October 24, 2022 – Morgan Fraser Mouchette is quoted in this Shondaland article about how to talk finances with your fiancé, spouse, partner, or loved one when money matters can make or break a relationship.
October 19, 2022 – Stacy D. Phillips published this first article of three on the topic of addiction in relationships in her new LinkedIn “Up Close and Personal” series. In this ongoing series, she will share candid experiences, tips, and advice from her personal and professional life.
This edition highlights a very special Matrimonial & Family Law colleague in our New York Office: Sheila G. Riesel.
I have known Sheila for many, many years as she was a partner at my grandfather’s and my father’s law firm in New York, Phillips Nizer. She followed my career as I graduated from Columbia Law School, worked as a summer intern in the U.S. District Court in New York, moved to Southern California, and eventually launched my own family law firm. Sheila landed at Blank Rome following a merger in 2000. She called me in 2009 when she learned the firm was opening a Los Angeles office. Because of my respect for her, I seriously considered the prospect of joining Blank Rome, but the timing was not yet right. However, Sheila planted a seed with me that lay dormant for a few years but eventually sprouted when I joined Blank Rome in 2016. For that, and for her abundant calmness, wisdom, and caring, I will always be grateful to her!
Sheila practices in all areas of matrimonial law including pre-and-post nuptial agreements; separation agreements; actions for divorce, custody, and equitable distribution; and complex valuation and custody disputes. “The essence of what I do is to help my clients through one of the hardest experiences of their lives,” says Sheila. “For me, helping people is the most gratifying part of my job.”
She has represented clients in the entertainment industry, including Woody Allen, Al Pacino, Tom Cruise, Howard Stern, Geraldo Rivera, and Alec Baldwin, former New York Governor Eliot Spitzer, and hedge fund and financial institution c-suite executives.
Sheila is a proponent of an early consultation and being informed, which she believes will alleviate fear. “Information is power.” Significant decisions in a marriage with problems, like changing jobs or purchasing or renovating a home, can have a major impact if the couple then divorces. New York is an equitable distribution jurisdiction, which means that, without a pre-nuptial agreement, any asset acquired during a marriage is subject to “equitable division” upon divorce. In New York, “equitable distribution” is determined by more than a dozen criteria, including length of the marriage, children, and who enhanced assets during the marriage. The only asset typically not divided relatively evenly is business interests, which normally benefit the person holding the business interest more than their spouse.
One way to protect an asset when a marriage is on the rocks, says Sheila, is to “have a frank discussion with your spouse about the asset and consider a post-nuptial agreement.”
Significantly, prior to practicing matrimonial and family law, Sheila was a criminal defense lawyer who argued three times before the U.S. Supreme Court.
Outside of work, Sheila enjoys spending time with her husband and two grown daughters (one a New York prosecutor and the other a cranial-facial pediatric surgeon) and has raised three American Brittany Spaniels. She enjoys hiking, travel, and reading non-fiction, having recently read The Code Breaker, by Walter Isaacson, about the first woman Nobel Prize winner in chemistry, Jennifer Doudna.
Did you hear the recent buzz caused by the leaked video of Finland Prime Minister Sanna Marin dancing at a party? While her actions have absolutely nothing to do with her ability to lead her country, the court of public opinion weighed in heavily—splitting her constituency between those who called for her resignation and those who supported her progressive persona.
This is not unlike many situations that I have encountered in my divorce and family law career. While an individual may have every right to engage in certain activities—and to share such on their social media and other communication channels—the “court of public opinion,” and the actual court, can be a harsh judge and can cause ripple effects that undermine their end goals.
At the altar, you make hopeful and sincere vows to love and cherish each other until death do you part. Your goals for your long and successful marriage include many milestones: opening your first joint savings account, buying your first home, having a child, getting a dog for your child, having another child…another dog…travel and adventure…planning for a comfortable retirement. Then, out of nowhere, you get an unexpected and devastating phone call. Your spouse of 15 years has dropped dead of a heart attack. An emotionally jolting, dark cloud descends.
