Protecting Your Business Partners from Your Marital Fallout

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Spouse or Competitor

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Over my career, I’ve seen many cases in which the parties act more like top-tier competitors as opposed to loving spouses and partners. This almost always causes one of them to feel badly about the relationship because they can’t help but compare their “worth” to their partner’s. They may feel like they’re always outwitted and somehow beaten by them. 

Usually, dynamics like these involve two highly skilled and highly successful professionals. For example:

A couple was running a medical practice together, and it just worked out that one of them drummed up a lot more business. Projects were dominated by that spouse, and patients asked for them, specifically. 

While married, the couple kept the profit distribution for the business at 50/50. It’s a great business with great clients, so they want it to continue. As part of the settlement, they agreed to change the profit model of the business to account for who brings in more dollars. 

When divorcing spouses are business partners, they may end up hoarding business relationships, just as we see when parties to a divorce become territorial with their mutual friends.    

Another common dynamic I see in all types of high achievers, whether they work for themselves or someone else, is that both partners work hard during the week — but one of them really prefers to do nothing on the weekends. Their spouse is someone who takes every pottery class, goes to every wine tasting, and learns every language. That, too, will plant a seed for some type of inequality of effort. To be clear, there are some situations where two people like that can coexist if there is one that doesn’t mind doing things on their own. 

I’m often very inspired by my clients and my cases. I see my clients go through tremendous grief, stuck in a relationship that’s supposed to be loving, yet feeling like they’re constantly competing. You wish that — somehow in their adult life — they can manage to overcome that and reach a happier place within themselves. It’s rewarding when they start dating other people and see first-hand that there are much more peaceful individuals out there. 

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

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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

Remedies for a Blabbing Spouse

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My last post explored the phenomenon of one spouse bad-mouthing the other spouse — to friends, neighbors and places of employment. In this post, we’ll address what you can do about it.

There are a wide variety of strategies that can be used to, for lack of a better term, tell your ex to shut up. Specific legal remedies that can be put in place are: 

•Confidentiality Clauses/Non-Disclosure Agreements: A party can negotiate confidentiality or privacy clauses. Unfortunately, these Agreements are very difficult to enforce and not worth the paper it’s written on. It makes people feel better to include these clauses, but it’s important not to be delusional about their efficacy. 

•Orders of Protection: People do sometimes try to go for the jugular, which in today’s world is bad-mouthing your ex to their employers and coworkers. When that happens, it is a direct cause and reason to go straight for an order of protection to shut the person down. Judges are usually sympathetic to the person who is being harassed, especially since the courts want people employed. 

•Litigation: Johnny Depp’s defamation suit against Amber Heard was an outlier in the world of divorce. Most people do not want to litigate for various reasons, most commonly to avoid airing out their laundry for their employer or general network to potentially see — but sometimes bringing a suit is the right solution to the problem at hand. 

There’s often trepidation among divorcing people around using all the tools in their arsenal. They worry that doing so will exacerbate the situation. For example, if someone works at a job that requires a security clearance, they may be afraid that something like an order of protection will appear as a black mark and flag them from clearing. 

Instead, a lot of people choose the status quo and, essentially, suffer in silence. 

It’s important to keep in mind that the courts, as we know, are part of the government. The government is always afraid of people becoming a ward of the state. They want people employed and fully functioning, and they take this idea of playing around with another person’s employability very seriously. The legal system is capable of helping you — if you have good representation and know which cards to play.

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

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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

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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

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

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

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

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

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

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

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

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

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

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

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

Divorcing an Addict

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

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

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

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

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

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

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

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

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

When Your Spouse is on the Wrong Side of the Law

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

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

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

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

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

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

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

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

“Me, Too” Divorces: A Case Study

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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

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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?

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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

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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

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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

The Halo of Fear Surrounding Alimony

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Educate yourself about alimony payments and know your options.

Alimony, maintenance, and spousal support refer to the same thing. Attorneys tend to use the term maintenance, since its purpose is to maintain the receiving spouse’s standard of living for a certain duration of time after the marriage.

The lay public tends to use the term “alimony.”

The maintenance calculation was standardized in January 2016; the way it used to be allocated was less streamlined and too subject to judicial discretion. If there are no children or if the payor is not paying child support, it’s now based on the lowest total of two calculations: 30% of the payor’s income minus 20% of the payee’s income OR 40% of the combined income minus the payee’s income. If child support is also being paid, then it’s the lower of 20% of the payor’s income minus 25% of the payee’s income and 40% of the combined income minus the payee’s income. Agreements must consider how much net income the parties have so the payor is still able to pay his or her own bills and living expenses.

Maintenance is calculated based on adjusted gross income; the money left after Social Security, Medicare, and New York City Tax are paid but before retirement contributions are deducted. Maintenance used to be tax-deductible to the payor and taxable to the payee, but this is no longer the case, which is still causing confusion and disappointment among payors.

Judicial discretion can still be an issue when deciding the duration of maintenance payments. If the marriage lasted up to 15 years, the duration is 15-30% of the length of the marriage; for 15-20 years, it’s 30-40% of the length of the marriage; for a marriage over 20 years, it’s 35-50% of the length of the marriage. There is room for discussion when determining where people should fit in those ranges and even whether there is room to deviate from the ranges altogether. 

