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Joy's Blog
Lately, I have had a few clients who have come to me asking for a prenuptial agreement because their parents insisted that they have one. Prenups used to be thought of only for the rich and famous. But they are becoming much more common, and are losing some of their stigma. When should you consider having a pre-nup? Here are some common examples when a pre-nup can be helpful. If:
- You are part of a family business, and you want to make sure the business stays in the family
- You have inherited money from your family and your relatives wants to make sure that it stays in the family
- You already have children, and you want to protect the financial resources available to them
- There is a big discrepancy in how much you and your fiance earn, and you want to put a cap on what alimony you may have to pay in the future.
- Your income is high now but you are in an industry where people generally retire when they are very young.
- You have a same-sex marriage that may or may not be recognized in another state.
But prenups don’t just protect the partner with more resources. They can also be useful to the “non-moneyed” spouse, when:
- You want to quit your career to have children, and want to make sure you will be financially secure so you can raise the kids.
- You want to make sure your spouse will leave you enough to continue living comfortably if s/he dies.
- You want to make sure that you will be financially protected in case of divorce.
- You want to protect your fiance from your student (or other) debt.
There is no doubt that the prenup process can be very stressful. We all grow up with significant messages and expectations around money, which we bring to the marriage. Planning a wedding is difficult enough, and doing a prenup at the same time can create conflict and add tension. But it can also be a time of clarification, of understanding, of listening. These will help you create an agreement that serves the particular needs of you and your fiance, and can give you both security as you embark on your new life together.
Mediation and collaborative law are both great processes to use when contemplating a prenuptial agreement, because they both give you a chance to clarify financial expectations, to communicate attitudes about spending, and to create a model for working together on solving problems together.
As the New York State Court of Appeals said, marriage is an economic partnership. Prenuptial agreements, if approached with sensitivity and compassion, can help clarify expectations, enhance communication, and get you off to a healthy start.
Posted in LGBT, collaborative process, divorce, marriage, mediation, negotiation, prenuptial
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Tagged children, collaborative process, common ground, compassion, conflict, family, gay, lesbian, LGBT, marriage
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Many people prepare financial statements in the process of getting divorced. This is a good time to look at all of your accounts, and to update your beneficiaries. After all, you might not want your ex to receive an unexpected gain in several years because you never got around to it. Common accounts that have beneficiary designations include:
- Life Insurance
- Retirement and IRA accounts
- Some brokerage or savings accounts
It is also a good time to update your estate planning documents. Take a look at your health care proxy (the person who will make health realted decisions for you if you are alive but cannot speak for yourself). And — very importantly — you power of attorney (designating someone who will manage your finances if you are alive but not able to manage them). If you don’t have them, now’s the time!
Who do you appoint in these positions? Someone who is smart and level headed, and whom you can trust to carry out your wishes — putting your needs in front of their own.
It is also a good time to reread your will — does it need to be changed? However, divorce agreements often provide provisions that may affect the will, so you might need to wait until the divorce agreement is signed before revising your will.
This is just one area of many cogs in the wheel that lead to your transition to being single again.
Well, this doesn’t happen every day! We’re quoted in Smart Money – a national magazine published by the Wall Street Journal.
I had quite a long talk with the reporter, Glenn Ruffenbach. He just used one idea from our discussion, but it is an important one – that disputes between siblings is a bit different because they don’t often have the opportunity (or the experience) to work on problem-solving together.
While other articles have focused on what elder mediation is, this one focuses on when to call an elder mediator.
Posted in elder mediation, elder mediation, families, mediation, probate mediation
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Tagged aging, caregiving, conflict, elder mediation, estate mediation, family, mediation, money
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I have spent the last week alone with my parents in their summer home in Cape Cod. It is hard to get around without driving here, and my brother and I decided that it would be better if one of us was here to do most of the driving.
And so I packed up my office (thank you, Dropbox!), brought my laptop, ordered some books, and prepared to be here for 2 weeks straight – something I haven’t done since childhood.
In a few days, my parents will celebrate their 60th anniversary. Their marriage has gone through many changes, but it’s been strong. Now they are, as my father said, “incredibly interdependent.” Mom depends on Dad’s ears, Dad depends on Mom’s ability to remember appointments. They have matching purple canes.
