General NEWS/BLOGS ARCHIVE


DIVORCING? Get Your Power of Attorney in Place At the Start

October 11, 2018 by Kathryn Lazar

WHAT HAPPENS IF YOU BECOME INCAPACITATED DURING YOUR DIVORCE?

It is important at the outset of a divorce to sign (or change, if signed previously) a power of attorney and a health care proxy.

A power of attorney is a legal document appointing another to act as your agent, either generally or in particular areas described in the document. For example, your spouse may have power of attorney to make decisions relating to your brokerage or bank account, including emptying it. A health care proxy is a document under which a patient appoints an agent to make health-care decisions on behalf of the patient when s/he is incapable of making and executing certain medical decisions. For example, under a health care proxy, your spouse may be the one who makes decisions about your hospital care if you are in a coma, including whether or not to resuscitate you.

You may not want to be in a situation where, if you become ill or incapacitated during your divorce, your soon-to-be ex is the person you’ve designated to be in charge of important decisions affecting you financially and medically. If there is no power of attorney, by default the right to make those decisions goes to your spouse. If your ex-to-be is reasonable, s/he may stand aside and allow a family member to step in and make critical decisions. However, such deference may not be sufficient in the eyes of hospitals, banks, and others who must rely on the legal authority of the agent/decision maker. These institutions accept undocumented authority at their peril. If there is no power of attorney or if there is a dispute involving an incapacitated person, it may be necessary to go to court and file a guardianship proceeding to establish who will have legal authority to make decisions on that person’s behalf. The guardianship proceeding may create a gap in decision making authority, and, needless to say, distracts those involved at a time that is already stressful for them.

However, if you sign a new power of attorney and a health care proxy early on in the process of obtaining a separation or divorce from your spouse, then there can be no gaps in authority to make decisions in the event of your incapacity.

It is also important to understand that there can be differences in how a situation involving incapacity is handled in a litigated divorce as compared to a collaborative divorce. If you are in litigation, you may get no cooperation from your soon-to-be ex and his/her attorney, which can make things unnecessarily complicated and difficult, potentially causing a situation where necessary medical and financial decisions are delayed. In collaborative divorce, more likely than not your spouse and his/her attorney will be more helpful and cooperative. This could make all the difference if you become ill or incapacitated during your divorce.

We seek to educate our clients to take the rights steps from the beginning, in order to avoid any potential issues in the case of unlikely, but not impossible unfortunate circumstances. Be sure to discuss these issues with your attorney.

 

Tips for Discussing Prenuptial Agreements

October 9, 2018 by Brett Jones

TIMING IS EVERYTHING — OR IS IT?

 

This is part two of my two-part series on Prenuptial Agreement. Last month I posted about why a prenuptial agreement can be a good idea, and for whom. This post contains a few tips on how to raise the subject of a prenup with your soon-to-be spouse.

 

The early bird gets the worm. Recently Brittany Wong wrote an article for the Huffington Post in which she urges having the prenup conversation as early as possible — even before you’re engaged — because, she says, it’s delicate and uncomfortable.

 

A weird, heavy conversation. There’s no way around this, Wong continues. What usually works best, she writes, is the truth. For example: “My family and I have always discussed and agreed that if I or my brother every got married, we would sign a  prenup,” or “My best friend went through a horrible divorce and all he can remember from it is his lawyer saying, ‘If only you had signed a prenuptial agreement.’”

 

Prepare for the conversation. James Sexton, in a post you can read here, suggests it’s all about timing and that you should set the scene. Plan an occasion, he says, when you and your spouse-to-be are in a positive frame of mind and have the time and energy for an in-depth discussion.

 

Be straightforward. You want to be direct without being insensitive. Sexton counsels raising the idea of a prenup in a way that demonstrates you’re being clear-headed and sensible. That said, you probably don’t introduce the topic by saying, “I want a prenup.”

Instead, reassure your partner that your intention is to protect your respective financial interests, not just your own.

