Family Law Matters Blog

December 13, 2013

Prenuptial Agreements and 12.13.14 Weddings

Last month, one of the more enjoyable stories in the news revolved around the 11/12/13 date. It seemed everywhere you looked, news outlets, bloggers, and talk shows were talking about the number of weddings happening on this unique date. Weddings on 10/11/12 were no different, as people seemed to rush to the altar in order to celebrate their special day on this truly distinctive date.

The trend of getting married on a consecutive number date did not start in the past two years; people often look to consecutive dates as their own type of holiday – perfect for a wedding. In the past couple of years the trend has seen a rise, though. Much of this is undoubtedly due to the fact that after December 13, 2014 passes, it will be quite a long time until couples can sprint to the altar for a consecutive date wedding (and “long time” may be putting it mildly!). This past November was especially interesting because the consecutive date fell on a Tuesday – not exactly an ideal day of the week for a wedding. Yet even though a Tuesday wedding seems less than perfect, there was an increase of over 700% than the second Tuesday in November of the previous year. Even Las Vegas was “cashing” in on the special date, offering wedding deals discounted even more than usual for its chapels. With so many people tying the knot in one day, the story of true love and happiness practically writes itself. However, it also raises some considerations about how to handle the upcoming nuptials.

I’ve written previously about the value of prenuptial agreements for professional athletes (and other individuals with fluctuating high-income professions), but prenups are important for virtually any individual looking to get married. Couples that are in a hurry to get to the altar can sometimes forget to handle details and issues that may affect them down the line. In my previous post on prenuptial agreements for professional athletes, I compared the relief an athlete may feel after signing a contract to the relief a couple may feel once the prenup is handled. To be clear, a prenuptial agreement is an agreement entered into before marriage which sets out the assets of each person and can include control of each person over the assets and financials. The agreement spells out how the assets will be treated should the marriage fail. Prenuptial agreements have become increasingly common when at least one spouse has a high net worth (see Prenups and Professional Athletes) or has children from a prior marriage; but the logistics of a prenuptial agreement make sense for any couple looking to walk down the aisle. It is extremely important for all couples to communicate about money before and during marriage.
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December 6, 2013

International Divorce and What it Means in New York

by Deborah Hope Wayne

The divorce process can involve several obstacles. Every state has its own rules and requirements for filing and for the process itself. Divorce encompasses many intricacies, including the marriage contract, presence and residency of the parties, etc. It is important that the parties properly address the complexities of property distribution, child support, spousal support, parenting, health insurance, and other issues of the case in a manor that meets the requirements of the New York Courts.

One issue that may occur is how the divorce process changes (or remains the same) when international laws and elements come into play. With all of the modern advancements of today, including ease of travel and communication technology, it is becoming commonplace for someone to have some type of international relationship, whether it is friends, family, or even marriage.
International divorce can mean a few different things, depending on the parties themselves. International divorce may refer to the process abroad as opposed to in the United States. However, here we will focus on international divorce from the aspect of non-US marriages, divorces obtained outside the US, and ex parte non-US divorces.

New York recognizes both fault and no-fault grounds for divorce. The fault grounds include cruel and inhuman treatment, abandonment (for at least one full continuous year), adultery, three years or more of imprisonment, and conversion (when a separation is converted into a divorce). The no-fault ground for divorce in New York refers to the irretrievable breakdown of the marriage for a period of at least six months. It is important to note that this is just an overview of the grounds – each ground has certain requirements and bounds attached to it. These grounds apply to any divorce being sought in the state of New York, so citizenship of a spouse in a foreign country does not really come into play. However, there are instances of the divorce process where the international aspect will arise. For instance, a change in marital status may affect an application for citizenship. It is strongly recommended to consult with an immigration attorney as to the impact of divorce on immigration status.
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November 22, 2013

The Benefits of Collaborative Law

by Deborah Hope Wayne

To many people, the word divorce is like a “four-letter word” for many different reasons. Amicable divorces do happen, but many divorces involve hostility, anger, and a whole array of negative emotions. When a couple is faced with a stressful and possibly hostile situation, they often feel that the ordeal becomes even more stressful in court. Collaborative law has become an increasingly popular way for couples to make the divorce process more efficient as well as less confrontational.

One of the most important aspects of collaborative law is its non-adversarial nature. Rather than facing off in court and trying to win over the other party, collaborative law focuses on an optimal result for both parties. Because collaborative law allows the parties to have a respectful exchange of a non-adversarial nature, it helps to eliminate some of the added stress of the divorce process. Now you might be thinking, “It seems that any divorce, no matter what method or process is used, would be adversarial by its sheer nature.” Divorce involves a couple going through the process of dissolving their marriage. While it is true that the very nature of divorce can be adversarial, the process to achieve its result does not need to be. Collaborative law focuses on achieving a result that considers the well being of the whole family.

