A sunset clause is one that specifies a date or trigger event in which certain terms in the prenuptial agreement would expire. A common trigger event in a prenup’s sunset clause would be a specific anniversary, such as the couple’s 10^th wedding anniversary. The prenup can also be constructed in a way that specific terms of the agreement are “phased out” over time. The general idea is that as the marriage moves forward, the initial motivations behind inclusion of these specified terms may no longer apply. What works for a marriage of short duration may not seem fair for a marriage of long duration. Examples are waivers of spousal estate election rights and waivers of maintenance (spousal support) – especially in situations where a significant imbalance exists in the parties’ assets and finances.  Absent a significant difference in assets, the parties may still choose a sunset clause for their own reasons – such as the couple’s established commitment to the partnership.

Regardless of the couple’s motivation for including a sunset clause, it is important to understand the implications of how the sunset clause will be construed in the event of divorce. For example, if the sunset clause provides that certain provisions terminate upon the couple’s 10^th wedding anniversary, this means that those provisions are valid until the 10^th anniversary date. Typically, the sunset clause does not take effect if an action for divorce is commenced or if the couple has entered into a separation agreement.  The conditions and terms of the sunset clause offer options to address both partners’ concerns and are specific to the situation.  It can often help to break an impasse on a particular issue.

It is important to understand the implications that a sunset clause may have, as well as ensuring it properly reflects you and your partner’s goals. An experienced attorney is able to explore the various options in trying to meet each partner’s objectives and ensure that agreed upon terms are reflected correctly in the prenup.   A prenup is a binding contract that establishes the foundation for a marriage. From the outset, negotiations for a prenup need to focus on how each term impacts each partner and whether the terms continue to be fair and reasonable over the course of a long marriage.

In both the mediation and collaborative law processes, parents and the mediator or collaborative attorneys look at options that will help create stability and security in the newly structured family.  The goal is to consider the unique circumstances of each family and develop an effective co-parenting relationship. The goal is to have a structure in place for effective communication and cooperative decision-making.

Information relevant to an effective co-parenting plan includes the following:

1. Specific educational and/or medical needs of each child;
2. The children’s activities and related planning;
3. The regular weekly schedule and the schedule for birthdays, holidays and vacations;
4. How best to communicate and ensure that both parents are informed on issues regarding the children’s development;
5. Caretaking issues;
6. Cashflow and budgeting related to the Children’s expenses;
7. Parenting Plan Review.
8. Unique issues to the family.

For more information on effective co-parenting during and after separation and divorce please read the following article on my website entitled:  Because it is for the kids – Building a Secure Parenting Base After Separation.

Many people have heard of mediation as a means of dispute resolution, but when it comes to how the mediation process works, there are some myths and misconceptions. To help people understand how the mediation process works, I have compiled some common questions that people have when deciding on the process for their divorce.

How do I decide if mediation is right for me?

The best way to decide if mediation is the right process is to research mediators experienced in family and matrimonial law and request a consultation to discuss the process and address any questions you and your spouse or partner may have.  Many mediators offer a consultation at no charge as long as both parties attend.

Where are mediation sessions held?

Mediation sessions can be tailored to your own situation, but normally involve the parties meeting the mediator in a casual office-style setting. Mediators may also offer video conferencing and other online options.

Does my attorney attend the mediation session?

It is generally recommended to have a consulting attorney during the mediation process; however, attorneys do not usually attend the mediation sessions.  Attorney participation during the mediation session is based upon agreement by both parties.

How do I prepare for my first mediation session?

Once the parties have decided on the mediator, the mediator usually provides an agreement that sets forth the expectations of the process to ensure that the parties are fully informed about how the process works as well as the costs involved.  The mediator may also provide each party with a questionnaire to compile basic information as well as a financial statement of net worth to make sure all assets and debt are addressed.  The mediator uses the financial statement to help the parties decide what else may be needed to make decisions.

How long does the mediation process take?

