Blog Posts
Family Law
The Massey Prenup: In Search of the Unbreakable Agreement
There are matrimonial lawyers, and then there is Miles Massey. For those who have forgotten the Coen brothers' 2003 film “Intolerable Cruelty,” George Clooney's Massey is an enormously successful Beverly Hills divorce lawyer: impeccably dressed, insufferably confident, obsessed with his teeth, and the author of what may be the Holy Grail of matrimonial practice — the Massey Prenup. “The Massey prenup has never been penetrated.” Miles Massey, Intolerable Cruelty1 The Massey Prenup is legendary. Its purpose is simple: if the marriage ends, nobody profits from having married the other. And its claim to fame is even simpler. It has never been successfully challenged. Every matrimonial lawyer should be so lucky. After 40 years of watching people fall in love, fall out of love, and occasionally develop remarkably different memories of what happened in between, however Miles Massey may have gotten one thing wrong. The secret to the unbreakable prenup is not the prenup. It is everything that happens before anybody signs it. You Are Allowed to Make a Bad Deal Let’s start there. A prenuptial agreement does not have to be equal to be enforceable. It does not have to approximate what equitable distribution would have produced. And a matrimonial judge does not get to rewrite an agreement because, 15 years after the wedding, one spouse realizes that signing it was a spectacularly bad financial decision. New York takes agreements seriously. The Court of Appeals told us that long ago in Christian v. Christian, 42 N.Y.2d 63 (1977), and our appellate courts have repeated the principle ever since. New York recognizes a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, and duly executed prenuptial agreements are accorded the same presumption of legality as other contracts. See Bloomfield v. Bloomfield, 97 N.Y.2d 188 (2001); Gottlieb v. Gottlieb, 138 A.D.3d 30 (1st Dep't 2016). Of course, that does not mean anything goes. Fraud, duress, overreaching and unconscionability remain grounds upon which agreements can be attacked. But a considerable distance exists between an agreement someone considers unfair and one a court will refuse to enforce. Or, without the legalese: You are allowed to make a bad deal. That is where our search for the Massey Prenup begins. $103 Million Versus $610,817 If Miles Massey practiced in New York, Gottlieb would probably be framed on his office wall. When the parties signed their prenuptial agreement, the husband disclosed a net worth of$103,894,476. The wife's was $610,817. That is quite a disparity. The agreement narrowly defined marital property and broadly protected separate property, including business interests, income earned during the marriage, and appreciation. The wife had experienced matrimonial counsel. Negotiations occurred over months. Changes requested on her behalf were incorporated. Her lawyer advised her not to sign it. She signed it anyway. When the marriage ended, she challenged the agreement. The First Department enforced it. The most interesting part of Gottlieb is not the $103 million. It is the lawyer saying, essentially, do not sign this, and the client saying, essentially, I am signing it anyway. That is something every matrimonial lawyer understands. We advise. Clients decide. Sometimes they listen to us. Sometimes they do not. Sometimes, years later, they very much wish they had. But regret is not fraud. Regret is not duress. And regret does not transform a knowingly accepted bargain into an unconscionable one. That tells us something important about the Massey Prenup. Ironclad does not mean equal. It means defensible. Draft the Cross-Examination First Here is something I have learned from litigating matrimonial agreements: if you want to draft a good prenup, stop thinking like the lawyer drafting it. Think like the lawyer trying to destroy it. Before I worry about another representation, warranty, or defined term, I want to be in a courtroom 15 years from now. The marriage is over. Everybody is angry. The agreement is suddenly worth millions of dollars. And, miraculously, everyone's memory of what happened before the wedding has improved dramatically. One spouse takes the witness stand: When did you first see the agreement? How close was it to the wedding? Did you have your own lawyer? Who found that lawyer? Did you understand what you were giving up? Did you know what your prospective spouse owned? Were financial documents provided? Were you permitted to negotiate? Were you told there would be no wedding unless you signed? Did somebody promise you something that is not in the agreement? Were you afraid not to sign? There is your drafting checklist. Draft the future cross-examination first. Then draft the prenup. Because the real question is not simply whether the agreement is enforceable today, it is how the story of its execution will sound to a judge 15 years from now. The Agreement Does Not Begin on Page One Cioffi-Petrakis v. Petrakis, 103 A.D.3d 766 (2d Dep't 2013), is the cautionary tale. There, the problem was not simply that one spouse had negotiated a very favorable agreement. The trial court credited the wife's account of fraudulent inducement, and the Second Department affirmed the determination setting the agreement aside. That should get every drafter's attention. The document may say there were no promises. Someone may later swear there were. The document may say execution was voluntary. Someone may later describe pressure. The document may acknowledge knowledge of the other's finances. Someone may later claim concealment. Recitals are useful. Facts are better. Which is why, if I were trying to construct the real Massey Prenup, I would spend at least as much time protecting the process as protecting the assets. The agreement does not begin on page one. It begins the first time somebody says, “We need a prenup.” I Want the Other Side to Have a Good Lawyer Yes, really. When representing the monied prospective spouse, some clients seem puzzled by this. Why would I want the other side to have an excellent matrimonial lawyer? Because I want the agreement to survive. I do not want my client's future spouse represented by someone's cousin who does real estate closings, or by an attorney parachuting in three days before the wedding who has never negotiated a matrimonial agreement. I want a real matrimonial lawyer. Strong v. Dubin, 48 A.D.3d 232 (1st Dep't 2008), helps explain why. The wife had counsel. Her attorney advised her that the agreement appeared one-sided. She nevertheless chose to sign it. The agreement survived the challenge. Independent counsel protects the prospective spouse. But let us not kid ourselves. It also protects the agreement. Someone can later say: I explained it. We discussed it. I told my client what she was relinquishing. I gave my advice. And she chose to sign. The goal is not simply consent. The goal is informed consent you can prove. And please disclose the money. Every matrimonial lawyer has heard this conversation: “She knows I have money.” Fine. “He knows about the business.” Wonderful. “We've lived together for eight years. She knows everything.” Terrific. Put it in writing. New York does not impose a mechanical rule that every asset must be valued to the penny or the agreement disappears. But that is beside the point. Why voluntarily create something for the future lawyer to litigate? If your client owns a business, disclose it. If there is real estate, disclose it. If there are substantial investment accounts, disclose them. If there are significant liabilities, disclose those too. Use schedules. Use reasonable values. Preserve the documents. Fifteen years from now, I do not want to depose somebody about what was supposedly discussed over dinner in the Hamptons. Could I win that issue? Maybe. But why would I want the issue? The best Massey Prenup is not the agreement that can survive the most attacks. It is the agreement that eliminates the attacks before anyone gets the chance to make them. If You See the Florist, You Have Waited Too Long Nothing improves a duress argument quite like an impending wedding. The venue has been paid. Two hundred guests have responded. Grandma has flown in from Florida. The dress is upstairs. The flowers have arrived. And somebody produces a 62-page prenuptial agreement. Sign here. You can already hear the opening statement. Does that necessarily constitute legal duress? No. But why are we giving opposing counsel the facts? Start early. Let the lawyers negotiate. Exchange drafts. Let the parties think. Make changes. Document them. Then execute the agreement without drama. A prenup signing should be boring. Painfully boring. If you see the florist in the hallway, you have waited too long. Sometimes the Lawyer Breaks the Prenup And then came Gaudette v. Gaudette, 249 A.D.3d 1369 (3d Dep't 2026). Every lawyer who drafts matrimonial agreements should read it. The parties had been married for more than four decades. Their prenuptial agreement contained ambiguous provisions. The case had already reached the Third Department, and the matter was remitted for an evidentiary hearing to determine what the parties actually intended. The hearing did not solve the problem. The ambiguity remained. Because the provisions were intertwined and the agreement contained no severability clause, the agreement ultimately failed. Think about that. More than 40 years of marriage. A prenuptial agreement. An evidentiary hearing. Two trips through the appellate process. And the prenup failed. Not because someone hid $50 million. Not because the wedding was the next morning. Not because somebody was coerced into signing. Because the drafting failed. We lawyers sometimes confuse complexity with sophistication. They are not the same thing. A 90-page agreement is not necessarily better than a 35-page agreement. A paragraph containing seven defined terms, four exceptions, three cross-references, and a semicolon nobody understands is not necessarily protecting anyone. If a judge cannot