Zika Panic—Ethical and Legal Considerations for Clients Considering Gestational Carrier Agreements

Mary Vidas and Michelle Piscopo

One of the hottest topics in the Assisted Reproductive Technology (“ART”) community today is the Zika virus and its impact on gestational carrier agreements from both the standpoint of Intended Parents and Gestational Carriers. As has been widely publicized, the Zika virus has been directly linked to severe birth defects. While most gestational carrier agreements contain a provision regarding the right to terminate a pregnancy under certain circumstances, there is a debate on whether the agreements should contain more specific agreements to address the Zika virus.

Even if you determine that your agreement does not need to have a specific provision to terminate a pregnancy if the Gestational Carrier tests positive for Zika (because it is covered in a more general provision), there are other issues to consider. For example:

  • Travel Restrictions: The Intended Parents may want a provision that restricts the Gestational Carrier from traveling to areas where Zika cases have been confirmed. If you are going to include a travel restriction, the agreement should perhaps specify not only known areas but also a specific radius from known areas. Parties should look to the Centers for Disease Control and Prevention (“CDC”) and treating physicians for advice.
  • Removal from Zika Area: If the Gestational Carrier resides in a place where Zika cases have been confirmed or become confirmed during the pregnancy, the Intended Parents may want to require the Gestational Carrier to relocate. The agreement would then require additional provisions regarding the costs and additional payments to cover the relocation.
  • Testing Frequency: Given the potentially devastating effects on pregnancy, the parties may want to include a provision requiring the Gestational Carrier to be tested periodically after the Gestational Carrier may have been exposed to the Zika virus. The agreement could also potentially include specific provisions regarding the Gestational Carrier’s responsibility to report potential exposure. The parties may also want to include a provision requiring consultation with an infectious disease specialist.

Clearly, all of the foregoing examples carry with them the problem of not only the enforceability and damages related to Zika provisions in agreements, but ethical and moral issues.

Information regarding the Zika virus and its effects continues to develop. Parties should pay close attention to information and recommendations from the CDC and their treating physicians. Most importantly, Intended Parents and Gestational Carriers should share information, communicate, and agree on all relevant terms regarding this serious issue when negotiating an agreement.

Please contact a member of Blank Rome’s full service Matrimonial and Family Law practice group for further information regarding this topic and other family law issues.

The Many (and Expanding) Ways of Becoming A Legal Parent: Chapter Three

Caroline Krauss-Browne and Margaret Canby

Krauss-brownecanbyIn our last chapter, we discussed how a man, who has no biological or adoptive ties to the child, can be judicially declared the father in a child support proceeding; and, conversely, a man who is or may be a child’s actual biological father will usually not be permitted to compel a paternity test or otherwise assert paternity and intercede into an existing functioning parent-child relationship when a child is born into a marriage and the husband has been held out to the community and to the child as the child’s father and has formed a parental attachment with the child. Historically, the protection of children and their de facto parents for support purposes (even when no statute directed or even authorized the court to so act) has been founded upon the principles of equity.

If the Court’s equitable powers are used to protect a child’s best interests in the situations described above, then logic would dictate that these same equitable powers should be used to protect the children in all circumstances. Due to the biological impossibility of two women or two men having a child together and the high cost of adoption, there is a whole class of children who have de facto parent-child relationships which have been established with the consent and encouragement of the biological mother or adoptive father and which are deserving of legal protection. But they are not protected.

Why? Putting aside the question of overt prejudice, it is in part because the factual and legal inquiry has been centered on creating a litmus test based upon the mechanics of conception, which is a framework modeled on the heterosexual paradigm. Who is there; what is happening at that time; what documents are signed; what formalities are followed? Of course, for non-biological fathers adjudged through equitable estoppel to be parents, the question of who is present and what actually occurred at conception is overlooked by definition. He is not the biological father so he isn’t there at conception, obviously. So why does the law persist in focusing on that with regard to solemnizing the children brought into same-sex relationships when the “mechanics of conception” are so clearly very different for them? It is hard not to conclude that it is because of lingering assumptions and prejudices against the parents based upon their sexual orientation. We submit that such a focus is, sorry for the pun, “ill conceived” and dis-serves the many New York children of same-sex relationships.

