Tag Archive for: Prenuptial Agreements

The Interplay Between Divorce and Immigration: Part 2

In last month’s article, we spoke about the intersection between matrimonial law and immigration in broad brushstroke terms. In this article, we parse out specific red flags and nuances to look out for in cases where immigration is a factor. 

Prenuptial Agreements:  

Many citizens who marry immigrants choose to have a Prenuptial Agreement in place prior to entering the marriage. 

Prenuptial Agreements are a sound measure for their protection and I highly recommend them. But, if you are doing a Prenuptial Agreement, you need to do it the right way. Make sure you are not just pushing meaningless ineffective paper around that isn’t worth the paper it’s written on. 

Many marriages involving immigrants happen in a speed of lightning way to offer the immigrant protection. The problem is that Prenuptial Agreements should not be done in such a mirrored manner. Chik chak hurried for a Prenup is asking for problems if the Prenup is later questioned and challenged. 

It is especially important that the Prenup be objectively fair and one that a reasonable person of sound mind and not at the heels of utter desperation would sign. 

It is also critical that both parties be represented by attorneys. I am often the lead drafting attorney. My clients time and again ask me if their soon to be spouse really – truly – absolutely needs their own attorney? Like they are willing me to respond something other than an unequivocal, affirmative, and trumpeting YES! 

These Prenups also tend to demarcate all property as exclusive separate property of the parties as dictated by title of ownership. 

While many Prenups do this, the Prenups involving immigrants do so at a higher average than others. Exclusive separate property Prenups, such as these, are an opt out of the New York Domestic Relations Law that dictates that acquisitions after the marriage date are marital, and to be split equitably, regardless of how title is held. 

See, https://www.nysenate.gov/legislation/laws/DOM; https://www.nysenate.gov/legislation/laws/DOM/236.

As we noted in “The Intersection between Divorce & Immigration: Part 1,” joint and commingled finances is one of the cogent persuasive points of evidence the immigration authorities look for to satisfy them that a marriage involving an immigrant is a bona fide marriage. 

So, we need to satisfy the seeming contradiction of a Prenup that designates all property as separate and the immigration authority’s criteria of evidence demonstrating joint ownership and commingled finances. 

We do this by carving out an allowance in the Prenup for a joint household account held in joint names. There is no minimum the parties must maintain in this account. The question becomes how the account funds would be split in the event of a divorce. Cash accounts are most typically split equally in divorce, but for these couples, we often specify in the Prenup that the funds will be split pro rata to contribution so that the spouse who funded it more heavily does not lose out. 

International Travel with Children:

What comes to mind most commonly is a fear that the immigrant parent will abscond with the children back to their native country and create hardship and aggravation for the American parent to get the children back. Depending on the immigrant parent’s country of origin and such country’s recognition of international law and conventions, this can be a real concern. We often work with international experts for these cases. You would also want to look at the Hague Convention and signatory countries to better grasp your situation. Non-signatory countries should justifiably evoke a healthy dose of trepidation and concomitant precautionary measures to ensure the children remain safely on American soil. See here to learn more:

https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction.html

Another aspect though is the perspective of the immigrant parent. They want protection and assurance that the children will be able to travel to their native country to spend time with grandparents and cousins for, say, a summer or long holiday break. The desire for the children to develop a strong relationship with family members abroad and also be immersed in the native culture of the immigrant parent sings loudly. This is often honored by the American parent as they too recognize the enriching benefits this can have on the children. We can address this by specifying in the parties’ divorce agreement the times and parameters for such extended travel and visits the children may have with extended family abroad. So long as the visits are to a country that is a signatory to the Hague Convention, the cost benefit analysis of them weighs in favor of the benefits. 

To learn more about these and further nuances of marriages and divorces involving an immigrant spouse and how to handle them, including: a) VAWA (The Violence Against Women Act, 34 U.S.C. § 12471 et seq.) claims and protections where domestic violence is involved (See here:  https://www.uscis.gov/humanitarian/abused-spouses-children-and-parents); in addition to those cases where, unfortunately, VAWA is manipulated and domestic violence is falsely claimed to gain an advantage; as well as b) difficulty locating your spouse when it’s time to serve them with the summons for divorce because they conveniently disappeared into the thickets of their ethnic enclave communities, contact The Law & Mediation Offices of Cheryl Stein at https://www.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

 

Are You a Puppet in Your Own Prenup?

In sync with the current day, age, and New York City demographic, I have been doing a substantial amount of prenuptial agreements. The underlying dynamics and personalities are critical defining variables. One such dynamic that has recently been popping up in a nearly extreme and cartoonish manner is the “Puppet In Their Own Prenup!” or “Where’s Waldo?!” scenarios. This is where one of the parties is AWOL from the entire negotiation and preparation process and the whole agreement is orchestrated on their behalf, typically by their family, family’s arsenal of attorneys, tax and financial strategists/planners, or just the party’s individual matrimonial attorney.   

The puppet in these cases often has never read the agreement for him- or herself and does not know the content or how much the agreement cost, as it was paid for by others, and simply blanket signs at the end of the process to formalize the agreement.