determine what we meant, we have not drafted an ironclad agreement. We have drafted an expensive lawsuit. Do not Lose $50 Million Over a Notary There is, of course, another way to destroy a magnificent New York prenup. Botch the acknowledgment. Domestic Relations Law § 236(B)(3) requires marital agreements to be in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. This is not decorative statutory language. Matisoff v. Dobi, 90 N.Y.2d 127 (1997), Galetta v. Galetta, 21 N.Y.3d 186 (2013), and Anderson v. Anderson, 37 N.Y.3d 444 (2021), should have cured the matrimonial bar of any tendency to treat acknowledgment as an afterthought. There are interesting legal distinctions among a defective certificate, the underlying act of acknowledgment, and what may or may not subsequently be cured. Save that discussion for the motion papers. My drafting advice is shorter: get it right the first time. There are few things more painful than negotiating an exquisitely drafted agreement protecting tens of millions of dollars and later litigating what somebody did — or did not do — in front of a notary. No wriggle room should include the signature page. There Is No Secret Clause I understand why Miles Massey's fictional achievement is so appealing. Lawyers love the idea that somewhere there is a clause — a magnificent combination of defined terms, waivers, and legal prose — that will make an agreement impervious to attack. After 40 years, I have not found it. What I have found is considerably less glamorous. Start early. Get good lawyers on both sides. Disclose the finances. Negotiate honestly. Document the negotiations. Do not make side promises. Do not play games. Do not squeeze simply because you can. Draft clearly. Then put the agreement down for a day and read it again as though someone had just retained you to destroy it. And, for heaven's sake, execute it correctly. George Clooney could probably not make much of a movie out of that. So, Can We Draft the Massey Prenup? I think we can come awfully close. Not because we can prevent somebody from challenging it. We cannot. Anyone sufficiently angry, sufficiently wealthy, or sufficiently determined can litigate almost anything. And no responsible matrimonial lawyer should promise that an agreement is “unbreakable.” But we can accomplish something better. We can draft an agreement that another experienced matrimonial lawyer pulls from the file 15 years later, reads twice, examines the financial disclosure, reconstructs the negotiations, speaks to the client, considers the available causes of action, and finally says the five words your former client paid you to make inevitable: I do not see a case. That is the real Massey Prenup. Not an agreement nobody can challenge. An agreement nobody particularly wants to challenge. And after all the sophisticated drafting, negotiations, disclosure, independent counsel, and statutory formalities, the secret of the supposedly unbreakable prenuptial agreement turns out to be remarkably simple. The Massey Prenup is not a document. It is a process. Get the process right, and perhaps even Miles Massey would have to concede: no wriggle room. 1Intolerable Cruelty (2003), Producers Ethan Coen and Brian Grazer
September 25, 2026
Family Law
A New Era in Child Custody Law: Why New York’s Proposed Shared Parenting Presumption Will Harm the Best Interests Standard
For more than 50 years, New York has adhered to one fundamental principle in child custody cases: there is no one-size-fits-all answer. Every child is different. Every family is different. Every custody dispute presents its own unique facts, challenges, strengths, and concerns. That principle is embodied in a deceptively simple phrase that has become the cornerstone of New York custody law: the child's best interests. It is not merely a slogan. It is the product of decades of thoughtful decisions by the New York Court of Appeals and the Appellate Divisions, recognizing that judges — not legislators — must evaluate each family individually and fashion custody arrangements based on the evidence in each case. Despite the “best-interests” standard being gender-neutral, some New York legislators find the individualized best-interests standard insufficient or believe it has run its course. They want 100% unmitigated equality from the starting gate — before the evidence is heard, before the family is understood, and before anyone has determined whether equal parenting time is actually best for the child. Equality first; facts later. Enter Senate Bill S4128. Bill S4128 is not New York law. Not yet, anyway. As of the 2025–2026 legislative session, it remains in Committee. But the thinking behind it is dangerous and deserves attention, because when it becomes law it will upend traditional custody analysis: instead of starting with the child and asking what arrangement best serves that child, it starts with an answer — parental equality — and works backward from there. At first glance, the legislation appears benign. After all, who could oppose children having meaningful relationships with both parents? But this bill does not. Instead, it fundamentally changes New York custody law by creating a legal presumption that shared parenting is in a child's best interests and shifting the burden of proof to the parent seeking sole custody. The bill sets forth: "The provisions of this act establish a presumption, affecting the burden of proof, that shared parenting is in the best interests of minor children." It further states: "The burden of proof that shared parenting would be detrimental to such child shall be upon the parent requesting sole custody." Finally, the legislation establishes an order of preference that places an award of shared parenting to both parents first, requiring the court to explain why it declined to order shared parenting whenever a different custodial arrangement is selected. Those provisions mark a dramatic departure from decades of New York law. The Presumption Is the Problem Supporters of the legislation argue that the bill merely encourages judges to consider shared parenting. Critics argue that is incorrect. New York judges already consider shared parenting every day. Current law does not prevent a court from awarding joint legal custody. It does not prevent equal parenting time. It does not prevent creative parenting schedules tailored to a particular child's needs. Indeed, judges frequently fashion parenting plans that maximize each parent's involvement when doing so serve the child's best interests. The existing law is not hostile to shared parenting if the parties agree. But it does not impose it on hostile parents who cannot even agree whether the sun or the moon is in the sky. The proposed legislation does just that. It forces combative litigants to suddenly become pillars of friendship and equanimity. Instead of asking,"What custodial arrangement is in this child's best interests?" the court is first instructed to begin with a predetermined answer and then determine whether someone has produced sufficient evidence to overcome it. That subtle shift has enormous consequences. The presumption becomes the starting point rather than the conclusion. The burden shifts. Litigation changes. Most importantly, the focus shifts away from the child as an individual and toward satisfying or rebutting a legislative assumption. That is precisely what New York's appellate courts have spent decades avoiding. The Legislature Cannot Know Every Family Family Court judges decide custody cases involving real children, not abstract notions. These children include those with autism, anxiety disorders, intensive medical needs, parents working overnight shifts, long-distance parents, communication issues requiring police, exposure to domestic violence, manipulation by one parent, or a need for both parents, and protection from one. No statute can anticipate those facts. No legislative committee can predict them. No presumption can account for them. The legislature has never met these children. The trial judge has. That distinction matters. Experience Cannot Be Legislated Custody trials are unlike virtually every other civil proceeding. Judges observe parents’ testimony. They evaluate credibility. They hear from forensic evaluators. They review school records, medical records, therapy records, Child Protective Services investigations, and police reports. They assess demeanor, consistency, judgment, insight, and empathy. These are countless intangibles that never appear in a transcript. Those observations cannot be reduced to a statutory formula. Nor should they be. The genius of New York's custody law has always been its flexibility. The law recognizes that children are individuals, not categories. The proposed legislation would replace that flexibility with a presumption crafted in Albany by legislators who will never meet the family appearing before the court. The Bill Solves a Problem That Does Not Exist There is nothing inherently wrong with encouraging parents to cooperate. Recognizing the importance of both parents in a child's life is not controversial. Those principles are already reflected in New York law. What is controversial is converting those aspirations into a legal presumption that shifts the burden of proof. Presumptions are appropriate when experience shows that one factual conclusion almost always follows from another. Custody cases are the opposite. Every experienced matrimonial attorney knows that no two custody cases are alike. The facts that matter in one family may be completely irrelevant in another. That is why New York has wisely resisted bright-line rules for decades. The legislature now proposes to create one. And that is where the proposal goes fundamentally wrong. Fifty Years of New York Law Reject Bright-Line Rules The most fundamental flaw in Senate Bill S4128 is not its endorsement of shared parenting. Rather, it is its departure from a principle that has guided New York custody law for generations. There are no categorical presumptions in custody cases because every child deserves an individualized