As you start to pick up the pieces of your life and shield your children from the unknown, the financial setback of your loss begins to set in. You remember your spouse had a life insurance policy, but can’t remember the name of insurance company or where the policy is located. While your life turns upside down both emotionally and financially, you turn the house upside down to find the vital information you need to move on. Where is the list of user names and passwords for your bank accounts and investments? What is the name of the financial planner we saw? Are the pink slips for the cars and deed to the house in the safe deposit box? Where are the keys to the safe deposit box? If only you had sat down together to get organized.
It makes you think: what vows do you promise to keep if death does part you and your spouse?
Imagine if your bank froze your assets because the only person with the combination to the vault had died. Incredibly, in a widely reported case earlier this year, the wife of the CEO and co-founder of a Canadian crypto-currency exchange (along with the company’s investors) found herself in exactly that position. This CEO, who died unexpectedly while traveling in India in December 2018, was the sole keeper of the password to accounts valued at $190 million in U.S. dollars. Forced to file for creditor protection with the Supreme Court of Nova Scotia, his widow said his death left the company unable to access the bulk of its cryptocurrency funds.
While your individual portfolio might not include cryptocurrency investments, this is a cautionary tale for every married couple. Complete transparency during the marriage is the key to not leaving your family in a lurch. As unpleasant as it may be to think about, and as difficult as it may seem to find an extra hour to put together, organizing your family’s financial life benefits you now and in the future. It is a way for you to minimize the financial agony your spouse and children may face after your death. It may also prompt important financial discussions to have now with your partner, as uncomfortable or unromantic as they may seem at first. At the very least, this process will give you a clear picture of your financial wellbeing.
There are dozens of workbooks and resources for organizing available in print and online. No matter which one you select, this process will educate both you and your spouse about each other’s finances and records. Start by compiling a complete list of passwords. Take some extra time while you’re focused to identify all your assets and liabilities (those in your name, your spouse’s name, jointly held), and note when and how these assets were acquired. List your family’s insurance coverage (medical, dental, property, auto, life, umbrella) and take steps to fill in any coverage gaps you may find. Talk about making an estate plan if you haven’t already, or updating the one you have—including medical directives for each of you.
While all of this may take you away from Sunday football or Tuesday night Real Housewives, consider the long-term benefits that your short-term sacrifice will have for those you love and cherish.
Today is International Women’s Day, a worldwide initiative by U.N. Women, the United Nations entity for gender equality and the empowerment of women. This year’s campaign is #BeBoldforChange. Individuals and organizations around the world are celebrating bold ideas and actions to advance gender parity. Please join us in being catalysts for change–helping women and girls achieve their ambitions, challenge bias, and take more leadership roles.
There are so many ways, large and small, public and personal, in which you can participate and make a difference. We hope these suggestions will spark your interest, and ignite your involvement:
Take a junior woman to a client or sales meeting.
Launch a purposeful female-focused initiative in your company or community.
Start conversations to educate boys about stereotypes and violence against women.
Nominate women for senior jobs.
Encourage female colleagues to serve on corporate boards.
Donate your time and talents to a female-focused nonprofit organization.
Mentor a woman or girl.
Form a support network or commit to advancing an existing one.
Encourage outstanding women to run for elected local, state, and federal positions.
Celebrate individual women’s journeys and the barriers overcome.
Include more women on expert panels.
Raise women’s visibility as spokespeople in the media.
Drive fairer recognition and credit for women’s contributions.
Showcase the success of women leaders in your company or community.
Applaud social, economic, cultural, and political women role models.
Launch or fund a women-focused scholarship.
Encourage more girls into STEM (Science, Technology, Engineering, and Mathematics) education and careers.
Support women inventors of new products and services.
Celebrate women researchers discovering new knowledge.