 

Be transparent. Often, Sexton writes, our thinking on the subject of a prenup is shaped by the experiences of our parents, siblings or friends. Share this context, he counsels, with your partner so s/he understands fully where you’re coming from. An example of this is given by Geoff Williams in an article cited in our previous post: one partner came from a family where her forebears had worked hard to invest in real estate, and her father was very clear with both her and her sister that he did not want these family homes to leave their family.

 

Be realistic. ALL marriages end, be it by death or divorce. A realistic prenup discussion acknowledges that, just as most people don’t want their estates being disposed of under state law in the absence of a will, it’s smart for couples to make post-marriage decisions together rather than ceding those outcomes to state law by default.  The two of you know more about your situation than the legislature, no matter how benevolent the elected officials. Also, as we pointed out in our previous post, 45-48% of marriages end in divorce. That’s reality, and willfully assuming you won’t be part of that statistic is denial. Again, Wong comes up with an example, quoting our colleague Katherine Miller from Westchester County. Instead of saying, “I can’t marry you until we have a prenup,” try reframing it this way: “At the end of our marriage, whether it ends in death, as we anticipate, or divorce, what would be most important to you and how would you like to be treated?” Then, she continues, ask your partner if s/he would be open to hearing what would be most important to you in each case.

 

Emphasize how much headache you’ll be saving yourselves later.  Wong’s point ties in to the divorce rate statistics stated above. You don’t having to be a betting man or woman to see the odds are about even, so this premise is far from extreme. Emphasize, Wong says, that “a prenup will simplify a divorce and make it quicker, less expensive and less emotionally taxing,” and “will benefit both you and your fiance(e) and any future children.”

 

An opportunity to discuss expectations. You and your partner may, Sexton says, be surprised at the extent to which you share similar concerns. What will your respective lives look like post-marriage? The “monied spouse” may fear being taken advantage of; the non-monied spouse may fear being left without means. Understanding each other’s perspective supports problem solving and decreases uncertainty.

Listen. Listening is perhaps the greatest gift one human being can give another.  We have two ears and only one mouth for a reason!

 

Don’t get angry. Sexton warns that you may not get the response you want. Surprise, surprise. It goes without saying that we cannot predict, let alone guarantee, how someone else will respond to us or topics we raise. As stated above, being realistic is key.

 

Suggest that you co-create the agreement. Both partners, Wong says, should be active in drafting the prenup.    I agree with this, and the couple has a number of options to achieve this co-created agreement.  A couple can work with a mediator, or the couple can each hire a Collaboratively trained attorney to all work together.  In the collaborative setting, we at times will also bring in an estate planning professional or such other professionals as we all agree are needed to make the best agreement possible. The other alternative is also that one half of the couple has an attorney prepare the agreement  and the other person has the opportunity to have the agreement reviewed by an attorney of their choosing.   

 

Be prepared to try again. If you truly believe you’re a good candidate for a prenup — or better yet, if you believe you both are — don’t give up if the subject doesn’t land well on the first attempt. Instead, give your partner time and space to evaluate your points.

 

Have faith and be honest. Sexton states this simple truth: if you’re marrying this person, the two of you need to be able to have a difficult conversation. Not only may you discover similarities in your respective concerns, but you may find that you can be scared or upset and still be very much in love. Wong writes to like effect: “This is, after all, a person you love and want to marry.” Keeping that in mind, she says your “words and deeds will result in you coming up with an agreement that works for both of you.”

 

Entering into a Prenuptial Agreement can be the best financial decision a couple can make together.

 

At the end of the day, if a soon-to-be spouse will not agree to a Prenuptial Agreement, is there still something that can be done by one or both soon-to-be spouses to protect assets, protect children, address their own estate planning and financial planning concerns and needs? Yes, there is a certain amount of planning that can be done without having a Prenuptial Agreement.   You can make an appointment with me or one of the other attorneys at Lazar and Schwartz for a strategic planning meeting. We can discuss the law in the case of divorce or death and options on addressing your concerns and financial planning on your own during the marriage even without a Prenuptial Agreement.