New York’s highest court, the Court of Appeals, favors a “bright-line” rule, which (when interpreting the Domestic Relations Law section which authorizes a “parent” to initiate proceedings for custody and access) narrowly defines the word “parent” as those with a biological connection to a child or the means and ability to formally adopt the child. In other words, the courthouse doors are closed to everyone else, no matter the circumstances, even the circumstance when the mother actively created the parent-child relationship and led the child, the other parent and the entire community to believe they were a family. Equity provides no protection to these important relationships.

These children, who had no role in how they were brought into the world and who love and depend upon both of their mothers or both of their fathers for their physical and emotional development and well-being, just as the children of heterosexual relationships love and depend upon their parents, have been unfairly denied the protection of New York’s courts.

New York is in the minority, lagging behind Arizona, Arkansas, California, Colorado, Delaware, Florida, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, Washington, West Virginia and Wisconsin. These other States allow individuals who can prove that they have an established parent-child relationship which was fostered and encouraged by the biological or adoptive parent to then also prove that it would be in the child’s best interest to share custody of and access to the child.

Since the enactment of the Marriage Equality Act in New York, children of same-sex married couples should have the benefit of the presumption of legitimacy if born during the marriage (but not before). Prior to New York legalizing same-sex marriage, New York recognized same-sex unions performed in other states and provided children of those unions with the protection of the laws of the state in which the union was formed. Children who were born before same-sex marriage became the law of the land and children with de facto parents who choose not to marry (for whatever reason) are out of luck.

However, there is the possibility of an imminent change in the law. On June 2, 2016, the Court of Appeals heard argument on companion cases. The first, Estrellita A. v. Jennifer L.D., involves a biological mother who sought and received child support from her former lesbian partner, who had acted in the role as the child’s second mother. The non-biological, non-adoptive mother was judicially declared in a “paternity” proceeding brought by the biological mother to be a “parent” responsible for the payment of child support. When she then sought custody of and access to the child, the biological mother, invoking New York’s “bright-line” rule, argued that she was not a parent because of the lack of biological or adoptive ties to the child. The lower courts both held that the biological mother could not argue to one judge that there was a parental relationship and argue the opposite to another. This is the doctrine of judicial estoppel. In less legalistic terminology, the biological mother can’t be a hypocrite. At stake is the ability of this judicially-declared “parent” who pays child support to exercise custodial rights.

The authors are pro bono co-counsel with Lambda Legal Defense and Education Fund, Inc. and Le-Gal (The LGBT Bar Association of New York) representing Brooke Barone, the non-biological, non-adoptive mother in Matter of Brooke S. B. v. Elizabeth A. C.C. The attorney for the child is the appellant. At stake is the ability of a little boy to maintain a relationship with a woman he identifies as his mother. Ms. Barone and the boy’s biological mother, Elizabeth Cleland, met in 2006, made a home together and became engaged in hopes that they would marry as soon as it became legal for them to do so. Though not legally allowed to marry, the couple wanted to start their family immediately. They agreed that Ms. Cleland would carry the child, and she became pregnant in 2008 using an anonymous donor.