Being with them here is very different from the usual once a week back home in New York. I see their rhythms, their habits, their patterns … which has helped me figure out how to be there for them and how to be there for me as well. I leave for an hour to take a Zumba class. Or to write a will for a client. Or to make some phone calls. I am there to take Mom to the beach for our morning swim in Vineyard Sound. We buy fresh fish and cook it on the grill. I help them look for things they have lost. We go together to a community meeting to save our local beach.
There is a dance of meeting their needs and meeting my own. It’s not easy to do both.
But I am grateful for this time. And most grateful that I am able, in some small way, to thank my parents for meeting my needs when I was small, while meeting their own.
While parents may agree to share parenting time 50/50, there are a myriad ways to structure the schedule to meet your and your children’s needs. Younger children need shorter but more frequent time with each parent (switching, for instance, every 2-3 days), while it may be easier for older children to change less often, perhaps spending a week with each parent.
Having a predictable and structured schedule helps everyone manage their expectations, but it is also a good idea to try it and see how it works. Remember that children have different reactions to transitions!
Parents who share time equally must live close enough to each other that both can get the child back and forth to school.
Here are a few examples of parenting schedules that you might consider:
- One week with each parent, changing on Saturdays, but Tuesday evening (dinner or overnight) with the other parent.
- Monday and Tuesday with one parent, Wednesday and Thursday with the other, alternating weekends.
- Sunday to Tuesday night with one parent, Wednesday to Friday night with the other, alternating Saturdays.
- Alternating every 2 nights. (For this one, you have to block it out in advance because you won’t have the children on the same night each week.
Of course, there are many other considerations that must go into creating a good parenting plan, but these are a few creative examples.
Three articles have caught my eye this week, because I provide all 3 services. This is why I love my varied practice — all geared toward helping families through their many transiations!
The New York Law Journal published an article (in which I am featured!) by colleagues Ellie Wertheim and Abby Tolchinsky entitled Elder Mediation Addresses Range of Family Decisions, explaining that often, mediation can address important issues that the law cannot.
The New York Times article, If ‘Forever’ Doesn’t Work Out: The Same-Sex Prenup, addresses the practical usefulness of prenups for same-sex couples, especially in light of the complicated legal status of same sex marriages. (I wish they’d mentioned that mediation and collaborative process are particularly useful for the decision making process that leads to the creation of prenuptial agreements.)
And, finally, yesterday’s Op-Ed piece in the New York Times: Taking Responsibility for Death, which discusses the need for a health care proxy and living will. I find that this is one of the most difficult topics for clients to think about — even harder than writing a will — but also one of the most important.
You never know when the future will come.
Posted in LGBT, Uncategorized, children, divorce, elder mediation, elder mediation, estate planning, families, prenuptial
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Tagged collaborative process, common ground, elder mediation, family, health, lesbian, LGBT, mediation, planning, pre-nup
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There are several versions of the Children’s Bill of Rights in divorce that you can find on the internet. They are all helpful in focusing parents’ attention on the experience that their children might have – something that can get lost when parents are wrapped up in difficult emotions. The one I like best is offered by Dr. Robert Emery, an expert on children’s experience of divorce. He has done extensive research on divorce mediation. Here it is:
Every child whose parents divorce has:
- The right to love and be loved by both of your parents without feeling guilt or disapproval.
- The right to be protected from your parents’ anger with each other.
- The right to be kept out of the middle of your parents’ conflict, including the right not to pick sides, carry messages, or hear complaints about the other parent.
- The right not to have to choose one of your parents over the other.
- The right not to have to be responsible for the burden of either of your parents’ emotional problems.
- The right to know well in advance about important changes that will affect your life; for example, when one of your parents is going to move or get remarried.
- The right to reasonable financial support during your childhood and through your college years.
- The right to have feelings, to express your feelings, and to have both parents listen to how you feel.
- The right to have a life that is a close as possible to what it would have been if your parents stayed together.
- The right to be a kid.
Today I led a workshop for the Family & Divorce Mediation Council (of Greater NY) with fellow Board members Teresa Calabrese, Katie Cole and Mark Josephson on what the new law permitting same-sex marriage means in NY. On one hand, it is a huge victory and an important step in creating civil rights for LGBT couples. On the other hand, it is a legal tangle.
As of this writing, only 6 states (plus DC) issue marriage licenses to same sex couples. About 13 others have some kind of recognition, either civil unions or domestic partnerships. But the federal government, and many states (either by legislation or constitutional amendments) explicitly forbid the recognition of same sex marriage.
