Tag Archive for: Divorce Agreement

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

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

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

How Enforceable Is Your Divorce Agreement?

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