When their son was born, Ms. Barone was in the delivery room and even cut the newborn’s umbilical cord. The child was given Ms. Barone’s surname. Birth announcements were placed in the local newspaper listing both parties as the parents of the child. And, the women were held out as the parents of the child at his baptism. From the start, Ms. Barone fed their son, changed him, rocked him, bathed him, and took care of all the responsibilities a mother has to a baby. Ms. Barone was at every pre-natal and post-natal medical appointment and made medical decisions for the child. The child was enrolled in day care, school and child safety programs by Ms. Cleland, who listed Ms. Barone as the child’s parent. To his doctor, his day care, the pastor who baptized him and the entire community, Ms. Barone is one of his mothers. When the couple’s relationship ended in 2010, Ms. Barone continued to parent their son, sharing parenting time and alternating holidays (including Mother’s Day) with Ms. Cleland and provided for him financially for the following three years. In 2013, Ms. Cleland abruptly cut off contact between Ms. Barone and their son and Ms. Barone filed a petition for custody and visitation. The Family Court determined that its hands were tied based on controlling Court of Appeals “bright-line” rule and dismissed Ms. Barone’s petition. The appellate court affirmed the lower court decision. After the attorney for the child asked the Court of Appeals to hear the case, New York’s high court accepted review.

Counsel for the child and the non-biological mother were joined by many “friends of the court” in hoping to persuade the Court of Appeals to change how it defines who is a parent and allow equitable estoppel to be applied in cases in which a parental relationship has been encouraged and fostered by the biological mother, such that, years later, she cannot change her mind, deny parentage on a whim and inflict needless pain and suffering on the child, his de facto mother and extended family. The “bright-line” is a boundary line which unfairly discriminates against children of gay and lesbian families. It is time that the Courts of this State protect the children of these relationships and their de facto parents. We proudly and hopefully look forward to being able to say that we participated in bringing about this important change in the law and the extension of civil rights to the parents and children of same-sex relationships.

Blank Rome Encourages New York Court of Appeals to Safeguard Legal Bond Between Child and Non-Biological Mother

Caroline Krauss-Browne and Margaret Canby


Today, Blank Rome LLP and co-counsel argued before the New York State Court of Appeals on behalf of a non-biological lesbian mother, Brooke Barone, who is seeking shared parenting time and financial responsibility for a child she and her former same-sex partner, Elizabeth Cleland, planned for and raised together. The couple planned to marry but separated before the marriage equality law passed.

Partners Margaret Canby and Caroline Krauss-Browne lead the Blank Rome team representing Ms. Barone.

“Today, we aim to correct a terrible injustice. Our client, Brooke, must be equally recognized under law as a legal guardian to her son in the same manner as his biological mother,” said Ms. Canby. “This appeal was brought by the attorney appointed for the child based on his steadfast belief that the child longs for a reunion with his mother, Brooke. He argues, and we join him, that the failure to reunite this child with Brooke, based upon a 1991 judicial ruling – not a statute – that defines parenthood in an overly restrictive, outmoded, and discriminatory fashion, is against the child’s best interest and will do him substantial harm.”

Together with Lambda Legal and the LGBT Bar Association of Greater New York, Blank Rome represents Ms. Barone in her effort to continue to parent the six-year-old son she and Ms. Cleland planned to have together. The couple met in 2006, made a home together and became engaged in hopes that they would marry as soon as it became legal for them to do so in their home state of New York. Though not legally allowed to marry, the couple wanted to start their family immediately. They agreed that Ms. Cleland would carry the child, and she became pregnant in 2008 using an anonymous donor.

When their son was born, Ms. Barone was in the delivery room and even cut the newborn’s umbilical cord. They used Ms. Barone’s last name on birth certificate. Birth announcements were placed in the local newspaper listing both parties as the parents of the child. And, the women were held out as the parents of the child at his baptism. From the start, Ms. Barone fed their son, changed him, rocked him, bathed him, and took care of all the responsibilities a mother has to a baby. To his doctor, his day care, the pastor who baptized him, Ms. Barone is one of his mothers. When the couple’s relationship ended in 2010, Ms. Barone continued to parent their son and provided for him financially for the following three years.

In 2013, Ms. Cleland abruptly cut off contact between Ms. Barone and their son, requiring Ms. Barone to file for custody and visitation. The family court determined its hands were tied based on the high court’s decisions in 1991 in Alison D. and in a subsequent parenting case in 2010, Debra H. v. Janice R. The court dismissed Ms. Barone’s petition. The appellate court affirmed the lower court decision. After the attorney for the child asked the Court of Appeals to hear the case, New York’s high court accepted review.