Needless to say, this is a lamentable practice, as it is an attorney’s responsibility to ensure the client read the agreement and understood its terms before executing. Even if the party’s parent bankrolled the agreement and was the one in direct contact with the prenup attorney, it is the marrying party signing the document who is the real client, a fact that should never be lost!  

A case in point was one where both clients were high net worth, but one significantly more so than the other, as the family owned multiple international businesses. The bride-to-be was a spirited, roll-up-her-sleeve and do-it-herself young woman. She became intimidated when she was presented with the prenup by a team of attorneys and tax experts whom her future father-in-law hired for the task; her fiancé was completely uninvolved in the process and did not know what was flying.

She came to me and we turned the situation around to one where she understood the prenup in its entirety, and we negotiated it to be favorable towards her. She felt more confident and emboldened by the process, and it ended up being a great experience for her. Her fiancé was never involved in the negotiations and did not know the content of the agreement; he did not particularly care about it. He was quite young and did not really grasp his own net worth, so the process was meaningless to him.

The main attorney on the groom’s side responsible for overseeing the prenup candidly admitted that he was so focused on pleasing the groom’s father, who had hired him, and his team of experts that he never paid much mind to the actual groom and reviewing the agreement with him. The groom was an after-thought, practically a guest at his own wedding.

Another case presented an attorney who handled the prenup as if she were personally negotiating her own prenup. The client was a puppet to her own attorney’s wishes. What the client really wanted was for her attorney to explain the various options she had in each situation, and to decide what was best for herself without her attorney supplanting her own personal wishes in the agreement.  

It is best practice to encourage clients to be active in their own prenups, so they can understand the process from beginning to end. It is critical to ensure that both signatories, the bride and groom, have read the agreement for themselves. In fact, my retainer agreement specifically states that part of my service is to ensure that each person involved understands the ramifications of the provisions in the agreement.

If you find yourself needing a prenup, don’t let yourself be a puppet!

Feel free to contact us with your prenuptial agreement 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@cherylsteinesq.com

‘Til Death Do Us Part…

“’Til death do us part” may more aptly be phrased “I will follow you into the grave!” 

I’ve had a number of clients come to me that live in loveless, self-absorbed, and contentious marriages but manage to exist, having developed a certain understanding in their relationship, such as living in separate bedrooms. Many of these people feel contempt, anger, or apathy towards their spouse. For example, their spouse may be extremely stingy; wastefully dissipate money on addictions; abusive, or duplicitous and cheating on or stealing from them. Nevertheless, for a plethora of reasons, they are often resistant to divorce and want to stay in the marriage.

Many times these people think that there will be justice and a sense of dignity and self-protection if they predecease their spouse, as they believe their spouse will not be able to get anything more from them then. They believe that they can exercise some control while they’re alive to ensure that what is theirs will be carefully allocated when they pass away.

They then become disheartened and their bubble is burst upon learning that their will may not be actualized according to their wishes, and that their spouse may be able to collect under the Right of Election. The Right of Election ensures that you cannot disinherit your spouse; they are entitled to the larger of $50,000 or a third of their spouse’s net estate. Learning this motivates people to find out their options, which include: 

•Signing mutual waivers, which is a critical dimension of both Prenuptial Agreements and Postnuptial Agreements, especially amongst older couples where one or both of them have established a significant amount of wealth and have grown children who they plan on bequeathing their estate to. The fact that their spouse would be able to collect a certain minimum amount throws off the dynamics of what their children could potentially get. Under regular law, you cannot write your spouse out of your will. However, this waiver can dictate that what is written in the will dominates. 

Prenuptial and Postnuptial Agreements are increasingly popular across the board, and especially among older, more established spouses, or people with significant family wealth.

The Prenuptial Agreement is obviously an exercise of foresight, caution, and investment in insurance prior to the marriage. Sometimes, people are wary about bringing it up with their fiance because they are afraid of their fiance’s reaction. However, there are simplified prenuptial agreements that can be entered into that set forth reasonable, modified rights, and waiving the right of election is almost always included in these more narrow, limited-in-scope agreements. It is not overly offensive nor does it shock anyone’s conscience, so to speak, prior to marriage, and fiances are generally amenable to signing and don’t feel isolated in the relationship by such.   

As mentioned, often people are already married when they first learn of the right of election, feel indignant about it, and torn by their basic desire to have their wishes as expressly set forth in their will trump. Once people are married and wanting to carve out certain understandings, they can include a waiver for the right of election in a Postnuptial Agreement. Sometimes when an unhappily married client comes to me in this type of situation, they feel their spouse will be so resistant to a Postnuptial Agreement, they would rather just go through with a divorce at that point.

It is important for people to understand how wills, trusts, and estates are intertwined with divorce, including the fact that on the heels of a divorce, new wills need to be drafted, as new beneficiaries and trustees will likely need to be designated. Also, people should understand the implications of the rights that come with the marriage, such as the right to take against your spouse’s estate.

If you’re going into a marriage or contemplating a divorce and you don’t want your spouse collecting against your worth or your estate, consult with a qualified divorce attorney to put the appropriate measures in place to ensure your estate is bequeathed appropriately, within your control, and according to your wishes.

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