 

Prenuptial Agreements

October 9, 2018 by Brett Jones

What Should I Consider in Deciding Whether I Want a  Prenuptial Agreement

 

This month I’ll begin a two-part series on the subject of prenuptial agreements. This first post will explain why they might be a good idea and in what circumstances. Next month I’ll share some tips on how to bring up this possibly sensitive subject with your spouse-to-be.

 

In the last 20 years there’s been a 500% increase in the number of prenups in the United States, according to Kelli Grant of CNBC (Grant’s source is Arlene Dubin, a Manhattan matrimonial lawyer. You can read her post here.) The reasons for the increase are not limited to wealth, which historically was and continues to be a driver.

 

There are a number of considerations when deciding whether or not to have a Prenuptial Agreement, some of the considerations a briefly described below.

 

First-  What is a Prenuptial Agreement?   You may think you know, but do you really?

It is an agreement entered into by a couple before they get married, that if properly drafted and executed, and if you marry, will be an enforceable contract upon the occurrence of  separation or divorce, or death. A prenuptial agreement allows a couple to identify their assets and liabilities that exist upon entering a marriage for which the couple makes their own rules as to how they want their assets (both those that accumulated prior to the marriage and those accumulated during the marriage) to be divided upon divorce and death.   A prenuptial agreement can also detail the couple’s intentions about financial responsibilities during the marriage, as well address their respective obligations (if any) for support of one another upon the occurrence of a separation or divorce.

 

For some couples, a prenuptial agreement can be viewed as a tool for financial planning and estate planning for themselves and their family, including children from a prior relationship.   When I refer to financial planning, this means that that the couple can use a prenuptial agreement to make very clear what each of their financial expectations and financial obligations are to be during the marriage, for retirement planning, and upon death.  For example, the couple may want to make clear how they expect their monthly bills to be paid for their home or any other property they have. A couple may want to acknowledge that a spouse-to-be has a child support obligation another and how that will be paid during the marriage, and if they subsequently separate or divorce, how if at all (regardless of what the law provides) such support payments will be considered in the separation.   A prenuptial agreement can also be used for estate planning purposes for example, the couple can set forth their expectations for retirement planning and how they each wish for their assets to be distributed upon the death of either of them.

 

Children from Prior Relationships/Blended Families:  A prenuptial agreement is needed if you want to be sure that upon your death, some portion of your estate will go to those children rather than your surviving spouse, and this can be set forth in detail in a prenuptial agreement.  We will also work with you to be sure that you have the necessary Will (maybe a Trust) in place to that will be needed in conjunction with the prenuptial agreement upon your death to protect the interests of your children.

 

Business Interests:  If you work for a start-up business, or have any business interests, including  in which you hold stock or stock options, those may be harder to value if not publicly traded. A prenup can prescribe what valuation method will be used in event of divorce. As described in our post of March 22, 2016, the method used to value business interests can be a huge issue in divorce and very costly.  

 

People marry older than before. If you marry soon after high school or college, chances are the assets you bring to the marriage are not substantial; indeed, what you bring may be mostly educational or other debt. However, the age at which people marry is rising (women 29 years and men 31, on average in 2013) and as a result, according to Dubin, by the time people marry, they do have some assets. Geoffrey Williams, in a 2013 Huffington Post article you can read here, says the primary goal of most prenups is keeping separate property separate. (Please see prior blog posts which explain the difference between separate property and marital property.)

 

Substantial debt. As indicated above, educational debt is huge, more than credit cards and car loans, according to Grant. Identifying liabilities can be as important as identifying assets if you want the debt your spouse brings to the marriage to be his or her responsibility in divorce.

 

Reproductive rights. Nearly half a million embryos were in storage in 2015, Grant writes. A prenup can clarify who has rights to embryos, an issue that couples may wish to anticipate, even though you both hope it never becomes an issue.

 

Social media. You’ve read, or at least read about, revenge porn. In this day of social media, information about you that you might want to keep private can be published widely, to your detriment. A prenup can spell out confidentiality in divorce, protecting not just personal privacy, but business interests and reputation, Grant says.