Today, Blank Rome joined in arguing that the prevailing New York legal precedents do not account for the myriad ways that people make families, including same-sex couples, and that to consider non-biological parents “legal strangers” to the children they have cared for since birth is not in the best interest of these children. New York’s passage of the Marriage Equality Act and the U.S. Supreme Court’s 2015 marriage ruling in Obergefell v. Hodges call for greater respect for the families formed by same-sex couples and their recognition as full-fledged parents of their children.

Many prominent legal and child welfare experts have filed friend-of-the-court briefs on the side of Ms. Barone and her son, including the New York State Bar Association, the New York City Bar Association, the National Association of Social Workers, and 45 family law academics on the faculty of every law school in New York State.

In addition to Ms. Canby and Ms. Krauss-Browne of Blank Rome, who represent Ms. Barone on a pro bono basis, the legal team includes Susan Sommer of Lambda Legal and Brett Figlewski of the LGBT Bar Association of Greater New York. The child is represented by R. Thomas Rankin of Goodell & Rankin and Eric I. Wrubel, Linda Genero Sklaren and Alex R. Goldberg of Warshaw Burstein, LLP, who, along with Ms. Barone, also seek reversal of the decisions of the lower courts.

The case is Brooke S.B. v. Elizabeth C.C.

New York Court of Appeals to Safeguard

The Many (and Expanding) Ways of Becoming A Legal Parent: Chapter Two

Caroline Krauss-Browne and Margaret Canby


In Chapter One, we discussed the availability of single parent adoption, adoption by non-married couples, the presumption of legitimacy which is afforded to children conceived by assisted reproductive technology (ART) and borne to married heterosexual couples, and the inconsistent treatment of same-sex couples in similar circumstances.  In this chapter, we address whether a child is entitled to the security of legitimacy if the formalities required by the law conferring legitimacy are not strictly followed, how the law is evolving for same-sex spouses who conceive via ART, and how do the principles of equity impact who can become a legal parent in the context of ART and otherwise.

New York’s Domestic Relations Law (DRL) Section 73 provides that a child borne by means of artificial insemination performed by people authorized to practice medicine and with the formal, written consent of the woman and her husband and their physician “shall be deemed the legitimate, birth child” of the couple for all purposes.  In other words, in order to have both the biological parent and her spouse with no biological connection to the child presumed to be the legal parents of the child, there needs to be a doctor who performs the insemination and a notarized form signed by the doctor and both “parents” affirmatively stating that the non-biological spouse is for all purposes the other parent.

The problem with this well intentioned expansion of the legal ways to become a parent is — what happens if the formalities of clinical (and expensive) artificial insemination are not observed? What happens if the insemination was performed at home without a physician and/or without the formal, written, notarized consent of both spouses and their physician?  Without potential redress based upon more searching inquiry into the facts and circumstances surrounding the conception of a child, a single administrative oversight, nothing more than a paperwork defect, could void in one parent all rights and obligations in one fell swoop, possibly not to be discovered for many years of a functioning parent/child relationship unless and until the parents break up.

The unfairness of such a situation is glaring. Thus, an appellate court covering the greater Albany area ruled that DRL Section 73 is not intended to be the only path to legitimacy and the actions and intentions of the spouses have bearing on the outcome of legal parentage.  Therefore, a father couldn’t get out of support obligations because of a technical failure to perfectly comply with the formalities of the artificial insemination statute regarding the affidavit to be executed by the doctor and parents.

Add to that problem is how that issue is addressed in the same sex context. In 2011, the Marriage Equality Act (MEA) amended all statutes referring to husbands and wives to the extent required to make them gender neutral “spouses”.  As previously discussed, that did not stop one appellate court from discriminating against same-sex couples, rationalizing that, since it is not biologically possible for both parties in those cases to be the “birth” parents, the MEA did not change how we read and interpret DRL Section 73.  Are same-sex couples continually being denied the presumption of legitimacy despite the passage of the MEA?