This is one of the most common questions but does not have a “one size fits all” answer. While a major benefit of mediation is the efficient use of time compared to the court system, the length of time really depends on the issues to be discussed and resolved. While the mediator will help guide the discussion and keep things on track, there is no defined timeframe.

What if mediation doesn’t work?

When a case is appropriate for mediation and the parties commit to the process it usually results in a good faith negotiation and settlement. In the event the parties feel they have exhausted the process and are not able to reach an agreement, they still have the option to go through the court system for their divorce. In this case, it is important to understand that anything discussed during the mediation will remain confidential and will not be admissible in court.

While these questions represent some of the most common questions I receive, they in no way represent all the questions you may have about the mediation process. Further information is available on my website and by attending a mediation consultation.

The parents are able to communicate respectfully and positively in the process.

Divorce is a stressful and life-changing process regardless of the nature of the parents’ relationship. However, if divorcing parents are able to communicate in a respectful and cooperative manner, the process can produce a more durable and positive transition to a post-divorce co-parenting arrangement. In these situations, nesting arrangements can be very beneficial because in addition to allowing the children to essentially have “custody” of the family home, it also creates an environment where the parents are exhibiting a positive co-parenting relationship through the shared housing.

There are multiple children in the family.

If there are multiple children in the family, a nesting arrangement may provide positive structure and consistency for both the parents and children. Rather than each parent finding separate residences that can appropriately accommodate space for the children, allowing the children to maintain their current home (including bedrooms, living spaces, etc.) may allow for a smoother co-parenting experience and post-divorce family life. A nesting arrangement may also allow each parent a reasonable transition period to look for the right residence.

One or both parents will live in a different area post-divorce.

In a nesting arrangement, the children’s daily schedules will often maintain more consistency. For example, travel times to and from school and activities will remain the same, even if one or both parents is residing in a different town than the family home. While there is normally a set time period for the nesting arrangement, allowing the children to maintain their regular schedules after divorce can help create a positive transition for both the children and parents.

There is no immediate need to sell the family home.

Because a nesting arrangement requires at least two residences (and often three), the financial implications of such an arrangement is important for parents to consider. If the parents are in a situation in which the family home does not need to be sold immediately as part of the divorce process, nesting may be a viable solution for co-parenting. A nesting period may also allow the parents to consider whether the ultimately want to sell the family home or if one parent will remain in the home full-time at the conclusion of the nesting arrangement.

Nesting may provide additional benefits for families that are unique to their own specific circumstances and family dynamics. Your attorney can walk you through how a nesting arrangement may work after your divorce and the considerations you should keep in mind.

Like prenups, cohabitation agreements are intended to provide safeguards for each party in the event of a breakup. If this occurs, one party may be left with additional debt or liabilities in the absence of a cohabitation agreement. While laws surrounding unmarried couples’ rights differ by state (e.g., New York does not recognize common law marriage), cohabitation agreements may provide some security and benefit regardless of location. Below are some benefits to cohabitation agreements.

Outline each party’s financial obligations and responsibilities. As is often the case when living with someone, the line between each person’s finances and responsibilities, if any, may be blurred at times or inconsistent. In a cohabitation agreement, the parties may choose to outline how financial obligations will be shared related to the residence (or related expenses such as utilities).

Establish ownership/entitlement to the residence and fixtures. If you are purchasing a property together, ownership rights and responsibilities should be clearly outlined in advance by a written agreement and supported by how title to the property is held. If you move into a home that your partner owns, you will have no legal ownership to the property, regardless of any contributions made to the mortgage or related expenses unless there is a clear, written agreement signed and acknowledged with the appropriate formalities for a deed to be recorded. Parties may define ownership interests and entitlements in the cohabitation agreements so that if one person contributes his or her separate property to the acquisition or capital improvements, each party’s rights are clear if there is a breakup.  It is common for parties to purchase and share expenses related to furniture, appliances, or electronics. This can sometimes create issues upon a breakup. A cohabitation agreement can provide a plan for how these items will be split if there is a breakup. The agreement can alternatively provide a plan for one party to have first right of refusal to purchase the items from the other party, provided the parties can agree on the value.  This can be challenging on personal property items but allows for the opportunity.  Another option is to alternate the choice for any disputed items after a coin toss for the first pick or selling the property and splitting the proceeds in an agreed upon manner.

