Tag Archive for: Litigation

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

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

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

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