As proof of the rapidly changing nature of how the New York courts are resolving these issues, since our last post, a second New York appellate court held that a child borne to a married woman is the legitimate child of both spouses irrespective of the gender of the spouses and the failure to comply with DRL Section 73 stating:  “[t]he record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California and, later, while legally married in the state.”  Seemingly straight forward, this is a radical statement given the state of the law in NY.

In that particular case, the biological mother commenced a separate legal proceeding seeking a declaration that the couple’s friend and sperm donor is the other parent of the children at issue (and not the other same-sex spouse).  She did this to position the children as already having two parents (a mother and a father) and to edge out her spouse as an unwanted interloper.  In addition to black letter law, common law and principles of equity were applied to fashion a remedy which was consistent with the parties’ intention at the time the children were conceived and born and advanced the best interests of the children; namely that the sperm donor (biological parent) was not the children’s legal parent and the biological mother’s spouse with no biological connection to the children was their legal parent.  In what seems the first such decision of its kind, the benefit to the child of continuing to be parented by its original two female parents won out over the implied policy, paramount for so long, that any chance for a child to gain a new father would prevail against and push out an existing second mother.

Are the principles of equity (fairness) applied in other situations where parentage is an issue?   Many people might be surprised to learn that men who are not the biological parent of a child can be “estopped” or precluded from legally repudiating paternity after a de facto parent-child relationship has been established.  Courts can and do direct non-biological non-adoptive adults who have assumed a parental role to pay child support, even if the parent-child relationship falters or when the biological father becomes known.  This is because, as a matter of public policy, it is in a child’s best interest to have the support of two parents.

That same “father”, who has no biological or adoptive ties to the child but who has been judicially declared the father in a child support proceeding initiated by the mother, has the right to assert claims of custody of and access to the child.  Interference with the parent-child bond is viewed as antithetical to the child’s best interests and, as a result, that non-biological, non-adoptive, judge-made father’s relationship with his child is deserving of legal protection.

Conversely, because a child born to a married woman (either the “old fashioned” way or by way of ART) is legally presumed to be the legitimate child of the husband and wife, when the husband has assumed the role of the child’s father, the husband has been held out to the community as the child’s father and the child believes that the husband is his or her father and has formed a parental attachment to him, another man who is or may be the actual biological father will usually not be permitted to compel a paternity test or otherwise assert paternity and intercede into the existing functioning parent-child relationship, thus, the “interloper father” is denied custodial and visitation rights.  The same principal drives this policy, to wit:  Interference with the child’s bond to the man he or she believes is his or her father and the peace and sanctity of the existing family is viewed as antithetical to the child’s best interests and deserving of legal protection.

Historically, the protection of children and their de facto parents for support purposes (even when no statute directed or even authorized the court to so act) has been founded upon the principles of equity.  Equitable estoppel – the power to “estop” a mother or father from asserting a legal right that he or she otherwise technically has but should not be allowed to assert because of the harm it would work on others — prevents non-biological parents from disavowing paternity and the responsibilities and benefits that come with it.  A bedrock of sound jurisprudence, estoppel is based upon principals of honesty and fair dealing and the prevention of fraud and injustice.

If the Court’s equitable powers are used to protect a child’s best interests in the situations described above, involving men who have de facto parent-child relationships with children to whom they have no biological or adoptive tie, then logic would dictate that these same equitable powers should be used to protect the children in all circumstances.  Due to the biological impossibility of two women and two men having a child together and the high cost of adoption, there is a whole class of children who have de facto parent-child relationships which have been established with the consent and encouragement of the biological mother or adoptive father and which are deserving of legal protection.  The answer to that question has historically been negative.  How is the law evolving?  We are on the cusp of what we hope and expect to be major changes in the law, which will be discussed in detail in our next chapter.