Each one of us can be a leader within our own spheres of influence. Through purposeful collaboration, we can help women advance and unleash their limitless potential the world over. #BeBoldforChange.
Even in the best of times, family dynamics can be fraught. At holiday time, emotions are heightened for myriad reasons, and when separation, divorce, or custody issues are thrown into the mix, this time of year can be challenging. This may be your first holiday sharing your children’s vacation time. Perhaps your communication with the other parent isn’t at its finest, or financial concerns are part of your new normal. All of these—on top of visiting relatives, travel arrangements and hectic schedules—can be anxiety-provoking.
We hope that the following suggestions will help you through the season and bring better communication in the New Year.
Avoid engaging in the “divorce war games” with one another. In the end, it’s the children who suffer, becoming collateral damage.
Forgo the “one-upsmanship.” Be mindful not to try to out-do the other parent with gifts or vacation plans. Your children are likely to feel torn, no matter their age.
Don’t go it alone. Give yourself the gift of some “centering.” Whether in the form of therapy, yoga, or a daily walk with a close friend, both you and your family will benefit.
Be flexible. Easily said, more difficult to do—especially if custody arrangements are relatively new. Try to take the pressure off of transition times. Your children will notice.
Show your children what the holidays really mean: They are all about giving. Ask your children to join you in a kind act for those less fortunate. It will divert your focus away from your own hurt or pain.
Make plans for 2017. Discuss what good will come after the holidays and let your children help schedule activities to look forward to.
Promote peace. No matter what your religious or spiritual beliefs may be, harmony is the ultimate goal, and it starts with you.
All of us at Blank Rome wish you a peaceful holiday season filled with opportunities to create new memories.
Facebook, Twitter, Instagram, Snapchat. The world of social media is ever-evolving. And in the world of divorce and custody litigation, the use of social media is also evolving. We can’t always control what our clients decide to post on their social media accounts—but we can certainly try! We routinely advise clients not to post anything derogatory or defamatory about their ex-spouse. However, what can be done when one parent insists on posting pictures of minor children on his or her social media account that is available for public view? Parents with shared legal custody often do not agree that their minor children should be regularly featured on such accounts. While one might think you would need both parents’ consent to post pictures of a minor child on public social media accounts, that is not always the case. Courts may be reluctant to infringe on a parent’s right to free speech by placing restrictions on his or her ability to feature their children. At the same time, courts may recognize the potential danger of exposing children to child predators when pictures of minor children are posted on public social media accounts.
If you are a parent who does not want images of your children on publicly viewed social media accounts and the court will not impose a restriction on the other parent, you should regularly monitor your co-parent’s account and read the comments. If you see anything alarming and concerning, immediately contact the other parent and request that they remove the post. Take a screen shot of the post and the concerning comments. If the other parent refuses to remove the post, contact your attorney. While the court may not initially be inclined to issue a restriction, if you can show that the postings are receiving disturbing comments, the court may then be inclined to act.
If you are parent who wants to be able to post photos on publicly viewed sites—use caution! Monitor your own account and be proactive in removing photos that garner concerning comments and blocking users who make such comments. You may need to convince a court that you are using photos of your children on public social media in a responsible way. Also, stop and really assess whether it is necessary to have your children featured on a publicly available account and if it is going to be worth the ongoing animosity between yourself and the other parent. If the reason for wanting a public account is so you can share pictures with family and friends, then it may not be worth the battle. Opt for a private account and invite your family and friends to follow you. Children always benefit when parents are able to compromise.
And, as a final note, parents also need to use good judgment when sending sexually explicit private photos over social media. Children should never be included in any such photos. (Yes, Anthony Weiner, we are talking to you!) If your spouse or co-parent comes into possession of “sexts” that show your children, not only could it affect your custody rights, but you could also become the subject of a social services investigation. Adults are free to do as they please, but when it affects children, courts will always act swiftly and harshly to protect them.
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.
Your 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.
What 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.