Although some couples rely on settlement negotiations in the divorce process, it is important to note that these negotiations do differ from using collaborative law. Settlement negotiations may take place outside of the courtroom and away from the judge, but these negotiations are still done with an “I win, you lose” mentality. Collaborative law allows attorneys for each party to have an open and respectful discussion of the issues – usually with the parties being present and participating. Each side is working in good faith to reach a settlement and if that does not happen, the collaborative law attorneys withdraw. In conventional settlement negotiations, the lawyers may stay on to represent the clients in court if settlement is not reached. This aspect of collaborative law seems nuanced, but this important legal obligation to withdraw from representation if settlement is not reached, reflects the idea that collaborative attorneys are committed to helping the parties reach a reasonable settlement.

Another benefit of Collaborative Law is the ability to maintain confidentiality of personal information. In a collaborative setting, all information, except for documents that were not produced specifically for the process (i.e. tax returns and bank statements) remain out of the court’s record and private. There is also full disclosure of all information necessary for decision-making. Full disclosure helps to create an open environment, which encourages truthful and principled negotiations so the parties are able to work together more efficiently toward the best resolution.
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October 29, 2013

Using a Joint Bank Account for Child Support Payments

by Deborah Hope Wayne

When people discuss child support, it is often through assumptions and generalizations about how it works, who pays, and how much is paid. However, each state has unique laws dealing with child support, and it is important to know how your state works if the time comes for child support to be addressed. New York passed the Child Support Standards Act (CSSA) which outlines and charts the guidelines for child support payments. There is a chart released every year which takes into account the poverty line (as reported by the US Department of Health and Human Services) and allows individuals to calculate the approximate annual child support obligation. There is an option to deviate from the CSSA if using the guidelines would produce an unfair result or the parents agree that an alternative method of child support would be more beneficial to the family.

With all this in mind about the support calculations, the issue then turns to the actual child support payments. Just like people tend to assume sweeping generalities when it comes to how child support is calculated, there are also assumptions about how child support is paid out. Many people focus on the more invasive options like income withholding or liens on bank accounts. However, a recent trend involves the divorced couple setting up a joint bank account for purpose of support payments.

In some cases, parents elect to establish a joint bank account to address the children’s needs. Parents can make an agreement that specifies in detail how the account is to be funded and utilized. The account is then limited by those specifications agreed upon by the parties and memorialized in the agreement solely for the children’s needs. There can also be a joint bank account in addition to traditional child support, for specific purposes depending on the children’s needs. An important thing to remember is that any type of agreement for a joint bank account will be specific and unique to the parents and their situation. The parents can tailor the agreement and type of account so that it works best for them and the children’s needs.
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October 14, 2013

Prenups and Professional Athletes

by Deborah Hope Wayne

A solid contract is the cornerstone of a successful career for any professional athlete. A contract provides a sense of security, both personal and financial. Generally, an athlete will hire an agent to look out for his/her financial interests, ensuring that every deal or endorsement made is defined by a contract. Like many couples, however, when it comes to love and marriage, athletes are uncomfortable talking about money and shy away from planning for the future: good or bad.

It is often thought that a “prenup” is reserved for the wealthy: families like the Rockefellers, or other entrepreneurs with deep pockets who are finally deciding to take the marital plunge. While, a prenuptial agreement is essential for those already with assets, it is even more essential for those who are about to come into a great deal of wealth, or work in a field where financial security fluctuates significantly year-to-year. By definition, a professional athlete’s career can go from non-existent to superstar success overnight and return to non-existent the very next day. It is a phenomenal and harsh reality with highs and lows many people will never experience. It is not an average 9 to 5 job and can be disastrous for couples who are not thoroughly prepared for the ride before tying the knot.

It is important for professional athletes of all levels to consider the importance of a prenup. Much like a thriving business owner, a professional athlete has likely worked to perfect his or her skills over a lifetime, so it is important to protect the benefits and fruits of their labor. From their spouse’s perspective, it is also equally important that their contributions to the marriage are respected and that they have financial security if the marriage comes to an end.