determination based on his or her own circumstances. For more than 50 years, New York has adhered to a fundamental principle in child custody cases: there is no one-size-fits-all answer. Domestic Relations Law § 240(1)(a) directs courts to determine custody "in accordance with the best interests of the child," a standard the Court of Appeals has consistently interpreted as requiring an individualized determination based on the totality of the circumstances. N.Y. Dom. Rel. Law § 240(1)(a); Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94–95 (1982); Eschbach v. Eschbach, 56 N.Y.2d 167, 171–74 (1982). Long before phrases such as "shared parenting" and "equal parenting time" entered the public conversation, the New York Court of Appeals recognized that custody disputes cannot be resolved by formulas. They require careful judicial evaluation of the child's particular needs before the court. This individualized approach was articulated decades ago in Lincoln v. Lincoln, where the Court of Appeals recognized that custody litigation differs fundamentally from ordinary civil litigation because the court's paramount obligation is to protect the child's welfare. To fulfill that obligation, the Court authorized trial judges to conduct in camera interviews of children, when appropriate, underscoring that custody determinations require a careful examination of each child's unique circumstances. Lincoln v. Lincoln, 24 N.Y.2d 270, 272–73 (1969). That philosophy permeates nearly every significant custody decision issued by New York's highest court. In Braiman v. Braiman, the Court of Appeals rejected the notion that joint custody should be the norm, noting that it is generally inappropriate when parents are embattled and unable to cooperate. The Court explained that joint custody is reserved for the relatively rare situations in which parents have demonstrated an ability to set aside their personal differences and work together to raise their children. Braiman v. Braiman, 44 N.Y.2d 584, 589–90 (1978). The lesson from Braiman remains as relevant today as it was nearly 50 years ago: joint custody is appropriate only when it serves a particular child's needs, not because the law presumes it should. The Court later reaffirmed that joint custody is appropriate only when the parents possess sufficient cooperation and mutual respect to make shared decision-making workable. Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947 (1985). Four years later, in Friederwitzer v. Friederwitzer, the Court reaffirmed that custody determinations must rest on "the best interests of the child" after considering all relevant facts and circumstances. Rejecting mechanical approaches, the Court emphasized that custody decisions require careful weighing of the evidence in each case. Friederwitzer, 55 N.Y.2d at 94–95. The Court explained that no single factor governs the custody determination and that trial courts must evaluate all relevant circumstances bearing on the child's welfare. Id. That same year, the Court decided Eschbach v. Eschbach, perhaps the most frequently cited custody decision in New York. There, the Court articulated what has become the cornerstone of New York custody jurisprudence: courts must consider the totality of the circumstances, including the quality of each parent's home environment, parental guidance, relative fitness, the child's emotional and intellectual development, the stability of existing arrangements, and any other factor bearing on the child's welfare. Significantly, the Court declined to elevate any single factor above the others, instead entrusting trial judges with broad discretion to determine which arrangement serves the child's best interests. Eschbach, 56 N.Y.2d at 171–74. Among the factors identified by the Court are the quality of each home environment, each parent's past performance and relative fitness, the child's emotional and intellectual development, the stability of the existing custodial arrangements, and each parent's willingness to foster the child's relationship with the other parent. Id. The significance of Eschbach cannot be overstated. It rejected formulaic decision-making and rigid hierarchies. Most importantly, it reaffirmed that custody determinations cannot be reduced to a single presumed outcome. That philosophy perhaps reached its clearest expression in Tropea v. Tropea, the Court's landmark relocation decision. Prior to Tropea, New York courts frequently applied rigid rules governing relocation requests. The Court of Appeals expressly abandoned those rules, holding that no single factor should be treated as dispositive and that courts must instead evaluate all relevant facts to determine the child's best interests. Tropea v. Tropea, 87 N.Y.2d 727, 739–41 (1996). Likewise, in Nehra v. Uhlar, the Court recognized that although prior custody agreements and existing custodial arrangements are important considerations, they cannot override the court's independent obligation to determine the child's best interests. Nehra v. Uhlar, 43 N.Y.2d 242, 251 (1977). Although Tropea involved relocation rather than shared parenting, its reasoning is directly applicable here. The Court rejected bright-line rules because they inevitably fail to account for the extraordinary variety of family circumstances in custody litigation. The irony is striking. While the legislature proposes creating a statutory presumption favoring one custodial arrangement, the Court of Appeals has spent decades rejecting rigid rules that interfere with individualized decision-making. A Presumption Is Not Merely a Preference Supporters of Senate Bill S4128 often argue that the legislation encourages meaningful involvement from both parents. If that were all the bill accomplished, there would be little controversy. New York law has long recognized the importance of preserving children's relationships with both parents whenever consistent with their welfare. See Eschbach, 56 N.Y.2d at 171–74. The bill, however, does considerably more. It expressly provides: "The provisions of this act establish a presumption, affecting the burden of proof, that shared parenting is in the best interests of minor children." It further provides: "The burden of proof that shared parenting would be detrimental to the child shall be on the parent requesting sole custody." S. 4128, 2025–2026 Leg., Reg. Sess. (N.Y. 2025). That language is critical. A judicial preference guides discretion. A statutory presumption that shifts the burden of proof, changes the legal framework itself. Instead of beginning with two parents standing on equal legal footing while the court determines what arrangement serves the child's best interests, the legislation instructs courts to begin with a preferred outcome that must be overcome through litigation. That marks a fundamental change in New York custody law. The Reality of Custody Litigation The legislature's proposal also reflects a misunderstanding of how custody cases usually unfold. Few custody disputes involve two equally capable parents who disagree only about the allocation of parenting time. Family Court judges routinely handle cases involving domestic violence, coercive control, untreated mental illness, substance abuse, parental alienation, developmental disabilities, educational disputes, and children with extraordinary medical or psychological needs. Some parents communicate effectively despite the end of their marriage. Others cannot exchange a child without police intervention. Still others demonstrate extraordinary cooperation under extraordinarily difficult circumstances. The point is not that shared parenting is inappropriate. Often, it is precisely the right solution. The point is that no legislature can know which family falls into which category before the evidence is presented. That is why judges conduct hearings. That is why forensic evaluations are ordered. That is why attorneys for the child participate. Furthermore, that is why appellate courts repeatedly emphasize that custody determinations depend on the totality of the circumstances, that no single factor is dispositive, and that considerable deference is afforded to the Family Court's credibility determinations because it has the unique opportunity to observe the witnesses firsthand. Eschbach, 56 N.Y.2d at 171–74; Friederwitzer, 55 N.Y.2d at 94–95; Louise E.S., 64 N.Y.2d at 947. Judicial Discretion Protects Children The genius of New York custody jurisprudence has never been that it favors mothers over fathers — or fathers over mothers. It favors neither. It favors children. By refusing to adopt categorical rules, New York has preserved what matters most: the ability of trial judges to listen to witnesses, evaluate credibility, assess expert testimony, and fashion parenting arrangements tailored to the unique needs of each child. That discretion is not a weakness in our law. It is its greatest strength. The legislature undoubtedly seeks to encourage meaningful parental involvement, an objective few would dispute. But good intentions cannot justify replacing individualized justice with statutory presumptions. The best interests of children are too important to be decided by legislative formula. The question should never be whether the legislature prefers shared parenting. The question should remain the one New York courts have asked for generations: What arrangement is in the best interests of this child? Until someone can demonstrate that New York's courts have failed to answer that question faithfully, and there is no empirical evidence establishing such systemic failure, the legislature should resist replacing decades of thoughtful jurisprudence with a presumption that assumes the answer before the first witness is sworn. The legislature cannot legislate wisdom into custody cases. It cannot legislate parental cooperation. And it cannot legislate what is best for children it has never met. That responsibility properly belongs where New York law has always placed it: with the judges who hear the evidence, evaluate the facts, and decide each case, child by child.