Reduce potential conflicts while living together. While the benefits outlined above apply when parties break up, they are also beneficial during the relationship and while the parties are living together. For example, having a clear picture of how rent/mortgage and utilities are split can reduce stress and friction because the parties have clear expectations outlined. Additionally, cohabitation agreements can include “lighter” topics such as quiet hours, general guidelines around overnight guests (such as family members or children from a prior relationship), etc. Perhaps one party has a job with demanding hours or responsibilities, in which case the agreement might include certain times of day as “quiet hours” to ensure the opportunity for rest. The parties may also want to clearly outline expectations and guidelines around having overnight guests, such as how many nights at a time someone can stay over, the party responsible for preparing the home for the guest, etc. Addressing these types of everyday items can help the parties build a respectful and open relationship.

Much like a prenup, a cohabitation agreement works best when tailored specifically for the parties seeking the agreement. Having open conversations about expectations and guidelines will help to create a durable agreement that makes sense for the parties.  Like any other contract, an experienced attorney should prepare the Cohabitation Agreement to make sure it is enforceable.

Consider Work and School Schedules.

Focusing on the parents’ actual schedules and availability each day of the week will facilitate a practical plan (as opposed to thinking about parenting in terms of a certain percentage of time).  For example, if a parent does not arrive home from work until 6:00 or 7:00, the parents need to address what happens between after school and the parent’s return time.  In dividing up the week, the parents also need to consider each child’s age and maturity level and how transitions between the two homes can be accomplished.  An on-line family calendar can be use or a schedule for the week/month can be posted on the refrigerator. As the children are able, they can learn to post their own events.

Consider the pick-up and drop-off locations.

The parenting arrangements should specify where and when each parent will pick up and drop off the children. Depending on the conflict level, the pick-ups and drop-offs can happen at the parents’ respective homes, or at the nesting residence if such agreement is in place. If this arrangement is not possible, or if other factors make this unreasonable, then a neutral location should be selected with the children’s comfort level and safety the priority.

Avoid having the children operate as middlemen or go-betweens.

Using the children as messengers can create discomfort and unnecessary pressure and responsibility for the children. The parents should agree on how and when they will communicate about the Children.  Some parents prefer a weekly email or text and some parents prefer a weekly or monthly phone call.  Having a communication schedule in place creates an opportunity to make sure both parents are fully aware of the Children’s development and any issues that may arise.

Mind your words and actions.

Parenting after divorce is an adjustment and can come with strong feelings. It is important to remember that everyone in the family is processing the divorce in his/her own way, and criticisms, negative comments, or other negative actions toward the other parent can put the children in uncomfortable situations. Perhaps one parent is late picking up the children or had to cancel at the last minute. Although this can be frustrating for a variety of reasons, airing grievances and feelings in front the of the children about this may have an effect on their own relationship with the parent.  This type of issue should be addressed outside of the presence of the children.  Scheduled co-parenting conferences provide an opportunity to discuss any issues that arise. Parents can be the best role models in a child’s life and this should be kept top of mind during the ups and downs of parenting.

Consider the children’s feelings and how they are adjusting.

Parenting after divorce is not only about creating a durable and practical plan, but also about creating a “new normal” for the children’s relationship with their parents. The change in time and frequency of time with each parent can be challenging for children, and any parenting plan should take this into account. Regardless of the parents’ current dynamic with one another, the children should be able to communicate to both parents when needed. This can be especially true when time is being spent in new environments.