 

Anticipated Inheritance:  If either spouse-to-be anticipates an inheritance that they want to protect 100% if the couple was ever to separate or divorce, or upon death if you want to be able to direct your assets in a way that may be different from what the law provides, then you should consider a prenuptial agreement.

 

So who needs a prenup? Williams quotes Anton Abramowitz, then president of the American Academy of Matrimonial Lawyers, saying that spouses with marital estates valued under $200,000 probably don’t need one.  I don’t necessarily agree with that opinion. If you have assets you want to protect, if you have children you want to protect, if you want to write your own rules as a couple, rather than be bound by New York State Law as to the disposition of assets and credits upon a separation or divorce or upon death, than you should consider a prenuptial agreement.  There’s much more to a prenuptial agreement than just the couple’s earnings and current estate value. Williams also identifies people who are marrying with children from a previous marriage as good prenup candidates.

 

It’s not something we enjoy thinking about, but 40-50% of marriages end in divorce, according to the American Psychological Association. Your chances of staying married until death are therefore 50-60%. The odds are almost equal. So why take a chance? What do you and your intended want to say now about your needs and wants if you decide to split? Dealing with these questions up front can limit the questions that have to be answered later, and can limit the costs incurred upon separation and the length of the divorce process.

 

This may go without saying, but I am going to say it anyway.  The number of same-sex marriages are on the rise, and same-sex couples will have the same considerations as to whether a prenuptial agreement may be right for them.

 

If you’re a logical candidate for a prenup, read next month’s post, where I’ll share some tips on how to raise the subject if you think it may be difficult.

 

 

Divorce Consultation

October 9, 2018 by Brett Jones

DO I HAVE TO GET DIVORCED IF I CONSULT WITH A DIVORCE ATTORNEY? 

NO, BUT A CONSULTATION IS ALMOST ALWAYS AN ADVANTAGE

You’re thinking about divorce, a big decision.  One of the biggest decisions a person will ever make.  A big decision on many levels, not the least of which is, what should I consider, where should I start and should I talk with a lawyer? Your mind is teeming with questions. You ask yourself: Once I consult with a divorce attorney, am I committed to getting divorced? And am I committed to hire that that attorney?

 

The answer is no to both. At our firm, we explain to clients that a consultation is not a commitment to take any action to separate or divorce, but can provide people with  a  clear framework in which to think about the future of their marriage and their own individual future, information we believe is critical to making the decision whether to move forward towards dissolving the marriage.

 

A consultation can be one of the most important meetings that you have in considering whether or not to divorce. The consultation is not a lawyer’s chance to impress you or market legal services to you or give you partial information. (although there are many attorneys who think so)  It is an opportunity to be of service to you, for law is a service business. The lawyer you meet with for your consultation can be most helpful to you if s/he gives you all of the information you need.   I view the consultation as an educational opportunity or information gathering opportunity and it may be useful for you to think it about it that way as well.  I want to provide as much information as possible for you to consider.  This often may include but is not limited to what a separation or divorce may look like for you and your family on a number of levels – what the process options are to achieve a separation; what the law provides with respect to the division of your  assets and liabilities, support and co-parenting;  financial considerations both in the short term and long term; emotional considerations; what this could mean for your children; how timing may be important in when and if you wish to start a divorce process; potential tax implications; and the potential for strategic planning if a delay in moving forward may be beneficial.   If your spouse has already had an attorney send you a letter or served you with papers, then we would examine the options and your next steps.

 

You should go to your consultation with a list of all your questions. The lawyer you consult with will have questions as well. Be entirely truthful, even if you believe the truth is not beneficial or advantageous to you.

 

How you use the information from your consultation is up to you, but could make all the difference for you and your family now and in the future.   You arranged for the consultation; you paid for the consultation; what you do is your decision. No lawyer should alone make your decisions for you.  If you decide to divorce, or delay, or do nothing, that’s your call. Your consultation  should give you  options and the information you need to thoroughly, thoughtfully, and responsibly think about the situation.