August 25, 2026
Family Law
High-Risk Protection Reform: Rethinking Orders of Protection in High-Risk Domestic Violence Cases
Every day, judges in New York issue Temporary Orders of Protection to help prevent domestic violence. These orders play a crucial role. They can remove an abuser from the home, prohibit contact, require surrender of firearms when permitted, and give law enforcement clear authority to act if the order is violated. Just as paper cannot refuse ink, the order itself cannot stop physical violence. The order can ban violent acts and punish violations, but it cannot physically stop someone determined to cause harm. This is not meant as a criticism of courts or judges. It simply shows that orders of protection should be the first step in keeping victims safe, not the last. Unfortunately, that is often the case. The order is issued, but the abuse continues – because it cannot be stopped without putting the offender in jail. And on many occasions, the offender does more than just continue the abuse. Most domestic violence homicides come with warning signs. These can include increasing control, stalking, threats to kill, strangulation, access to guns, prior assaults, and violations of court orders. The period immediately after separation or a court action is especially dangerous, as abusers may feel they are losing control. The main question, therefore, is not whether New York should continue issuing orders of protection — they are clearly needed. The real issue is whether a Temporary Order of Protection in high-risk cases should automatically trigger additional protective measures. This issue is not theoretical. In April of this year, Tomeka Kamwani, a 41-year-old New Jersey nurse and mother of four, reportedly obtained a temporary restraining order after her former fiancé followed her to a friend’s residence. According to her family, he repeatedly violated the order. Court records reported by NJ.com indicate that he was subsequently charged with burglary, terroristic threats, criminal mischief, and simple assault after allegedly breaking into her home and assaulting her. A request to detain him pending trial was denied. Weeks later, according to her family, he entered her home, shot her three times, and then killed himself while two of her children were present. See Matt Gray, N.J. Nurse Killed by Ex-Fiancé in Murder-Suicide Weeks After Getting Restraining Order, Family Says, NJ.com (Apr. 2, 2026), republished by Yahoo News; Shawnette Wilson, Vigil Held for Swedesboro Nurse and Mother of Four Killed in Suspected Domestic Violence, FOX 29 Philadelphia (Apr. 3, 2026). In another case in April of this year, Victoria Alexander, also a New Jersey nurse, was killed at her workplace in Egg Harbor Township. Prosecutors report that her estranged husband blocked her car, left suicide notes, pursued her into her workplace, shot her multiple times, and then took his own life. The Atlantic County Prosecutor described the incident as “a tragic and deliberate act of domestic violence.” See Stephen Sorace, New Jersey Nurse Gunned Down at Work by Estranged Husband in Murder-Suicide: Police, Fox News (Apr. 14, 2026); EHT Nurse Killed in “Tragic and Deliberate Act of Domestic Violence,”, BreakingAC (Apr. 14, 2026). Despite differences in location and procedure, both cases reveal a common failure: warning signs were evident before the fatal incidents. New York’s Strong but Reactive Framework New York law gives Family Court and Criminal Court substantial authority to protect victims of domestic violence. Article 8 of the Family Court Act authorizes orders of protection that may include stay-away directives, no-contact provisions, and other restrictions to prevent further abuse. Courts may consider prior abuse, threats, substance abuse, access to weapons, and related risk factors when determining appropriate conditions. See N.Y. Fam. Ct. Act § 842 (McKinney 2026). It is also important to distinguish a Temporary Order of Protection from a Temporary Restraining Order. A Temporary Restraining Order, or TRO, is generally a civil litigation tool used to preserve property, assets, contractual rights, or the status quo while a lawsuit is pending. In New York, TROs may arise in Supreme Court commercial or matrimonial matters, Surrogate’s Court estate disputes, federal intellectual-property or business cases, and certain civil matters involving property or contractual interference. By contrast, a Temporary Order of Protection, or TOP, is directed at personal safety and behavior. It is issued by courts with authority over family offenses, criminal charges, or matrimonial proceedings, most commonly Family Court, Criminal Court, and Supreme Court when connected to a divorce action. For the public, the difference is practical: a TRO may freeze a bank account, stop a sale, or preserve business rights, whereas a TOP is the court order meant to protect a person from abuse, threats, stalking, harassment, or violence. That distinction matters because the article’s focus is not ordinary civil restraint; it is whether personal-safety orders in high-risk domestic violence cases provide sufficient immediate protection beyond the paper order itself. New York has also strengthened firearm surrender provisions. Family Court Act § 842 -a requires an inquiry into firearm access when a temporary order is issued and authorizes the suspension, surrender, seizure, and related protections in specified circumstances. Criminal Procedure Law § 530.14 provides parallel firearm-surrender authority in criminal cases. See N.Y. Fam. Ct. Act § 842-a (McKinney 2026); N.Y. Crim. Proc. Law § 530.14 (McKinney 2026). These provisions are not symbolic; they recognize that domestic violence can become lethal quickly when threats, weapons, and separation converge. The case law underscores both the power and the limits of orders of protection. In People v. Wood, 95 N.Y.2d 509, 511–12, 742 N.E.2d 114, 115–16, 719 N.Y.S.2d 639, 640–41 (2000), the Court of Appeals described New York’s parallel civil and criminal protective-order statutes as designed to “stem the tide of domestic abuse between people locked in destructive relationships.” Id. at 516, 742 N.E.2d at 119, 719 N.Y.S.2d at 644. The decision arose in a double-jeopardy context, but its premise remains important: orders of protection constitute a broader public response to domestic abuse, not simply private paperwork between litigants. These laws matter and have saved lives. But they are not enough if the legal system treats issuing an order as the last step. A court order tells someone what not to do, but it does not track their actions, verify that guns are removed, coordinate agencies, assist with emergency moves, or ensure that safety plans continue. For many people, the risk of arrest is enough to stop them. But for the most dangerous offenders, this is not always true. Sometimes, the first time they violate the order is the last warning before a tragedy occurs. The Warning Signs Are Known Research shows that requesting an order of protection often indicates that the danger is higher, not that the order does not work. The warning signs are clear, but the main problem is the lack of an automatic, coordinated response when these signs appear. Those indicators include: Threats to kill the victim, children, others, or the offender himself Prior strangulation or attempted strangulation Access to firearms or other deadly weapons Stalking, surveillance, or obsessive jealousy Escalating violence, forced sexual conduct, or violence during pregnancy Recent or anticipated separation Repeated violations of prior orders of protection Statements suggesting the offender has “nothing left to lose” When several risk factors are present, the danger is real and predictable, not merely a possibility. These situations require more than a written warning. Lessons from Australia Australia offers useful models because several jurisdictions treat high-risk domestic violence as a continuing public-safety emergency, not merely a court case. Victoria’s Multi-Agency Risk Assessment and Management Framework (MARAM) provides a shared structure for identifying, assessing, and managing family violence risk across agencies. It emphasizes coordinated safety planning, information sharing, and keeping perpetrators “in view” rather than placing the burden of safety solely on victims. See State Gov’t of Victoria, Family Violence Multi-Agency Risk Assessment and Management Framework (updated July 27, 2023). New South Wales offers another example through Safer Pathway. Its Domestic Violence Safety Assessment Tool evaluates threats to victim-survivors’ life, health, and safety. Cases deemed to pose a serious threat may be referred to Safety Action Meetings, where police and government and non-government service providers share relevant information and develop coordinated steps to reduce risk. See N.S.W. Dep’t of Communities & Justice, General Information About Safer Pathway (Oct. 6, 2023); N.S.W. Dep’t of Communities & Justice, Domestic Violence Safety Assessment Tool (Apr. 29, 2026). No system can promise complete safety, but these approaches are based on the right idea: high-risk cases need a team response that goes beyond just giving an order. A New York High-Risk Protection Protocol New York should improve its system by establishing a statewide High-Risk Domestic Violence Protection Protocol. This protocol should not depend on the decisions of individual courts, prosecutors, police, or service providers. Instead, it should activate automatically when a Temporary Order of Protection is issued and there are clear signs of serious danger. At minimum, the protocol should include: Mandatory lethality assessment at the time emergency relief is considered, including the victim’s perception of danger Automatic referral of serious-threat cases to a multidisciplinary high-risk team Immediate firearm verification, including confirmation of surrender and access to unregistered weapons, ammunition, and third-party firearms Emergency practical protection, including relocation, secure communications, transportation, workplace and school safety planning, and technology-stalking assessment Continuing judicial review to confirm service, firearm compliance, violations, changes in risk, and implementation of the protection plan Carefully limited information sharing with confidentiality, due process, privilege, medical privacy, and record-security safeguards in place The aim is not to take away judicial discretion or weaken due process. People must still receive notice, a meaningful opportunity to be heard, decisions tailored to their situation, fair conditions, set time limits, and regular reviews. But due process does not mean courts and agencies should ignore real evidence of deadly risk. The Required Shift: From Paper Protection to Real Protection This reform is both urgent and about changing how we think. New York should look beyond just past violations and focus on taking action to prevent deadly harm to those who need protection. A Temporary Order of Protection remains important. However, when there are clear signs of possible homicide, it should prompt risk assessment, teamwork, firearm checks, safety planning, and continued oversight. A written order by itself cannot stop violence. But if the legal system treats a high-risk protection order as an urgent warning rather than the last resort, it could help prevent future harm. New York should adopt this approach.
