroom and revealing case law.

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

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

The Nurse with a Purse and Sugar Daddy Dynamic

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Should You Take Your Spouse to the Cleaners?

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

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

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

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

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

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

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

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

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

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

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

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

It’s None of Your Beeswax!

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

A couple of reasons for this include:

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

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

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

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

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

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

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

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

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

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

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

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

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

How Enforceable Is Your Divorce Agreement?

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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

There’s No Such Thing as a Gentlemen’s Agreement…and Then Some!

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Often when couples first begin talking about divorce, they come up with their own agreement: “I’ll take this, and you’ll take that…I’ll be responsible for this, and you’ll be responsible for that.” Sometimes, they recruit a mutual friend to play makeshift mediator, and then somewhat live under the terms of the agreement they contrive. However, this agreement is unenforceable, as it is usually either a gentleman’s agreement or one written, but not signed, notarized, and acknowledged in the manner required by the courts to deem an agreement enforceable. Ironically, divorcing parties are often “stuck on” this initial “home-baked” agreement. Fast forward a bit to one of the parties becoming disgruntled enough to commence a litigation action. Within the litigation context, they often keep referring to that initial agreement, which bears no weight.

An analogous situation can occur in mediation. Mediators typically have each party sign a waiver stating that anything said in mediation is private, confidential, and cannot be used in litigation. The parties often strike agreements on various issues and start planning their future and making arrangements based on their agreements. If mediation falls apart and litigation begins, what the parties agreed to during mediation is meaningless. Nevertheless, the parties are often so stuck on what happened in mediation, where they were an active participant, able to get many concessions they were satisfied with, that four years later they are still reminiscing about it with nostalgia. It wasn’t successful—why be fixated on something that didn’t work.

In one extreme example of a mediation case gone sour and turning into a bitter litigation battle, the husband broke into the mediator’s office at night to steal the records from his case, which he thought would highlight the concessions his wife agreed to make during mediation. Besides being a criminal act and downright meshuga, to what end? What was to be gained? The deals struck in mediation stayed there and are bootless.

When divorcing parties start to live under the terms of the agreement before it’s actually drafted, it can be like a house of cards that falls apart. It is important that adequate protections are in place and that things happen in a sequential order.

A good practice is to have “interim agreements” or “stipulations.” In litigation, parties typically enter into stipulations along the way as they settle and resolve select issues and can then move forward to tackle the outstanding issues. For example, there may be a custody trial or settlement with a parenting agreement executed, on the heels of which follow the financial aspects of the case. It is wise to engage in a similar practice in mediation. The parties should each have consulting attorneys, and valid interim agreements can be entered into as the mediation progresses.

In almost every case, there are the pressing, time-sensitive or “elephant in the room” issues that need to be tackled first, which often include but are not limited to:

•Custody, visitation, and parenting issues.

•Interim support plan.

•One spouse moving out of the marital residence.

•Closing joint accounts and devising a plan to pay off marital debt.

•Deciding whether to file tax returns jointly or separately and who claims the children as dependents.

•Removing one spouse’s name from investments they know nothing about and feel they may need immediate protection from.

With the guidance of consulting attorneys, valid agreements can be entered into, settling each of the situations the parties are most concerned about along the way.

Often, when parties resolve the matters they are most anxious about, the rest falls into place more easily.

Whether parties choose to litigate or mediate, it is important to consult with an experienced attorney at the very beginning, when they start thinking about divorce or discussing it with a spouse, to ensure they are adequately protected.

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