Maintenance causes much grief for payors because it’s so difficult to modify. The standard to reduce maintenance is much higher than to reduce child support, and judges can be hard to convince. Some payors would prefer to offer more in child support and less in maintenance, because if their income decreases, they are more likely to be able to reduce the child support payments. This was not the case when maintenance was tax-deductible to the payors. Then, obviously, the payors wanted to beef up their maintenance payments relative to their child support payments, the latter not be tax-deductible then or now. 

One client’s husband negotiated very hard to get language in the agreement that if his income went down, he could get a certain amount of reduction in his maintenance. We did not have to give him that concession, but they wanted to keep it an amicable, uncontested divorce. We created room in the agreements to allow for modification, provided his support would never go below a certain amount. The payee is often afraid because she’s dependent on him continuing to be able to make a certain income.

Another attorney had a client whose ex-husband got fired due to the “Me Too” movement; he’s having a hard time finding new employment, so she can’t get her maintenance. She wants to sue the husband’s former employer for interfering with her separation agreement. In litigation, you go after the person with pockets, and her ex-husband doesn’t have the pockets anymore. Whether or not she has a valid claim, people get desperate; they have bills. 

Alimony recipients have legitimate fears of what might happen if the money suddenly stops flowing. Maintenance payments are sometimes huge, $7,000 – $8,000 a month or more. When a payee’s rent is $8,000 – $9,000, if they suddenly don’t have that money, their whole life could spiral into chaos very, very quickly. 

By law, maintenance ends upon a person’s remarriage. Language is often added to the agreement during negotiation that maintenance ends upon cohabitation with a new romantic partner. A provision that maintenance stops at cohabitation can create fear and resentment in certain cases. 

Let’s say a woman was married for 20-plus years so she’s entitled to maintenance payments for a significant duration. Two and a half years post-divorce, she meets someone that she would like to move in with. She may be afraid to move the relationship forward, because she will be cutting herself off from a tremendous amount of money that she really was entitled to. She invested over 20 years in that other pernicious spouse, standing alongside them, running their household, going to work events with them, but now she’s going to lose that hard-earned income prematurely if she moves in with someone.

Sometimes the divorcing parties just say money is money and they negotiate equitable distribution. This can be favorable to payors because sometimes they can haggle over that lump sum. They have leverage when offering a buyout amount on the maintenance because cash is king. Payors often prefer this option because they won’t have to share future paychecks with their exes. It’s also easier from an emotional standpoint; payors feel they’re just ripping off the band-aid rather than prolonging the agony. 

I recently had a case where the husband really wanted to pay it all upfront and the wife rejected it; she refused, saying, “I want monthly payments.” I actually think based on her circumstances and what she wants in her life, she would do much better with taking the lump sum. But she is not a financially sophisticated woman, and some people with less financial savvy are afraid of getting a lot of money very quickly. Monthly amounts are somehow easier for them to conceptualize. 

When alimony is paid in conjunction with child support, the child support gets adjusted when the alimony duration ends. Sometimes the agreement is written to specify the future adjustment; other times the agreement just states that the parties will adjust the agreement at the time child support is modified. People who prefer to specify feel the whole point of the agreement is to pin things down once and for all, since re-negotiating can be very emotionally burdensome and anxiety-producing. 

The halo of fears surrounding maintenance, for both spouses, can be mitigated by careful attention to these details during the global settlement negotiation. Care and caution now can save future pain! 

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

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

YOU ARE NOT THE PERSON I MARRIED

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Basic Second Law of Thermodynamics is that things gradually fall apart — into a state of disorder and disrepair. As powerful as gravity, the overwhelming force of the world’s natural tendencies is hard to beat. 

It is no surprise that, as humans, we too peak in our state of optimal growth and then our systems, more often than not, decline. Most people expect this to happen, but way down the line, in some fuzzy distant future. However, life does not always follow the script and premature illness is challenging to grapple with. 

Classic wedding vows include “in sickness and in health;” there is this overriding expectation that spouses can stand by each other through the most vulnerable times, but not everyone can or wants to stay in a marriage that goes from friend, companion, and partnership to caretaker when their spouse’s health turns south during what may be the “prime” years of their lives.

“Superman,” aka, Christopher Reeves, was a famous case of caretaking by a spouse. Michael J. Fox has been very open about his Parkinson’s and remains married throughout his ordeals. The much beloved novel from the 1970’s by Erich Segal, “Love Story,” portrayed a strong love in the midst of a wife dying of cancer; but, not all marriages unfold this way in the face of illness or disability; not all spouses feel so committed, love to this degree, or can handle their spouse’s ailments. 