August 12, 2026
Family Law
AI is Coming to Divorce Court
Divorce litigation has always been a search for the truth. For decades, divorce attorneys have asked the same fundamental questions: Who owns what property? How should assets be valued and divided? What income is available for support? And when children are involved, what arrangements truly serve their best interests? Throughout the years, those questions have not changed. What has changed is the technological landscape in which they are being asked. Artificial intelligence (“AI”) is now entering nearly every profession, and the practice of matrimonial law is no exception. While AI cannot replace the judgment, discretion, and ethical responsibilities of experienced attorneys and judges, it is beginning to influence how divorce cases are investigated, prepared, and litigated. Three developments, in particular, suggest that divorce law is entering a new technological era: the use of AI to uncover financial information, the emerging risk of fabricated digital evidence, and the increasing tendency of litigants themselves to turn to AI for guidance. The Search for Hidden Assets One of the oldest battles in divorce litigation is the search for undisclosed assets. For as long as equitable distribution and community property regimes have existed, spouses have attempted to conceal income, transfer funds into undisclosed accounts, or minimize the apparent value of businesses and investments. In complex cases, uncovering the true financial picture can require months of discovery and painstaking review of bank records, tax returns, and corporate documents. AI is beginning to assist in this process. AI-driven financial analysis tools can review vast quantities of financial data and identify unusual patterns that might otherwise escape detection. These systems can flag repeated transfers to unfamiliar accounts, discrepancies between reported income and actual spending, or unexplained fluctuations in business revenues. In cases involving closely held businesses or high volumes of transactions, AI can help identify areas that warrant closer scrutiny far more quickly than traditional manual review. For example, recently a case concerning a professional practice with thousands of annual transactions, used AI-assisted analysis which detected a recurring pattern of transfers to an entity, newly formed shortly before the commencement of divorce proceedings — an anomaly that justified targeted discovery and expert evaluation. Still, technology alone cannot resolve these issues. AI can identify anomalies, but determining whether those anomalies reflect legitimate business activity or intentional concealment requires professional judgment. Forensic accountants, financial experts, and experienced matrimonial attorneys remain indispensable in interpreting results and presenting them persuasively to the court. AI has become — and with constant innovation will continue to be — a powerful investigative tool. Yet it can never substitute for the human capacity to perceive and interpret the subtle factual nuances of a case, apply the law accordingly, and ultimately serve as the finder of fact. The Emerging Threat of Artificial Evidence If AI can help uncover the truth, it can also be used to manufacture it. Courts across the country are beginning to confront the growing phenomenon of AI-generated content, often referred to as “deepfakes.” With increasingly sophisticated software, it is now possible to create highly realistic audio recordings, text messages, photographs, and even video footage depicting events that never occurred. In the emotionally charged context of divorce litigation, the risk of misuse is significant. A fabricated text message purporting to show financial misconduct, or a manipulated audio recording suggesting threats or coercion, could be introduced as evidence. Even if ultimately disproven, such materials may complicate litigation, increase costs, and prolong disputes, particularly at early stages when courts are making interim decisions about custody, support, or exclusive occupancy of the marital residence. Family law practitioners have always confronted questions of authenticity, but AI raises the stakes considerably. As digital evidence becomes easier to fabricate, courts will likely require more rigorous methods of authentication. Judges, attorneys, and forensic experts will increasingly need to assess not only what evidence appears to show, but how it was created, preserved, and verified. The law of evidence has always evolved alongside technological change. AI is likely to accelerate that evolution. When Litigants Turn to Artificial Intelligence Another development is already underway, though often less visible. Individuals contemplating divorce increasingly turn to AI tools to educate themselves about the legal process before consulting an attorney. AI systems can explain general legal concepts, summarize procedures, and even generate draft settlement proposals. I experienced this first-hand when moments after sending a proposed settlement offer to my client, she ran it through ChatGPT and was advised that the proposed offer was suitable. In some respects, this trend may be beneficial. Divorce is often intimidating and confusing, and access to basic information may help individuals better understand their rights and obligations. At the same time, divorce law is highly nuanced and intensely fact specific. Outcomes often depend on subtle distinctions in financial circumstances, statutory interpretation, and judicial discretion, factors that cannot be reduced to generalized responses. While AI can provide information, it cannot provide strategy, advocacy, or judgment. Those functions remain the province of experienced legal professionals who understand not only the law, but how courts apply it in practice. New Technology, Old Questions, and the Future of Matrimonial Litigation AI will almost certainly change the manner in which divorce cases are prepared and litigated. Financial investigations may become faster and more data-driven. Evidentiary standards may tighten in response to synthetic digital content. Clients may arrive at initial consultations better informed, and sometimes misinformed, by AI-generated advice. Yet the essential work of divorce law will remain stubbornly human. Lawyers must still exercise judgment, advise clients through emotionally charged decisions, and advocate for fair outcomes. Judges must still evaluate credibility, weigh evidence, and craft equitable resolutions for families navigating a profound personal change. In Closing As AI becomes more embedded in the divorce process, courts and practitioners will need to adapt thoughtfully, embracing technology where it enhances accuracy and efficiency, while remaining vigilant against its misuse. The future of matrimonial litigation will be shaped not by machines alone, but by the wisdom with which legal professionals choose to use them.
May 5, 2026
Family Law
In Depth Crypto Secrets and Divorce: Valuing Hidden Wealth in New York Splits
As cryptocurrency moves from the margins of finance into the mainstream, matrimonial practitioners are increasingly encountering digital assets in divorce proceedings. Assets such as Bitcoin, Ethereum, and other blockchain-based tokens, once considered speculative investments, now appear regularly within marital estates. The presence of cryptocurrency in a divorce raises issues that traditional financial assets rarely present. These assets exist outside conventional banking systems, are often held in decentralized digital wallets, and may be transferred or stored in ways that are not immediately apparent from traditional financial records. As a result, identifying, valuing, and dividing cryptocurrency can present unique challenges during equitable distribution proceedings. Under New York law, cryptocurrency is generally treated as property subject to equitable distribution if acquired during the marriage. However, its technological structure, market volatility, and potential for concealment often complicate discovery and valuation. For matrimonial attorneys and litigants alike, understanding how courts approach digital assets has become an increasingly important component of modern divorce practice. Understanding Cryptocurrency Cryptocurrency is a digital asset that uses cryptographic technology and decentralized networks to verify and record transactions. Unlike traditional currencies issued by governments or central banks, cryptocurrency operates on a distributed ledger known as a blockchain. The blockchain functions as a permanent digital record of transactions maintained across a network of computers. While these transactions are publicly recorded, the individuals behind them are typically identified only by alphanumeric wallet addresses rather than by name. This structure creates a level of pseudonymity that can complicate efforts to identify ownership. Control of cryptocurrency is determined by possession of private cryptographic keys associated with a digital wallet. Whoever holds the private keys effectively controls the asset. Cryptocurrency may be stored through online exchanges, mobile wallets, hardware wallets, or offline storage devices, often referred to as “cold storage.” While the technology underlying cryptocurrency offers transparency because transactions are permanently recorded on the blockchain, it also creates practical challenges when these assets must be addressed in a matrimonial context. Cryptocurrency as Marital Property in New York New York is an equitable distribution state governed by Domestic Relations Law §236(B). Under this framework, marital property is distributed in a manner the court considers fair under the circumstances, though not necessarily equal. For purposes of equitable distribution, cryptocurrency is generally treated as property in the same manner as other financial investments. Digital assets acquired during the marriage are therefore typically considered marital property subject to distribution. Conversely, cryptocurrency acquired prior to the marriage, or received individually by gift or inheritance, may be considered separate property, provided it has not been commingled with marital assets. Practitioners are increasingly encountering cases where one spouse began investing in digital assets years before the marriage, but continued trading during the marriage using marital funds. In those circumstances, careful tracing is often required to determine what portion of the asset may remain separate and what portion may be marital. Discovery and Identification of Cryptocurrency Perhaps the most significant challenge in cases involving cryptocurrency is identifying whether such assets exist in the first place. Traditional financial accounts generate regular statements and leave clear documentary trails. Cryptocurrency, by contrast, may be stored in decentralized wallets that are not tied to any financial institution. As a result, the existence of these assets may not be readily apparent from standard financial disclosures. Ownership of cryptocurrency is not determined by whose name appears on an account, but rather by who controls the private keys associated with the digital wallet. A spouse who controls those keys effectively controls the asset. For this reason, discovery in cases involving cryptocurrency often requires a detailed examination of financial records. Attorneys frequently review bank and credit card records for transfers to cryptocurrency exchanges such as Coinbase, Binance.US, Kraken, Uphold, or Gemini, as well as unexplained withdrawals or transfers that may indicate digital asset purchases. Common discovery tools include subpoenas to exchanges, requests for wallet addresses and transaction histories, and forensic analysis of electronic devices and financial accounts. Although cryptocurrency is sometimes perceived as anonymous, transactions recorded on the blockchain are permanent and publicly available. When analyzed by professionals familiar with blockchain technology, these records can often reveal patterns of transactions and help trace the movement of digital assets. In several recent matters handled by the New York Supreme Court, the Court has permitted expanded financial discovery when credible evidence suggested undisclosed digital asset holdings. As with other financial assets, the failure to disclose cryptocurrency may result in sanctions, adverse inferences, or adjustments to equitable distribution. Valuation Considerations Once cryptocurrency has been identified as part of the marital estate, determining its value presents additional challenges. Cryptocurrency markets are well known for their volatility. Prices may fluctuate dramatically