Your parenting arrangement creates a foundation for the children’s stability and self-esteem.  Working cooperatively on a parenting plan fosters a positive relationship with both parents and that benefits the children.  For more information on process choices for co-parenting agreements, please visit my blog entitled: Putting the Children First: How the Collaborative Law and Mediation Process Can Help in Separation and Divorce.

A prenup is a healthy way to establish a balanced perspective and create equality in the decision-making process. It memorializes how separate property and marital property will be defined. Although New York Domestic Relations law determines property distribution in the event of divorce or death, courts will recognize a valid prenuptial agreement that may be different than New York law. Under New York Domestic Relations law, separate property is property acquired prior to the marriage; property acquired by inheritance (before or during the marriage); and by gift from a third party other than your spouse. You and your fiancé(é) can broaden the definition of separate property in a prenup. Many couples uniquely tailor what will be defined as separate property moving forward, modifying what is considered separate property under the law. Some concrete examples of provisions that can be uniquely tailored are:  a) what happens to property acquired during the marriage with separate property and held in joint names; b) what happens in the event of a divorce or death to a primary residence (or other residence) that is the separate property of one party; c) whether separate property will pass to the surviving spouse upon death despite its nature as separate property; and d) whether the surviving spouse has the right to continue to reside at the property and, if so, for what period of time and how the carrying costs will be paid.   Other couples address family business interests and/or how income earned during the marriage will be defined.

Here is a brief list of provisions that may be included in a prenup and tailored to meet the future spouses’ goals and needs:

• Defining separate property
• Defining marital property
• Retirement benefits accrued before/after the marriage date
• Procedures for filing tax returns, including allocating income and deductions
• Estate planning issues such as providing for children from a prior relationship or providing for family members from your family or origin
• Estate rights/Waiver of Estate Rights under applicable law
• Maintenance
• Agreements regarding the acquisition of a primary or other residence
• Agreements regarding a business established prior to marriage
• Agreements regarding income earned during the marriage
• Procedure for how to manage any future disagreements, such as with the help of a financial neutral or mediator

A key factor to consider in arriving at a prenuptial agreement is providing for enough time before the marriage date to compile financial information, engage in meaningful negotiations and have a careful review by independent attorney. An experienced attorney will provide advice and counsel on relevant law and the practical impact of your decisions. The law in this area is complex and you should consult with an experienced attorney about how your unique situation may be addressed in a prenup and under relevant law.

Often, regardless of income, a divorce impacts both parties’ financial circumstances. One or both parties may have uncertainty as the marital finances.  One party may be responsible for marital and/or child support or may find him/herself with less household income than was present during the marriage. In order to reach an appropriate settlement and ensure stability and security post-divorce, it is important to understand the details of household finances, assets and debts prior to divorce.

Each state has its own laws regarding assets for married couples. Your attorney can advise you as to how you and your spouse’s assets will be evaluated upon divorce.  Your attorney can also assist you in how to interpret applicable provisions of your pre/post-nuptial agreement if one has been executed. Your attorney or a certified financial planner can assist you in preparing a budget and post-divorce financial plan.

Completing a full statement of net worth allows an attorney to evaluate all expenses and income. This statement provides a useful summary of your financial affairs.  It provides a valuable snapshot of income coming into the household as well as how money is spent and how adjustments may be made after the divorce.  Most people use their credit card and bank statements to arrive at a monthly average for ongoing personal and household expenses.  It is important to be as accurate as possible as this information lays the foundation for discussions about support in that it helps to understand your needs moving forward.  Of course, it also provides information on the nature of assets so that negotiations are based on facts.  Information on assets includes checking and savings accounts, retirement and investment accounts, business and equity ownership and real property.  Compiling this information can be overwhelming and that is where an experienced professional can provide assistance. Having complete financial information facilitates a productive discussion about finances.