Recently, news came out that the reality TV star, Khloe Kardashian and NBA player, Lamar Odom are headed for divorce. The couple does have a prenup which protects Odom’s estate, valued at more than $30 million. Sources say the agreement provides for Khloe to receive maintenance from Odom, as well as access to a joint account (funded by Odom) to pay all expenses. The agreement also outlines exactly how much Khloe would receive in monthly support in the event of a divorce. Though the terms of the prenuptial agreement have not been made entirely public, one can only assume that Khloe and Lamar have had well-advised input from their respective attorneys in coming to the terms of their prenuptial agreement. This type of planning enables both parties to reduce the level of stress associated with separation and divorce by providing certainty about the future. With a properly drafted prenup, Lamar and Khloe should find comfort that they have taken control over important financial decisions and minimized the fear of a third party deciding their fate.
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October 10, 2013

Mediation in the Digital Age

by Deborah Hope Wayne

With new technology constantly emerging, general communication has become easier through Skype, WebEx, ooVoo, and numerous other video chat and conferencing programs. The legal profession has also seen the effects of newer technology, particularly through online mediation. Online mediation has its own set of benefits when the circumstances are right and the logistics of meeting in person are difficult due to the geographical locations of the participants.

While online mediation is becoming more common, it isn’t entirely new to the ADR landscape. Online mediation started over a decade ago, right about the time Skype was initially released to the public. Video communication has made it possible for individuals to conduct live meetings and conversations with people virtually anywhere in the world and still have the feel of face-to-face interaction. Online mediation is no different, and it also can provide for certain advantages to in-person mediation.

Although general online communications give users the ability to connect in real time to others, online mediation also provides parties with the ability to take time to form responses to parts of the mediation. The real-time element can still be present, but the mediation itself can be done in segments online, with parties taking time in-between sessions to think about issues that were raised by the other party or the mediator. This makes it possible for parties to not only take the time to formulate responses, but it also allows them to be in different geographic areas throughout the mediation process.

This brings us to the next advantage – location. Online mediation offers a unique benefit to both the parties and the mediator. Parties can be in entirely different locations and still have the ability to conduct an effective and efficient mediation.

The location advantage leads into benefits specific to the parties and to the mediator. The ability to be in a different physical location from the other party allows the parties to avoid what may be an uncomfortable confrontation. Although mediation is considered much less confrontational than litigation, it is still a form of dispute resolution. For certain people, conflict in general can be overly nerve-racking and stressful, so the ability to work toward a solution in one’s home or office can ease the stress.

The mediator can also benefit from the location advantage because it allows a practice to reach out to a larger area than just one city or region. It allows the mediator to focus more on the mediation process itself, rather than logistics and unnecessary stress. When parties reside or do business in distant areas, the mediation process can become more costly and difficult to coordinate. However, online mediation affords any party with an Internet connection the ability to resolve a conflict.
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September 5, 2013

Zeta-Jones and Douglas Split: A Mediator’s Take On Keeping The Kids Out Of The Rift

by Deborah Hope Wayne

The recent split between Catherine Zeta-Jones and Michael Douglas was a shock to many. Like any family, Zeta-Jones and Douglas are no strangers to challenge. They have weathered through Douglas’s throat cancer, his son’s legal struggles and ultimate 5-year jail sentence for dealing methamphetamine and cocaine, and Zeta-Jones’s struggle with Bipolar II Disorder. Despite the added stress of having all of their family issues played out in the spotlight, the Hollywood couple stood strong through thirteen years of what appeared to be a happy and loving marriage.

So what happens now? While still too early to tell whether their separation will ultimately end in divorce or reconciliation, it is not too early to talk about the kids. Though Zeta-Jones and Douglas reportedly have a pre-nuptial agreement discussing financial plans after a split, it is unclear if agreement considers child-related issues. If the prenuptial agreement does not discuss the issues of child support, custody, parenting, and decision-making, it’s time for Douglas and Zeta-Jones to find a good mediator to work out a Parenting Agreement. During this junction before a divorce and even before a separation, it is imperative a couple with minor children have a mutual agreement that lays out a plan to protect the children during this transitional period and continuing into the future.

Many day-to-day decisions involving the children can become devastating issues of contention between separating spouses. Where the children attend school, where will they live, whose family will the children spend the holidays with, who is paying for the kids’ school trip to the Nation’s Capital? These questions and many more were easily decided as a one unit household and seem simple enough to work out between spouses. Unfortunately, the quickest turn down the ugly divorce path tends to be over a dispute in regards to the children. Taking the simple step of sitting down with a professional mediator allows the couple to answer these looming questions, mutually work out an agreement to promote the best interest of the children, and ultimately avoid a future court battle. Furthermore, opting to have a mediator help with a Parenting Plan allows a separating couple to have more control over what goes into the plan, rather than leaving it to the court to decide.
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August 13, 2013

The Kitchen Table Divorce

by Deborah Hope Wayne

photo (2).JPG You and your spouse come to the realization that the relationship is no longer working for both of you. Whatever path you traveled to get to this point, whether it was a long and tumultuous journey or a clean and quick break, you are now faced with that word: divorce. Together, you both have figured out the general framework for who gets what, and taken care of assigning responsibility for payment of any debts, but may need help making sure that you have covered all of the details. You want to make sure the agreement you made at your kitchen table will be binding and that you understand all of the terms.