within hours or days, which can complicate the valuation process. In New York divorce proceedings, courts may value marital property as of the date of commencement of the action, the date of trial, or another date deemed equitable under the circumstances. Given the volatility of digital assets, the selection of the valuation date can significantly affect the final distribution. Practitioners often retain financial experts to analyze historical pricing data from major exchanges and determine a reliable fair market value. In cases involving substantial holdings, experts may calculate average pricing over a defined period in order to minimize the impact of short‑term market fluctuations. Methods of Distribution Once cryptocurrency has been identified and valued, the parties or the court must determine how the asset will be distributed as part of equitable distribution. Several approaches are commonly used. In‑Kind Division One option is to divide the cryptocurrency itself between the parties. Each spouse receives a proportionate share of the digital asset. While this allows both parties to share in future gains or losses, it also requires both individuals to maintain secure digital wallets and understand how to manage the asset. Buyout or Offset In many cases, one spouse retains the cryptocurrency while the other receives an offsetting asset of comparable value, such as cash or additional equity in the marital residence. This approach is often preferred when only one spouse was actively involved in managing digital investments during the marriage. Liquidation Another option is to sell the cryptocurrency and divide the proceeds. This approach eliminates the uncertainty associated with price volatility, but may create tax consequences depending on the asset’s appreciation and holding period. Concealment Concerns The decentralized nature of cryptocurrency can make it easier for individuals to attempt to conceal assets during divorce proceedings. Digital assets can be transferred rapidly between wallets or across exchanges in ways that may initially appear difficult to trace. In some instances, individuals attempt to obscure transaction histories by transferring assets through multiple wallets or converting them into privacy‑focused tokens. Despite these challenges, blockchain technology can also work in favor of investigators. Because blockchain transactions are permanently recorded, forensic specialists are often able to reconstruct transaction histories and trace the movement of funds. In practice, experienced matrimonial attorneys are increasingly working with forensic accountants and blockchain analysts to determine whether undisclosed digital assets exist. Tax Implications Cryptocurrency also raises important tax considerations in divorce proceedings. The Internal Revenue Service treats cryptocurrency as property rather than currency. As a result, selling cryptocurrency to divide proceeds may generate capital gains taxes depending on the asset’s cost basis and holding period. Transfers of cryptocurrency between spouses incident to divorce may qualify for non‑recognition of gain under federal tax law. However, the receiving spouse generally assumes the original cost basis of the asset, which can create tax implications when the asset is later sold. Accordingly, tax consequences should be carefully evaluated when structuring any settlement involving digital assets. The Role of Experts As cryptocurrency becomes more prevalent in marital estates, the role of financial and forensic experts in matrimonial litigation continue to expand. Professionals experienced in blockchain analysis and digital asset valuation can assist attorneys and courts in identifying hidden assets, tracing transaction histories, and determining fair market value. In complex cases involving substantial digital holdings, these experts often provide the evidentiary foundation necessary for courts to confidently include digital assets within the marital estate. Conclusion By 2030, the global cryptocurrency market is expected to surpass $3 trillion in value. As digital assets continue to expand within personal and marital financial portfolios, understanding how these holdings are identified, valued, and equitably distributed in a New York divorce has become not merely important, but essential. Coin Market Cap is an online platform that provides data on the cryptocurrency market.
March 13, 2026
Family Law
Trust Structures Under Fire: What High-Net-Worth Divorce Means for Advisers
What began as a high-asset marital dissolution between John and Laura Overdeck has transformed into a wide-ranging challenge to modern trust planning and the professionals who support it. The litigation now reaches beyond the parties’ marriage and calls into question long-held assumptions about the durability of “irrevocable” trusts—particularly when they are funded during the marriage with assistance from lawyers, trustees, or corporate personnel. Regardless of where the facts ultimately fall, the case is already functioning as a bellwether. It forces practitioners, wealth managers, and corporate stakeholders to confront a reality that has been developing quietly for years: in today’s financial landscape, trust structures and corporate entities are no longer insulated from matrimonial disputes merely because they were designed to be. Background According to the pleadings, Laura Overdeck alleges that billions in marital assets were transferred into a series of Wyoming trusts with assistance from Seward & Kissel and, allegedly, certain Two Sigma employees. Her proposed amended complaint adds claims for fraudulent conveyance, aiding and abetting breach of fiduciary duty, civil conspiracy, and professional negligence tied to what she asserts was a deliberate effort to “divorce-proof” assets. If the amendment is granted, the litigation expands dramatically. It becomes not just a battle over distribution, but a test of how far courts may go in scrutinizing complex trust structures created during the marriage. Why High-Net-Worth Divorce Has Escaped the Bounds of Matrimonial Court For decades, matrimonial courts were the default arena for resolving marital property issues. That model worked when most marital estates consisted of real estate, traditional investments, and business interests that were relatively easy to value. That world is gone. Modern high-net-worth estates are built from layered LLCs, private-equity, and hedge-fund interests, carried interest, offshore vehicles, and sophisticated donor-advised and trust networks. Matrimonial courts simply do not have the jurisdictional tools to penetrate these frameworks. The Limits of the Matrimonial Forum Matrimonial courts cannot: compel discovery from non-party trustees, law firms, or corporate insiders adjudicate claims for professional negligence or fraud award damages against third parties unwind complex asset-protection strategies Their jurisdiction is confined to the spouses and the property they can see. The Turn to Parallel Civil and Trust Litigation Ultra-wealthy spouses increasingly turn to civil courts because they offer: extensive document discovery depositions of advisers and corporate personnel forensic transfer analysis fraud-based claims are unavailable in matrimonial court access to internal corporate records and communications Civil litigation becomes the pressure point — often the only means to learn where assets went and who helped move them. The Unique Sensitivity of Business Interests Hedge-fund stakes, founder shares, carried interest, and private-equity interests are typically: illiquid difficult to value highly confidential nested within multiple tiers of entities When a spouse alleges that such interests were transferred into trusts during the marriage with help from insiders or advisers, courts have shown increasing willingness to probe deeply. In the Overdeck matter, even limited survival of Laura’s claims could trigger unprecedented discovery into Two Sigma’s valuations, communications, and internal planning. That level of inquiry into a prominent financial institution — emanating from of a divorce — is extraordinary. Does This Case “Upend” Trust Law? Not Exactly — But It Does Move the Needle John Overdeck argues that permitting these claims would “turn the trust and estate world on its head.” The core architecture of trust law is not in danger. Trusts funded with separate property and managed by independent fiduciaries remain secure. What is threatened is a set of assumptions that practitioners have leaned on for decades: that an irrevocable trust funded during marriage, even with marital assets, is structurally insulated from later attack. Courts have always possessed the authority to scrutinize transfers made to diminish a spouse’s property rights. They have simply exercised that authority sparingly — until now. What Could Now Be Fair Game If the proposed claims proceed, the litigation may reach: communications among trustees, counsel, and corporate personnel the timing and purpose of trust creation the source of funds used to capitalize the trusts any marital discord surrounding the transfers the role of advisers in facilitating asset migration This is precisely the scrutiny many asset-protection strategies have been designed to avoid. Likely Litigation Path if Amendment Is Allowed Significant Discovery Directed at Two Sigma Even as a non-party, Two Sigma could be compelled to produce: valuation materials communications with trust counsel documentation relating to trust funding internal compliance or governance communications For any major financial institution, that type of probing discovery is disruptive and potentially reputationally damaging. Potential Recharacterization of the Trusts A court could determine that the trusts: were funded with marital property were established to reduce the marital estate constitute fraudulent conveyances That does not rewrite trust law; it applies longstanding equitable doctrine to new financial realities. The Practical Outcome: Settlement The combination of business risk, broad discovery, and corporate exposure makes settlement the most probable resolution. But even a confidential settlement will influence future trust planning by high-net-worth families and their advisers. Why This Trend Is Accelerating in Modern High-Net-Worth Divorce Complex Assets Have Outpaced the Traditional System Marital estates today include: private-equity and hedge-fund interests multi-tiered partnerships offshore entities donor-advised funds family-office holdings extensive trust structures These assets are built for opacity. Matrimonial courts were not. Civil Courts Provide the Necessary Tools Civil litigation allows: subpoenas to third parties depositions of advisers and insiders damages theories forensic tracing document production far beyond matrimonial limits Courts Are Less Willing to Accept Trust Structures at Face Value Judges increasingly ask: Who really controls the trust Was marital money used to fund it Were professionals involved in insulating assets Was the structure created in anticipation of marital discord These questions now shape litigation strategy. The Broader Impact: A New Paradigm in High-Net-Worth Divorce The Overdeck litigation signals a systemic shift. More Aggressive Challenges to Marital-Period Trusts Courts will scrutinize: funding sources timing retained control professional involvement Heightened Exposure for Advisers Law firms, trustees, and family-office personnel may face liability for their roles in asset movement — something historically rare. More Conservative Trust Planning Expect: explicit spousal consents prenups and postnups addressing trusts avoidance of marital-funded transfers earlier and cleaner planning Greater Corporate Entanglement Corporations employing wealthy principals should anticipate subpoenas, discovery burdens, and reputational exposure. Parallel Litigation as the New Normal Matrimonial actions will increasingly run alongside: trust litigation fraudulent-transfer suits professional-negligence claims valuation disputes Conclusion This case is far larger than a single marital dispute. It sits at the crossroads of modern wealth planning, trust law, corporate governance, and matrimonial litigation. Whether Laura Overdeck’s claims ultimately prevail, her legal strategy reflects a new reality: spouses are no longer confined to matrimonial court, and courts are increasingly willing to look behind trust structures when significant marital assets may have been moved out of reach. The message for planners, trustees, and corporate advisers is unmistakable: trusts funded during a marriage with marital assets — and the professionals who touched those transfers—are not beyond judicial reach.