 

Kathryn Lazar International Collaborative Divorce Trainer

September 26, 2018 by Kathryn Lazar

Kathryn Lazar  has had the pleasure of speaking internationally to collaborative divorce groups on several occasions.  Kathryn has made numerous presentations to the International Academy of Collaborative Practice on more than  ten occasions, including Vancouver BC, Las Vegas, Nevada, San Antonio, Washington D.C. and many others.  Kathryn presented a workshop at the 5th European Collaborative Practice Conference, entitled “Beyond Words”,  held in Amsterdam on May 26 – 28, 2016. Along with co-presenters Micki McWade, L.C.S.W., and Jessica Lazar, M.A., Psy.D. candidate, advanced topics in collaborative divorce practice were explored during the weekend long conference. Divorce practitioners from all over Europe attended this conference to increase their competency in the collaborative divorce practice. Kathryn also presented at the 4th European Collaborative Practice Conference in Edinburgh, Scotland in 2012.  If you are part of an organization that would like either introductory or advanced training in Collaborative Practice, consider talking with Kathryn about presenting that training.  Call our office to set up a discussion about training – 845-896-9651.

 

BUSINESS OWNERS AND DIVORCE: Valuing a Business in Divorce

August 1, 2018 by Kathryn Lazar

CONTROLLING COST AND CONTENTION AROUND EXPERT APPRAISALS

When your divorce involves a business owned by you or your spouse, or you and your spouse, the value of the business will most likely figure in the divorce. If you and your spouse disagree on the value of the business (which is often the case when one of you is buying the other out or when one spouse is to be paid a portion of the business’s value), the disputed value may be resolved by engaging a third party expert to calculate what the business is worth. This is called appraisal. Appraisal methods are several; these alternatives are themselves the subjects of many articles (Google “different ways to value a business”). This post focuses not on appraisal methodologies, but on ways divorcing parties can commission a fair appraisal in a way that is economical.

A scenario to be avoided is “expert opinion versus expert opinion,” where each of the parties in a litigated divorce hires an appraiser, the resulting appraisals are materially discrepant, and each appraiser must testify to explain his/her calculation. This can be avoided by hiring one appraiser who meets with both spouses to understand the perspective of each. Critical in this approach is to oblige the appraiser to be neutral, not favoring either party. This reduces conflict, stress and expense.

Another way divorcing parties can control expense is by choosing the type of report they want from the appraiser. Oral reports typically cost less than written reports.

Before starting work, the appraiser should be available to sit down with the parties and their lawyers to discuss any concerns they may have. Such concerns might include the valuation method to be used — one method might be more appropriate than another for a particular business — and any special considerations that might affect value.

The above approach can be implemented in a litigated divorce but is more common in a collaborative or mediated divorce, where the parties’ objective is to find a mutually acceptable result. What is more, appraisers generally charge less for their work in a collaborative or mediated divorce because they know that they will not be called upon to testify in court, which is very time consuming.

 

DON’T BELIEVE RADIO ADVERTISING: Divorce Mediation Faster, Safe, Costs Less than Litigation

July 15, 2018 by Kathryn Lazar

Some lawyers, trying to secure more divorce clients, trash mediation in their radio ads. Contrary to these advertisement’s claims, mediation frequently results in a better understanding of dispute issues and legally binding agreements, at less emotional and financial cost than litigation.

Mediation uses an impartial third-party to help people discuss their disputes, decide next steps and come up with solutions. Mediation is increasingly considered the appropriate dispute resolution process due to its cost-effectiveness, efficiency and ability to help people make decisions while resolving conflict constructively.  Individual mediation clients can confer with a lawyer to get any individual legal advice they feel they need, while they are going through the mediation process.

In our divorce mediation cases, we find that over 90% of the couples are able to come to a mutually acceptable agreement, spending less than half the time and money  they would have spent if they hired separate lawyers to negotiate or fight it out.  Consider it as a possibility.