As stated in the last post, DOMA (the Defense of Marriage Act), does 2 things:
1) it prevents legally married same-sex couples from taking advantage of ANY federal benefits (so they can’t file federal tax returns together, can’t get Social Security or VA benefits from their spouses, etc), and
2) it explicitly allows states to refuse to honor same-sex marriages performed in other states.
So let’s say you have a married lesbian couple. They have to file taxes as “married” in NY, but cannot file taxes as “married” on their federal returns. If one works for the federal govt, the other can’t get health benefits. If they get divorced and one is paying alimony, she can’t deduct it on her income tax returns. In fact, she may have to pay gift tax! If she pays child support to a non-biological child, that may be considered a gift, as well, and she may not be able to claim that child as a deduction on her tax returns.
All of this is to say that while the passage of the law IS monumental, it is, at least until DOMA gets repealed, a logistical nightmare.
All the more reason to use mediation or collaborative process, both for pre-nups and divorces — both processes can focus on creative ways to address the needs of the parties and their children.
The papers have been rife with stories this week about New York’s new law allowing same-sex marriage. It couldn’t have come at a more poignant time – 2 days before Gay Pride day. People have described the mood there as unadulterated joy – one friend even told me, “I haven’t experienced anything like that since the March on Washington” — meaning the 1963 march in which Dr. Martin Luther King, Jr. gave his “I Have a Dream” speech. It is truly an historic moment.
The New York law, which will take effect on July 24, is a big step in the right direction, but it is still just a step. We still have far to go. Same-sex married couples are still ineligible for federal benefits because of the Defense of Marriage Act (DOMA). This clearly discriminatory as the New York Times adroitly explained in an editorial yesterday. The Respect For Marriage Act, which would overturn DOMA, has been introduced in Congress but has not yet passed.
After the expected surge of same-sex marriages, will there be much same-sex divorce? Probably. How will it be different for same-sex couples? For one thing, as John Schwartz pointed out yesterday, if they move out of New York, they might not be able to get divorced.
Clyde Haberman points out that, among other things, same-sex couples will still need 2nd parent adoptions, or else a married same-sex partner is still considered a legal stranger to the child.
A joint report from the Empire State Pride Agenda and the Human Rights Campaign lists 1,324 rights and responsibilities that go with marriage.
Many of the couples who are planning to marry soon have already been together for many years, perhaps raising children. So dividing up their assets and figuring out maintenance (alimony) if they divorce will be more complicated. At least the new NY maintenance law allows judges to consider that as a factor.
As always, the law must catch up with real life. In the meantime, mediation and collaborative process, useful for pre-nuptial agreements and divorce, continue to allow couples to be creative in shaping the law to fit their particular circumstance – gay or straight, kids or no kids, together for 25 years or 25 months.
There will be many things to untangle in the days ahead. Ordinary people will make history, simply by being themselves, by loving whom they love.
Posted in LGBT, Uncategorized, cultural competence, divorce, families, marriage, prenuptial
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Tagged children, common ground, custody, divorce, family, gay, hope, inclusivity, law, lesbian, LGBT, marriage
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Last night the NYS Senate approved our marriage equality bill, allowing same-sex couples to marry. This is historically significant in several respects:
- New York is the largest state to legalize same-sex marriage.
- New York is only the 6th state in the US to legalize same-sex marriage.
- This more than doubles the number of same-sex couples who can marry in their home state.
- Marriage has numerous benefits to families.
- The vote was largely the result of advocacy groups working overlooking their differences for a common goal.
- New York State lawmakers were able to overcome their differences, which have become paralyzing at times, to effectuate this.
- The bill includes religious exemptions.
- Credit also goes to Republican state senators like Steven Saland, who said, ” I have to find doing the right thing as treating all persons with equality, and that equality includes within the definition of marriage.”
- It shows the strength of Andrew Cuomo’s leadership and guidance.
- And perhaps most importantly, marriage equality is, as Julian Bond says, a civil rights issue.
And we can’t help noticing that the vote was passed on the eve of Gay Pride Weekend — let’s get the party started!
Posted in LGBT, cultural competence, families, marriage
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Tagged Andrew Cuomo, civil rights, common ground, family, gay, inclusivity, Julian Bond, lesbian, LGBT, marriage, New York
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Joy's Blog