The Many (and Expanding) Ways of Becoming a Legal Parent: Chapter One

Caroline Krauss-Browne and Margaret Canby

Krauss-browne canbyWho is a parent? Who is not a parent? How do biology, marital status, assisted reproductive technologies (“ART”), availability of formal legal adoption, and sexual orientation figure into the calculus? Can the deliberate action of one parent create a second functional or de facto parent-child relationship in the absence of biological and adoptive ties? Should it? To what extent are the “rights” of biological parents given priority over children’s best interests when determining who will be called a child’s parent? This series of blog posts will summarize the current state of the law and the changes that are presently being urged before the New York courts when weighing whether to recognize parental rights to children who come into adult relationships in ways outside the traditional paths to parenthood.

We have entered a new age in which medical technology and expansive adoption rules have broadened the avenues in New York to becoming a parent beyond the traditional two: the biological “old fashioned” way by two opposite-sex parties who are married to each other or not, and the cumbersome, expensive, and deliberate adoption process by two opposite-sex married persons. In what is certainly a surprise to many people, listing a person’s name on a birth certificate as a parent does not, in and of itself, confer parental status. Problems and inconsistencies arise, especially when applying the existing rules, developed over years by fits and starts, to the new factual and legal landscape related to same-sex couples and their families.

When a child is born to a heterosexual couple as a result of sexual relations, if the heterosexual couple is married, the presumption of legitimacy applies to such child, and no further legal action needs to be taken for both parties to be presumed to have a biological relationship to the child and have equal parental status. If the adults are not married, a paternity case can be filed to establish that the male is the biological father of the child in question and parental rights and obligations, whether voluntarily assumed or not, ensue. Interesting wrinkles and variations upon this rule will be addressed in detail in a future post.

As ART evolved, providing couples the opportunity to have children when one or both of them suffer a biological impediment to doing so the “old fashioned” way, the assumptions about biological parentage conferred by marriage became more complicated. These complexities grew as we entered the age of recognizing the equal rights of same-sex couples to marry and raise families.

In some ways, the New York laws and the cases that interpret them that recognized legal parental status in a changing factual landscape, have been progressive in conferring a status with many rights and obligations and, in other ways, New York has lagged behind the changing times.

For example, New York’s adoption rules now allow for single individuals to adopt, for non-married couples to adopt (both opposite-sex and same-sex), for people who are not in a romantic relationship or shared household to adopt, and for a second person to adopt the biological or previously adopted child of the first person. When the adults seeking to establish a parenting relationship are aligned in their mutual interest to undertake the parenting relationship together, the courts have been liberal in granting the formation of that status, reflecting the public policy that creating more opportunities for legal parent-child relationships to form rather than less generates significantly better outcomes for children.

New York statutes specifically addressing the issue of ART in the conception of a child recognize that it is unfair to children conceived by ART within a marriage to require that the non-biological parent surmount extra legal hurdles for parental status to be created, such as requiring a second parent adoption before the obviously non-biological parent can assert parental status or have such status imposed upon him. The rule now provides for a document to be executed at the initiation of ART procedures, which provides that children born by ART into marriages are the legitimate “birth child” of the “husband” and “wife” for all purposes. But what happens when you have a situation with two “wives” or two “husbands”?

This rule was upheld by a Kings County (Brooklyn) Surrogates Court when a same-sex couple sought a second parent adoption for a child born to one of them during their marriage.  The court found a second adoption unnecessary given New York’s new marriage equality statute, because the presumption of legitimacy applied despite the fact that the statutory language refers to the child as the “legitimate child of both birth parents.” But the presumption of legitimacy has not been consistently applied to same-sex couples. For example, inexplicably and without a full recitation of the relevant facts, a New York appellate court recently held that the presumption of legitimacy did not apply to a same-sex couple for a child born during the marriage, stating that the presumption of legitimacy is only a rebuttable biological presumption of parenthood in the parent who did not give birth—which cannot be the case in a same-sex relationship—and not a legal presumption of parenthood. In seemingly cutting out all same-sex marriages from the presumption of legitimacy that has always attached to children born into marriages, this ruling begs the question of whether or not the old concern about the stigma of “illegitimacy” has been held to be less traumatic for a child, by at least some courts, than the “stigma” of having same-sex parents.