December 4, 2025
Family Law
Navigating the Unique Challenges of LGBTQ Divorces in a Changing Legal Landscape
The legalization of same-sex marriage in the United States in 2015 with the landmark Obergefell v. Hodges decision marked a monumental step toward equality. However, the journey does not end with marriage; LGBTQ couples face unique challenges when it comes to divorce. While the process may seem similar to that of heterosexual couples on the surface, the reality reveals nuanced differences rooted in evolving laws, social norms, and disparities in legal protections. Understanding these distinctions is crucial for navigating the complexities of LGBTQ divorces and protecting one’s rights in a constantly shifting legal world. Key Differences Between LGBTQ and Heterosexual Divorces Legal Recognition and the Length of Marriage: Problem For many LGBTQ couples, legal recognition of their relationships began far later than their commitment to one another. States only began recognizing same-sex marriages at different times, leaving couples who were together for decades without a legal timeline for their unions. When it comes to divorce, courts often calculate marital property division, spousal support, and other factors based on the duration of the legally recognized marriage, not the entirety of the relationship. This discrepancy can lead to inequitable outcomes. For example, an LGBTQ couple that was together for 20 years but legally married for only five years may see their financial obligations and property rights evaluated based on the shorter timeline. Custody and Parental Rights Child custody is one of the most contentious areas in divorce, and LGBTQ couples face unique hurdles. Many LGBTQ families rely on alternative reproductive methods, including Artificial Reproductive Technology (ART), surrogacy, adoption, or donor insemination. If only one partner is the biological or legal parent, the non-biological parent’s parental rights may not be automatically recognized, even if they were actively involved in raising the child. This can lead to complex custody battles where courts may prioritize biological connections over emotional bonds. Discrimination in Court While legal protections for LGBTQ individuals have improved, implicit biases still exist within the court system. Some LGBTQ individuals may encounter judges or attorneys who lack experience with or understanding of same-sex family dynamics. This can result in decisions that do not fully account for the nuances of LGBTQ divorces. Division of Assets and Property In LGBTQ divorces, asset division may be complicated by how property and financial arrangements were managed before same-sex marriage became legal. Property acquired before legal recognition of the relationship may be deemed separate property rather than marital property, creating challenges when dividing assets equitably. How to Protect Yourself in an LGBTQ Divorce Preparing and understanding your rights are essential to safeguarding your interests in this evolving legal world. Here are key steps LGBTQ individuals can take to protect themselves: Legal Protections Before Marriage For those entering a marriage, creating a prenuptial agreement is one of the most effective ways to protect assets and clarify financial arrangements. A prenuptial agreement can specify how property will be divided and how spousal support will be managed in the event of a divorce. For those already married, a postnuptial agreement can serve a similar purpose. Address Parental Rights Proactively LGBTQ couples with children should ensure both parents’ legal rights are established, even before a divorce becomes a possibility. For non-biological parents, this may involve formal adoption or obtaining a court order recognizing their parental status. By securing legal parentage, non-biological parents can strengthen their custody and visitation claims in the event of a divorce. Keep Comprehensive Records In cases where the length of the relationship predates legal marriage, maintaining records of financial contributions, shared property and joint decision-making can be invaluable. These records can help demonstrate the extent of the partnership and support equitable asset division during a divorce. Consult an Experienced LGBTQ Divorce Attorney Given the unique legal and social dynamics of LGBTQ divorces, working with an attorney who has specific experience in LGBTQ family law is crucial. Such attorneys understand the complexities of same-sex relationships and can advocate effectively for your rights. Stay Informed About Changing Laws The legal landscape for LGBTQ individuals continues to evolve. Court rulings, legislation, and shifting political climates can impact rights related to marriage, divorce, custody, and more. Staying informed about changes in the law can help you anticipate challenges and adjust your approach as needed. The Ever-Changing Legal Landscape for LGBTQ Divorces While the right to marry was a monumental victory, LGBTQ couples still face challenges that heterosexual couples typically do not. For example, the potential for the Supreme Court to revisit Obergefell v. Hodges or other related rulings creates uncertainty about the durability of marriage rights. Additionally, state laws governing issues such as parental rights, property division, and spousal support vary widely, leading to disparities in how LGBTQ divorces are handled across the country. Recent challenges to protections for LGBTQ individuals, including attempts to narrow the interpretation of anti-discrimination laws and redefine parental rights, underscore the need for vigilance. Advocating for continued progress and awareness ensures equality in the family law system. Conclusion LGBTQ divorces, while sharing similarities with heterosexual divorces, present unique challenges rooted in legal history and societal biases. By understanding these differences and taking proactive steps to protect their rights, LGBTQ individuals can navigate the complexities of divorce with confidence. In an ever-changing legal world, preparation, advocacy, and informed decision-making are the keys to achieving equitable outcomes and safeguarding hard-won rights.
April 17, 2025
Family Law
Examining the US Supreme Court’s “Reverse Discrimination” Case: Fueling the DEI Fight
On February 26, 2025, the U.S. Supreme Court heard oral arguments in Ames v. Ohio Department of Youth Servicesi . This case that could significantly impact the standards for proving employment discrimination claims under Title VII of the Civil Rights Act of 1964. The central issue is whether plaintiffs from majority groups, such as heterosexual individuals, must meet a higher evidentiary standard, showing that the background circumstances of the alleged discrimination support the suspicion that the defendant is that unusual employer who discriminates against the majority (the “background circumstances test”), in order to establish a prima facie case of discrimination. Background Marlean Ames ("Ames"), a heterosexual woman, began working for the Ohio Department of Youth Services in 2004 ("DYS"). In 2019, she applied for a promotion to a newly created bureau chief position but was passed over in favor of a gay woman who had not applied for the role. Subsequently, Ames was demoted to her previous secretarial position, resulting in a significant pay cut, and her former role was filled by a gay man. Ames filed a lawsuit alleging that these employment decisions were based on her sexual orientation, constituting discrimination under Title VII. The district court granted summary judgmentii in favor of the DYS applying the “background circumstances test;” and finding that there was no evidence that the DYS is among the unusual employers who discriminate against the majority. The U.S. Court of Appeals for the Sixth Circuit affirmed this decision, concluding that Ames had not met this heightened evidentiary standard. The Supreme Court Agrees to Hear the Ames Case The Supreme Court agreed to hear Ames’ appeal to address the disparate application of the “background circumstances test” across various circuitsiii. During oral arguments, several justices expressed skepticism about the validity of imposing a higher standard on a majority group. Justice Neil Gorsuch noted the “radical agreement” between both parties that federal employment laws should impose the same requirements on all plaintiffs, regardless of their majority or minority status. Justice Amy Coney Barrett raised concerns that ruling in Ames’ favor could potentially open the door to more employment discrimination lawsuits by making it easier to bring reverse discrimination cases. However, Ames’ counsel argued that eliminating the “background circumstances” rule would not lead to a flood of new cases, citing the experience of circuits that do not apply this heightened standard. Repercussions of the Decision A ruling in favor of Ames could have significant implications for employment discrimination litigation. It would eliminate the additional evidentiary burden currently placed on majority-group plaintiffs in certain circuits, thereby standardizing the requirements for establishing a prima facie case under Title VII. This could lead to an increase in reverse discrimination claims, particularly in contexts involving diversity, equity, and inclusion initiatives. Conversely, if the Court upholds the “background circumstances” requirement, majority-group plaintiffs would continue to face a higher threshold in proving discrimination claims, potentially discouraging such lawsuits. The Supreme Court’s decision is expected by early Summer 2025, and once handed down, has the potential to equalize the legal framework for all discrimination claims under Title VII, ensuring that the statute’s protections are uniformly applied, irrespective of the plaintiff’s majority or minority status.