If you are interested, you and your spouse would meet with one of our divorce mediators in a consultation to learn more and decide whether this is the right course of action for you to take.  If you are interested, call us at 845-896-9651 to set up a mediation consultation.

 

 

CUSTODY: Trying to work out parenting plan works in your favor

May 10, 2018 by Kathryn Lazar

CUSTODY ARRANGEMENTS:  BEING ACCOMMODATING WHEN CHOOSING YOUR PARENTING PLAN DOESN’T PREJUDICE YOUR RIGHTS IN LITIGATION

 

A mediation colleague recently blogged about the advantages of  mediation over litigated divorce in working out the right parenting plan for your child or children. One advantage of mediation (which advantage is also present in collaborative divorce cases) is that couples can test tentative parenting plans –  meaning, they can try out one arrangement, see how it works, and tweak it to best meet the needs of their children.  Because, in mediation, the couple controls the process, they can space out their meetings to allow for this testing, and then adjust the agreement accordingly.   The author also points out that, should spouses end up in litigation rather than at the mediation table, they don’t prejudice their rights in litigation by having been accommodating and working together amicably on their parenting plan. http://www.susan-ingram.com/2016/01/finding-the-parenting-plan-that-is-the-right-fit/

This might surprise people who haven’t been in the court:  Judges respect parents who are willing to support the relationship between the other parent and the child.  There are many court decisions in which the accommodating parent has an advantage over the more difficult parent.  The Court’s perspective is fairly child-focussed; the Judges often state that the children are entitled to the love and affection of both parents, and take into consideration any acts in which either parent is interfering with the child’s connection with the other parent.  In fact, most custody cases are won because of the positive attributes of one parent over the other, not the negative things people say about the other. If you are concerned about custody and visitation issues,  please raise all your concerns with your lawyer — we have a lot of experience dealing with these kinds of cases, and can help you understand the best approach to protecting your children’s interests. 

 

Free Divorce Options Presentation Begin July 2018

May 1, 2018 by Kathryn Lazar

What happens if I get divorced?  How does the divorce process work?  Will I have enough money to support myself and my children?  Will I get to be with my children?  How does custody and visitation work?  What will happen to my house if we get divorced?  What will happen to my business in divorce?  Retirement?  Stock?  Stock Options?

We know that people need a lot of information before deciding whether to leave their marriage and how to go about it.  While there is no substitute for a personal consultation that is focused on your particular situation, if you are looking for general information, the lawyers in our office provide an informational program in odd numbered  months on the second Thursday at 4 pm – 5 pm.    The program is entitled “Divorce Options”, and consists of a general presentation by one of the attorneys in the office on the way divorce and separation works.

If you or  anyone you know  could benefit from understanding the  choices – kitchen table, mediation, collaboration and litigation, please join us.   Coming to one of our workshops does NOT constitute a consultation, and individual legal questions cannot be addressed, but we will explain all of your choices and answer general questions.  We will also be available to set up a private consultation at a later time, if that seems appropriate.

Call us at 845-896-9651 if you would like to attend or if you want an individual consultation.  Our 2018 events are scheduled for July 12, September 13, and November 8 at our office, 280 Route 82, Hopewell Junction, New York, located on Route 82 half way between Fishkill and Hopewell Junction.

 

Spousal Maintenance & Child Support Calculator

May 1, 2018 by Kathryn Lazar

New York has developed formulas for both child support and spousal support.  Although these formulas are “presumptive” — meaning that the Court is supposed to order these amounts in most cases, the law also provides that the Court can make exceptions to the general rule if persuaded that it would be appropriate to do so.

You can easily figure out what the presumptive support is in your situation, if you have the most recently filed tax returns.  Two good websites for getting this information are:

https://www.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml

and http://www.joyrosenthal.com/new-york-maintenance-child-support-calculator/

By inserting you and your partner’s income and the number of children you have, you can find out how much child support and how much spousal support (called maintenance) the Court would presumptively award to you.

For more information about how the child support and spousal support laws might affect you, make an appointment for a consultation with one of our lawyers by calling 845-896-9651.