So what happens when the ART form isn’t properly signed or is somehow overlooked?  What if the use of donor genetic material to conceive is informal (via at home artificial insemination) or, as in the case of same sex-couples, a direct biological relationship to both parents, even when married, cannot (it seems) ever be assumed? What if the couple, heterosexual or otherwise, is not married? Can a different standard be applied to opposite-sex parties than to same-sex parties? Can such a different standard possibly pass constitutional muster? Stay tuned as these questions, which are at the very forefront of the emerging law on de facto parenting presently being litigated in New York’s top court, will be discussed in our next chapter.

Seven Ways to Help Your Client Prepare for a Divorce

Marilyn B. Chinitz and Lois J. Liberman

Marilyn B. Chinitz Lois J. LibermanYour client never entered into a prenuptial agreement and when there was a crisis impacting his marriage, he was unsuccessful in broaching the issue of a postnuptial agreement with his spouse. After years of frustration and riding the roller coaster of emotion, he’s finally ready to end his marriage and to ask his spouse for a divorce.

Before your client moves forward and announce his intentions, you should first take steps to arm him with necessary information (both financial and custodial related) to ensure that he’s in a position of strength when negotiating the finality of his marriage. Here are seven recommendations you should make:

1. Get Good Counsel

An essential step in this journey is to have an attorney who knows the law, has experience dealing with these sensitive matters and, most importantly, with whom your client feels comfortable. Whether your client’s been married for a year or twenty years, he must find an advocate who can help him make very important decisions not only impacting himself but also his children, someone who has the ability and temperament to negotiate a settlement and the skills to navigate through the court system, if necessary. Even if you think that your client and his spouse have resolved all of the necessary issues amongst themselves, he may have rights of which he may not be aware. Educate your client with more than one consultation both to get opinions regarding his rights and remedies and to see the attorneys’ different approaches to the issues to ensure that they’re a good fit for your client.

2. Do Your Financial Homework

What you need to piece together is what assets and liabilities were acquired by your client and his spouse during the course of the marriage. What sources of income do family live on? What are the family’s monthly expenses? Look for such documents in the household, such as tax returns, financial statements, bank and brokerage statements, mortgage statements, closing binders, credit card statements, insurance policies and estate planning documents, then copy, copy, copy these important papers.

3. Identify Valuables

Over the course of a marriage, your client may have accumulated important pieces of jewelry, paintings, antiques, rugs, furniture and collectibles. Make a list of such property and make videotapes of what’s located in the residence(s). Locate bills of sale and other evidence of purchases not only for proof of their existence and value but also for potential capital gains if such items are sold. Insurance riders are also helpful in this endeavor.

4. Claims of Separate Property

Separate Property is property that your client came into the marriage with, which was inherited by your client, distributed to your client through a trust or gifted to him (except gifts between spouses, which are marital property). Try to make a list of the items that would qualify as your client’s separate property in order to prevent his spouse from making a claim against such property.

5. What Type of Access Does Your Client (Or His Spouse) Have to Funds

It’s important to have access to funds, whether to hire an attorney or to ensure that your client has a safety net if the spigot of support gets turned off by an angry spouse. If your client has access to a joint account, transfer one-half of the value of the account to one titled solely in your client’s name to ensure that your client isn’t vulnerable to economic pressures. Moreover, if your client is the monied spouse, you want to ensure that your client’s spouse doesn’t attempt to transfer all of the funds that are in joint names into their own name to prevent your client access to funds to pay bills.

6. Speak to a Child Therapist (if there are children involved)

It’s essential to get the advice of a child psychologist regarding how your client and his spouse should tell the children about the divorce and obtain ideas as to how parental access should be shared based on the ages and issues facing your client’s children.