Once you have a complete financial picture, an experienced attorney will help you understand and decide:

• What you and your spouse own and owe
• The practical impact of your options
• Options for the distribution of your retirement, investment and business assets
• Options for maintenance and child support
• How best to divide your property, investments and other assets
• How to prepare and negotiate a settlement

Having an accurate picture of income and assets is crucial in dividing assets and determining a manageable financial plan post-divorce. Compiling information prior to the start of negotiations helps alleviate stress and helps to avoid positional bargaining.

The assumption by many individuals is that upon divorce, an ex-spouse is unable to claim social security spousal benefits. However, this may not be the case. As outlined on the Social Security Administration’s website, an ex-spouse is entitled to make a claim to the former spouse’s social security benefits. The marriage must have lasted at least ten years for the ex-spouse to be able to receive the benefits. Additionally, the ex-spouse seeking to receive the benefits must be unmarried and must be at least 62 years old. The ex-spouse seeking to receive the benefit also must be entitled to social security retirement or disability benefits. Also, the benefit that the ex-spouse is entitled to receive based on the other party’s work must be more than the benefit they would be entitled to receive based on their own work.

One of the most common misconceptions about social security benefits for divorced couples is that an ex-spouse may be able to influence the other spouse’s social security benefits. This is actually false. A claim for the benefits by an ex-spouse will have no impact on the other party’s benefits. Additionally, once a party remarries, the current spouse will also not be affected by the ex-spouse’s claim to benefits.

Another common misconception about social security benefits post-divorce is that an ex-spouse cannot receive benefits on the other party’s record if that party has not yet applied for retirement benefits. However, as long as the party is qualified for retirement benefits, the ex-spouse may still be able to receive the benefits as long as the parties have been divorced for at least two years.

With this information in mind, many individuals may still be hesitant to pursue a claim on an ex-spouse’s social security, especially if the parties are not in communication. However, there does not need to be approval or authorization by one ex-spouse in order for the other to make a claim to the benefits. The Social Security Administration may need information in order to locate the record, but the ex-spouse may not need to be contacted directly for the claim to be made.

Social security benefits may seem difficult to navigate, especially after a divorce. Your attorney may assist you in understanding how the process works and what you may be entitled to claim. In making the election for benefits, it is important to be informed about the options available.  Social security benefits are a valuable income stream that should not be ignored.

While some couples have chosen to adjust their wedding plans and are having virtual ceremonies for family and friends to attend via live stream or Zoom, others have opted to trim down the guest list and attempt to celebrate safely and socially distanced. For many couples, the best plan has been to postpone the wedding until a return to “normalcy.” For these couples, there may be a silver lining.

By postponing a wedding, a couple may have time to focus on their expectations about how their marriage will work from a financial perspective.  There is an opportunity to discuss each person’s philosophy about money and long-term issues that will impact the marriage.  I have worked with many couples that sought a prenup, but were concerned that the wedding was approaching too quickly for them to accomplish a comprehensive, durable agreement. While a post-nuptial may be created after the wedding which captures the couple’s intentions, many couples prefer to execute a prenuptial agreement and have it completed by their wedding day.

Couples now have an opportunity to discuss their thoughts on prenups and whether a prenup is a wise choice for them.  Prenups help avoid stressful situations because they help to clarify expectations about how the marriage will work and what happens in case of divorce or death. Some positive reasons for having a prenup are as follows:

• Clarifying financial rights and obligations
• Looking at finances before marriage helps create a foundation for good communication about how things will work
• Establishing property rights and distribution
• Protecting family property
• Protecting a family business
• Clarifying expectations regarding property acquired before marriage such as a house or apartment
• Keeping finances separate
• Protecting a spouse from the other’s debt
• Passing separate property to children
• Creating certainty about pets
• Establishing certainty about the use of social media
• Reducing conflict

A negotiated prenup is an opportunity for open and honest discussion.  It can serve as a platform to make informed choices in contemplation of a strong and loving relationship. If you are planning to get married, it is a smart way to plan for a safe and secure future.  For more information on prenups, please visit the prenup page of my website.