I have seen a full spectrum of reactions to a spouse’s illness in the face of separation and divorce from exceedingly collaborative and amicable to vicious and hostile. The former instances include extending as much time as needed to the ill spouse to acclimate to the idea of divorce; agreeing to pay well above the statutory maintenance guideline amounts to comfortably support an ill spouse; living under a separation agreement for an extended period of time rather than finalizing a divorce so the ill spouse can remain on the other’s health insurance plan, which separation allows for but divorce bars; proceeding with a divorce but agreeing to pay the permitted 3 years of COBRA for dependents to allow the ill spouse to have continued health insurance for at least that duration of time; and agreeing to remain married for a minimum of ten years so the ill spouse can collect off the other’s social security, which is permitted once couples are married for ten years.  

On the litigious end, I have seen a husband and father who left his cancerous wife, subpoena his only child, an adult son, who had moved in to his mother’s house to help her while she had cancer; the husband’s agenda was to impute his son’s income to his ill wife, so that he wouldn’t have to pay her maintenance. 

More of these “cheery” stories include a husband who stayed with his ill wife, with whom he had two children, for years but had a long term extra-marital affair that fostered additional children, who he funneled more money to than to his wife and children of the marriage. He said his wife’s progressive illness killed any semblance of what he wanted and needed out of a marriage, but that he felt too guilty to leave her while his children with her were growing up. He commenced a divorce action when his children of the marriage were grown, but they were onto him, and it became a case of children against father. The children were actually attorneys, and they pieced together that their father had spent hundreds of thousands of dollars on his “other” family. They were intent on getting the best deal they could for their mother to compensate her for all the marital money their father had spent on the other woman and children in his life. For better or worse, this man was not a sympathetic character before the presiding judge, who practically forced a very harsh settlement deal down his throat in open court.  

Often when someone can’t handle their spouse’s illness, they stay out of guilt, fear of a protective relative, or because of perceived obligation, but eventually check out. They feel like a prisoner to their relationship and are often resentful. 

Both the healthy and ill spouses in these instances are sympathetic in different ways and require strong advocacy; they suffered enough, and until we walk in another’s shoes, it can be difficult to pass judgment on their actions and decisions.

Please 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@cherylstein

Good Samaritan Divorce

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Is there a price tag to being a Good Samaritan in Divorce? 

“A Good Samaritan — a charitable or helpful person.” 

There are infinite ways of exercising kindness to one’s spouse during a divorce, but we will focus on the timing of divorce here.  

Sometimes, in a divorce, one party needs more time while the other wants the divorce finalized immediately. The one that wants the immediate resolution will try to exercise grace, extend the other party significant latitude, and give them more time, sometimes years to ease the blow and transition for the party having a harder time with the concept of the divorce and disentanglement. What can happen is that two, three, or even more years go by before the divorce process is underway. 

Due to that wait time, the spouse that has exercised patience can end up having to pay much more than if the divorce had been commenced earlier, because of the equitable distribution cut-off date being postponed and the maintenance entitlement, as a correlation to the length of the marriage, being longer. 

For example, wages/income earned, bonus payments, retirement accruals would be subject to equitable distribution, so you have cases where parties have been living separate and apart and want half of the other’s bonus payments and funds in separately titled accounts that income has gone into, in addition, to support payments.  

The cut-off date for equitable distribution is demarcated by the filing of a summons for divorce or the parties entering into an agreement, such as a postnuptial or separation agreement specifying the equitable distribution cut-off date. 

On the maintenance end, the formula states that for a marriage up to 15 years, maintenance is 15-30% of the length of the marriage; at 15-20 years of marriage, maintenance is payable for 30-40% of the marriage; and for a marriage over 20 years, it’s payable for 35-50% the length of the marriage. So, the longer you’re technically attached to someone, the longer you’re paying them. 

In one extreme case, a well-off husband, who worked for 5 years trying to negotiate an agreement but never filing a summons or doing anything to cut off equitable distribution, ended up being obligated to pay his wife a lot more due to the patience he extended to her during that 5 year period when they were still married, although living apart. 

In this situation, the more monied spouse exercised kindness and allowed the other spouse more time, which in turn cost him more than it needed to. Both spouses knew the marriage was over, and the spouse who needed more time was totally unsympathetic in the final divorce. 

Sometimes, the waiting spouse is acting from pure altruism — out of empathy and compassion towards their spouse; often, there is also an interlaced self-serving quality, as the waiting party thinks their spouse will be cooperative and less aggressive in their demands when they finally come around. 

Sometimes, this works in the reverse, where the non-monied spouse gives the other party latitude and by the time they are ready to proceed, there is a lot less money to divide, as assets have dwindled. 

The “feel good” concept we’ve all heard: “You attract the energy you put out” simply does not always unfold as such; far too often, the party putting out gracious energy gets taken advantage of, as cynical as it sounds.  

Unfortunately, being a Good Samaritan can get a divorcing party taken advantage of and leave them feeling beaten down and resentful.  

There are practical solutions to stop-gap this, including but not limited to, stop the clock agreements; equitable distribution cut off agreements; postnuptial agreements and interim agreements; filing a summons but holding off on filing a request for judicial intervention while the agreement is being negotiated.  

Feel free to contact us to discuss the various containment methods and best strategy approach where these Good Samaritan dynamics operate in the shadows.

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

Will an Arbitration Clause Protect You?

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

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

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

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

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

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

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

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

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

There are notable differences between the courts.

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

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

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

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

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

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

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

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

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

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