7. Same-Sex Marriage Considerations

Same-sex married couples may find themselves in a vulnerable situation if the parties were in a long-term relationship but were only married a short time. Without a prenuptial or postnuptial agreement expanding the definition of marital property or support obligations, they’ll be constrained to what the law provides both for equitable distribution and support in that short-term marriage. The Court may, under such circumstances and, as a matter of equity, compensate the non-titled spouse by providing a greater distribution of .

“Seven Ways to Help Your Client Prepare for a Divorce,” by Marilyn Chinitz and Lois Liberman was published inWealthManagement.com on September 14, 2015. Reprinted with permission. To view the article online, please click here.

A Potential Alternative to Divorce

Lois J. Liberman

Lois J. LibermanWhat should you do when a client comes to you looking for an alternative to divorce?  Consider recommending a postnuptial agreement. Postnuptial agreements are contracts signed after a couple is married which spell out the parties’ financial rights and obligations in the event of a divorce or death. By getting these financial questions settled, couples have more freedom to address the messier issues that are undermining the marriage. Such agreements are entered into when both parties actually have rights; unlike prenuptial agreements, which are contracts executed prior to the marriage when parties have no financial obligations to one another.

The issue of postnuptial agreements most often arises when an unfortunate event occurs that rocks the foundation of a marriage. Such crises may include incidents of infidelity, addiction, mental illness and financial troubles.  When such issues arise, one party will seek certain protective measures which can be afforded by the postnuptial agreement as an alternative to a divorce.  It’s fair and reasonable for an aggrieved spouse to seek financial protection through the distribution of assets and support before being asked to forgive and forget.  Moreover, it’s also rational for a party to want to insulate children and property from a spouse suffering from some sort of addiction or mental illness, especially if she wants to give her spouse the opportunity to get the help he/she needs without fear of jeopardizing assets and children’s safety if there isn’t a happy ending.  In these instances, a postnuptial agreement allows the family to focus on repairing the damage to the marital relationship without having to worry about distribution of assets, support and/or custody and parental access.

Sometimes the impetus for a postnuptial agreement is due to more positive circumstances, like an inheritance, entering a family business or other privately held business or acquiring an interest in a hedge fund or private equity firm.  Families who want to ensure that their wealth remains within the bloodline may require that a spouse waive any and all interests in the assets before bestowing such riches on the blood relative. Closely held businesses may have to turn over business records to forensic evaluators to determine their values due to the divorce of an owner. Most don’t want to endure such scrutiny if they can help it, especially if the valuation isn’t in sync with financial projections made to banks or investors.  Accordingly, such businesses may require an owner to enter into a postnuptial agreement with any non-owner spouse waiving any interest in the newly acquired business interest to ensure that the business isn’t into someone else’s drama.  As to individuals with a newly minted hedge fund or private equity interest, where valuations of such interests in a divorce can look a lot like telephone numbers, it makes financial sense to seek a postnuptial agreement limiting anticipated exposure.

In order to be enforceable, postnuptial agreements, must:

  • Be entered into voluntarily;
  • Not be one-sided and completely unfair;
  • Be the product of full and accurate disclosure by both spouses as to the assets, liabilities and income of both parties; and
  • Be the product of a negotiation in which each spouse was represented by an attorney of their choosing.

Postnuptial agreements also provide clarity for situations which may not have been discussed before the marriage. In light of the recent ruling in Obergefell v. Hodges, couples who may have raced to the alter overwhelmed with the excitement of finally being given the right to marry, without, perhaps, having given serious consideration to their respective financial situations, may, after the honeymoon is over, recognize that they should have discussed certain issues beforehand.

Ultimately, postnuptial agreements encourage couples to maintain continual dialogues about their finances, so that everyone knows what they have and what they can expect. By alleviating some of the stresses that can accompany financial uncertainty, such agreements can be extremely useful tools to help save a marriage.

“A Potential Alternative to Divorce” was published in WealthManagement.comon August 10, 2015. To read the article online, please click here.