Neither of you wants to go through the grueling process and massive expense of litigation…and for what? You rent your home, you don’t have children or maybe they’re already out of the house. Does that mean you should navigate the divorce course on your own?

There is an approach which helps you to make sure you have covered all of the relevant details and that you have made a legally binding agreement. It’s called the “Kitchen Table” approach. It is an effective alternative to the expensive process of litigation, with the invaluable benefit of hiring a professional attorney-mediator with experience in divorce. This approach is generally for those couples who can amicably communicate face-to-face with each other about finances, support issues, and other fairly sensitive topics that come up during a divorce.

The “Kitchen Table” approach aims to keep the divorce process simple and amicable. It is essential to this process that you find an experienced attorney- mediator who you trust and with whom you feel comfortable discussing personal issues. After you have selected the right mediator, you and your spouse will meet with the mediator to review your informal agreement.
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June 28, 2013

Prenups are For Better (Not for Worse)

by Deborah Hope Wayne

look at the future couple.jpg Having an open and honest conversation with your fiancée about money may be uncomfortable, but it is an important discussion to have before marriage. It is especially important that a couple entering a marriage be open and honest with each other about finances. Individuals often have different financial styles, and open communication helps to establish a framework for managing different money styles in a productive way. One way to encourage open and honest communication between you and your fiancée before saying, “I do,” is by creating a prenuptial agreement (“prenup”).

A prenuptial agreement is a private agreement between two parties contemplating marriage. It is treated as a contract that is enforceable by the Courts. The couple arranges, in advance, financial matters in the event of divorce or death. Such matters include student or business loans, credit card debt, and support obligations. The couple may also want to address separate property issues, advanced degrees or licenses and/or businesses started before the marriage. The parties make full disclosure of their finances and with the help of an attorney representing each party, create a mutually agreeable plan that each party supports.

Preparing a prenup provides an excellent forum to engage in dialogue with your soon-to-be spouse about finances. The topic of money can be difficult to address, and often times we avoid the subject, leaving it for another day. Unfortunately, putting off these difficult conversations leaves a couple vulnerable to future negative consequences. Sharing your financial needs, concerns, and views up front with your fiancée places both of you in a better position in the long run. A family attorney or mediator can help facilitate a prenup negotiation, setting the stage for better communication about money, future plans, and many other topics, providing couples with a sense of security about how finances will be handled not only if the marriage dissolves, but if a conflict arises. Addressing your mutual wishes and terms in a prenups minimize the chance for adversarial proceedings or a long and painful court battle.
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May 7, 2013

Don’t Second Guess the Power of Second-Parent Adoption

by Deborah Hope Wayne

Artificial insemination can result in unexpected legal consequences depending on the marital status of the woman undergoing the procedure. It is important to understand the law as part of the decision making process.
Under New York Domestic Relations (DRL) § 73, a married woman can be artificially inseminated and her husband will be deemed the father of the child, even if the husband was not the sperm donor, so long as the married couple and the physician enter into a written agreement reflecting this arrangement. However, DRL § 73 only applies to married couples. As a result, an unmarried couple wishing to create a child through artificial insemination is presented with unique legal challenges. These challenges can create unfair results.
DRL § 70 allows either parent to seek guardianship or custody of the child. In Alison D. v. Virginia M., a landmark 1991 case that remains good law today, the Court of Appeals of New York held that “parent” under DRL § 70 refers only to the biological parent of the child and not the non-biological parent.
Therefore, the non-biological party in an unmarried couple is excluded from the automatic rights afforded to married parties under both § 70 and § 73 of the DRL. Moreover, in the event that the unmarried couple ends their relationship, the non-biological parent faces additional challenges if he or she wants to seek custody or visitation of the child.
Different legal devices are available to the non-biological parent. DRL § 110 provides that an unmarried individual, two unmarried individuals, or a married couple may adopt another person. New York also recognizes second-parent adoptions, as held by the Court of Appeals of New York in 1995’s Matter of Jacob. A second-parent adoption is where a second person petitions to adopt the child, even though the child already has one legal parent. A second-parent adoption does not affect the first parent’s rights to the child. For example, if a woman gives birth to a child as the result of artificial insemination, she is considered the child’s legal and biological parent. Under a second-parent adoption, the woman’s boyfriend, who is unrelated to the child, may adopt the child. A second-parent adoption confers the same parental rights and responsibilities on the boyfriend as the birth mother.
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