What’s Mine Is Mine, And What’s Yours Is Ours

While courtship is premised on a showering of gifts and benevolence to one’s partner, being a tightwad and hoarding for one’s self often signals the beginning of the end. No surprise.

Money can often end up becoming the main source of tension within a marriage, ultimately leading to a divorce.

I recently had a case where the husband, a sophisticated, forward-thinking man well into his 50’s, could not stop talking about his bar mitzvah. In his youth, he was one of those entrepreneurial kids who was always engaged in business ventures, ranging from corner lemonade stands to snow removal. He proudly accumulated money and saved it in an account together with his sizable bar mitzvah (quite large from generous family and friends), birthday, and special-occasion gift money. When he married, he chose to make this account the primary marital account, commingling the funds with money he earned while he was married and third-party gift money he received during the marriage.

His wife operated under an alternate paradigm where she very carefully kept her premarital accounts separate.  When she received sizable inheritance and gifts from third parties during the marriage, she placed the money in her premarital separate accounts, maintaining their separate property integrity status.

The husband felt they were a team and everything he had was dibs to all. The wife felt that way about her husband’s money but not her own. She reasoned that the husband was the mutually agreed upon primary supporter and his job was to support the family. However he managed to come up with the money, she really did not care, so long as it supported the family and she did not have to worry about it. She rationalized that her role of primary homemaker came with its own responsibilities and stresses, and her husband should not be dependent on her premarital, gift, and inheritance money; she did not want to share it.

Because money is fungible, the husband lost out on any separate property money credit due to his commingling, while the wife preserved hers. The wife operated under a classic “What’s mine is mine and what’s yours is ours” prototype.  

This is a bit like a chicken and egg situation. Did the wife begin to see that the marriage was going south and consult with a matrimonial attorney at some point to learn how to keep her money separate? Or was it the fact that she seemed to have an attitude of selfishness that ultimately led to the divorce? As stated from the beginning, money issues are often a major component of marriage breakdowns. The husband described himself as feeling like a cow towards the end of his marriage, being milked for his paycheck, his wife being disinterested and dismissive of him for all other purposes. Interestingly, they got along and saw eye to eye in many other respects, including sharing most larger-scale values and child-rearing approaches.

In long-term marriages, some believe that at the end of the road everything should be thrown into the marital pot and split equally; that if they spent that many years together, we’re partners, and complemented each other’s roles in many respects, the notion of separate property should be washed away, regardless of the statute’s letter of the law definitions and classifications. This is a common approach in highly cooperative mediation cases. However, don’t bet on it, as it is the minority approach.

Feel free to contact us with questions regarding separate and marital property classification, appropriate planning, and protection mechanisms.

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 to Get What You Want in a Divorce

From the outset, I discuss with my clients what their bottom line is and what they are willing to negotiate on. Typically, in the beginning, the client wants everything but the kitchen sink. Over time, however, the way that bottom line ends up morphing is astounding, especially as the urgency to get relief from the situation envelops the client. Of course, the goal in litigation is to get the other side’s bottom line to morph towards you as much as possible. In mediation, it’s to get the clients to meet somewhere in the happy middle.

One of my clients wanted his wife to have a certain amount of life insurance, with him being the trustee. She agreed, with the stipulation that she be the trustee of his life insurance. He didn’t want that and realized it wasn’t important enough to him to delay the process. So, he chose to “pick his battles” and took this out of the negotiation altogether (even though that was originally his ideal end situation).

Another client wanted her husband to pay towards multiple extracurricular activities for their very young child, especially as he could more than well afford it. His position was that he would pay towards only one extracurricular activity that he thought most appropriate to enhance the child’s development at any given time. He was very obstinate on this point and would not budge. They had a joint custody arrangement, where ALL decisions relating to the child were to be made jointly, and both parents were very involved. She ultimately decided that if she allocated and budgeted her money carefully enough and cut down personal spendings in other areas, she could come up with the money to pay for the child to be enrolled in multiple extracurricular activities at a time, as was really important to her. We proposed that she would be responsible for all extracurricular activities above the one he agreed to pay for, but that she would also NOT need his consent. He resisted at first because it meant relinquishing some of his control and decision making. Ultimately, he begrudgingly acquiesced, and the parties signed off on it.

Those can be categorized as more “small ticket items.” Sometimes, divorcing parties start to feel such an overpowering desire for immediate relief and resolution, they start bending on “big ticket items.” For example, they may start offering to accept significantly less in basic child support than they are entitled to pursuant to the statute; or to pay a lot more (if they are the non-custodial parent to pay basic child support). It is critical that the parties are anchored, thinking it through clearly, and not “selling their shirts,” so to speak, for the immediate gratification of a speedy divorce.

As clients go home and crunch their own numbers, they seem to start analyzing their lives more. They think about their lifestyle and what they want in the short and long-term future—different things end up being important than what was initially thought.

In terms of negotiation tools, what people think is going to be important to the other party often isn’t. This is most poignant during mediations when each side fills out a separate intake form where they convey their desired results and bottom lines. I’ve had a wife say in mediation, “I know him; I know what’s important to him.” As the mediator, I knew that, in fact, it was something else that was important to him—something the wife would not have thought of—and vice versa.

Sometimes, during litigation, the other party’s responses to a settlement proposal focus on something that is such minutia to my client, we would laugh about it. That’s an important piece when bartering—each party can receive “his/her minutiae” and everyone can be happy.

Often when clients think through their situation, they calm down on their own. What once was a problem becomes a non-issue. So rather than throw fuel into the fire, let things simmer on their own. Be willing to morph your bottom line, and focus on what’s really important to you in your divorce negotiations.

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