March 10, 2025
Family Law
New York Takes a Progressive Step with Uncontested Joint Divorce
On January 31, 2025, the Chief Administrative Judge of the State of New York announced an inventive pilot program designed to change how the court system processes divorces, introducing the concept of "uncontested joint divorce" to simplify the divorce process for New Yorkers. While uncontested divorces have been available to New Yorkers since 2010, this new route to divorce allows eligible couples to file and sign their divorce papers together, neither party taking the role of “plaintiff” or “defendant.” It is targeted at reducing the emotional and financial burdens often associated with traditional divorce proceedings. Unlike the traditional divorce process, where one spouse typically initiates the proceedings by alleging one or more of the statutory reasons for ending the marriage, joint divorce recognizes that couples can maturely agree to end their marriage without assigning blame, consenting to a joint divorce on the uncontested divorce basis of the “irretrievable breakdown” in the marital relationship for a period of at least six months (otherwise known as a “no-fault” divorce). To qualify for a joint divorce, both spouses must mutually consent to the divorce and agree on all terms relevant to their particular marital elements, including property division, child custody, parenting time, and support arrangements. Couples can submit a single petition outlining their settlement, which can lead to quicker resolution times compared to traditional divorces and forestall needless tension as they navigate and acclimate themselves (and their family) to their new status as a divorced couple. This program presents various advantages for couples seeking to dissolve their marriages amicably. Not only does it hope to foster a positive environment for negotiation, but it also acknowledges the emotional strain of divorce and seeks to aid in promoting healing over conflict. For couples with children, the joint divorce framework can pave the way for healthier co-parenting arrangements by encouraging collaboration and mutual respect. By prioritizing the well-being of children, parents can establish a supportive foundation for their post-divorce relationship. To provide fairness and promote healthy communication, the program encourages couples to engage in mediation or counseling services before finalizing their joint petition. This step aims to ensure that both parties fully understand the implications of their decisions and maintain a constructive dialogue. By eliminating contentious litigation, joint divorce aims to reduce legal fees for couples. Since the need for prolonged court battles is minimized, couples can save money and allocate resources more effectively. And though the joint divorce process is designed to be cooperative, the court’s ultimate involvement will not be diminished inasmuch as the courts will still examine every submitted agreement for compliance with state laws and to ensure that agreements are fair, reasonable, not overreaching, and in the best interests of any children involved. The courts can and will reject agreements that do not comply with the legal and equitable requirements of New York’s laws. This new program represents a significant positive shift in New York's approach to processing divorces. It reflects changing societal attitudes toward marriage, divorce, and conflict resolution. As more couples prioritize cooperation and transparency, this reform may lead to a cultural shift in how divorce is perceived and managed. As couples embrace this new paradigm, it is essential for those considering divorce to stay informed about their rights and options under this law. Consulting with experienced family law attorneys can help ensure that all agreements are legally sound and that the best interests of all parties involved, particularly children, are upheld.
February 12, 2025
Family Law
Defending Women from Gender Ideology an Individual’s Sex Is Not a Simple Matter
On January 20, 2025, President Donald Trump issued the executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This directive mandates that all federal agencies recognize only two biological sexes -- male and female -- defined at conception. It requires the replacement of the term “gender” with “sex” in official documents and policies and prohibits the use of gender-affirming language and practices within federal operations. Additionally, the order restricts the use of federal funds for gender-affirming care and disallows self-selection of gender on government-issued identification, such as passports and visas. The executive order’s strict binary definition of sex may conflict with existing anti-discrimination laws that have been interpreted to protect individuals based on gender identity. Notably, the Supreme Court’s decision in Bostock v. Clayton County (2020) held that discrimination based on gender identity or sexual orientation constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. By mandating a binary understanding of sex, the order could undermine these protections, leading to potential legal challenges. The order rescinds previous directives that promoted diversity, equity, and inclusion (DEI) within federal agencies and among federal contractors. This includes the revocation of Executive Order 11246, which had prohibited discrimination by federal contractors and required affirmative action to ensure equal employment opportunities. The removal of these protections may lead to increased discrimination claims and legal disputes concerning employment practices. By prohibiting self-selection of gender on federal identification documents, the order may create conflicts with state policies that recognize non-binary or transgender identities. This inconsistency could lead to legal challenges regarding the recognition of gender identity across different jurisdictions and the potential violation of individual rights to privacy and equal protection under the law. The prohibition of federal funding for gender-affirming care, including within federal prisons, raises legal concerns related to the Eighth Amendment’s prohibition against cruel and unusual punishment. Denying necessary medical care to transgender individuals in federal custody could result in litigation alleging deliberate indifference to serious medical needs. Civil rights organizations, including the American Civil Liberties Union (ACLU), have signaled intentions to challenge the executive order in court. Legal arguments are likely to focus on conflicts with established anti-discrimination laws, constitutional protections under the Equal Protection Clause, and precedents set by the Supreme Court affirming the rights of transgender individuals. President Trump’s executive order represents a significant shift in federal policy regarding the recognition of sex and gender. Its implementation is poised to have far-reaching legal implications, particularly concerning anti-discrimination protections, federal employment practices, identification policies, and access to medical care. As legal challenges emerge, courts will play a crucial role in determining the order’s alignment with existing laws and constitutional principles.
February 6, 2025
Family Law
Will the Denial of Gender Affirming Care for Transgender Youth Become the Law of the Land?
On December 4, 2024, the U.S. Supreme Court is scheduled to hear U.S. v. Skrmettii, perhaps the most important trans rights case the justices have ever heard. The landmark case asks whether discrimination against people based on their gender identityii violates the Constitution, a question the Court has never answered. A decision against the trans plaintiffs in Skrmetti could potentially upend the entire legal framework protecting Americans from gender discrimination of all kinds and have a widespread impact on the availability of care for all youth, regardless of sex, nationwide.iii Last year, on March 22, 2023, the Tennessee House of Representatives passed HB1, a law amending the Tennessee Code banning gender-affirming care for transgender minors with a diagnosis of gender dysphoriaiv. The law also criminalizes healthcare providers who administer treatment for transgender youth. More than half of the United States – 26 states, in fact – have passed such bans in recent years.v Tennessee’s Law prohibits all medical treatments that allow a minor to identify with, or live as an individual inconsistent with their assigned sex, and treat the discomfort or distress from a discordance between their biological sex and asserted identity.vi Tennessee’s ban does permit these same hormone medications when they are provided in a way that Tennessee considers “consistent” with a person’s sex designated at birth. Tennessee’s ban has now forced transgender youth who were being treated with puberty blockers and hormone therapy to halt all such care. Transgender teens are now forced to detransition and experience the unwelcome physical effects of puberty that may be mentally and physically debilitating and ultimately destructive, not to mention arduous to later change. Skrmetti comes to the Supreme Court five years after the Court decided a case entitled Bostock v Clayton County, Georgiavii. The Court in Bostock ruled that the 14th Amendment to the U.S. Constitutionviii (the “Equal Protection Clause”) bars discrimination in employment based upon an individual’s “sex,” interpreting the word “sex” to include one’s sexual orientation and gender identity. In its decision, the Court declared that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”ix The Skrmetti plaintiffs’ argument opposing the ban created by Tennessee is based on already existing constitutional law; namely that Tennessee’s ban restricting gender-affirming care for transgender adolescents is a clear example of discrimination on the basis of sex, making it a violation of the Equal Protection Clause of the 14th Amendment of the Constitution. Tennessee’s argument in support of the ban is based on the continuation of historical legal and moral traditions.x The state argues that the Court should ignore their own precedent in Bostock and pay no attention to the Equal Protection Clause; that the Court should expand on its ruling in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and permitted states to ban abortion. Skrmetti will be a major test for the Court; are they willing to stretch Dobbs to allow states to ban other health care? The court’s ruling could serve as a stepping stone toward further limiting access to abortion, IVF, and birth control.xi Although the decision that is ultimately issued by the Supreme Court in Skrmetti will be confined to Tennessee,xii it will have ramifications country-wide. Potential Outcomes There are a range of different outcomes that are foreseeable in a final ruling.xiii A ruling in favor of the Skrmetti plaintiffs could return the case to the lower courts to apply the appropriate standard of review for improper sex-based classifications. A ruling in favor of the Skrmetti plaintiffs that determines that the Bostock definition of “sex” applies, and that the Tennessee ban discriminates on the basis of sex (which violates the Equal Protection Clause), would result in the law being found to be unconstitutional and the Court would strike it down. If the Court upholds the ban, the Tennessee law would remain in effect, depriving trans minors from receiving hormone therapy, greenlighting similar bans already enacted in other states, and potentially emboldening even more states to pass similarly restrictive laws and perhaps even more draconian bans.xiv If the Court agrees that there is discrimination based on transgender status but that that does not fit within the definition of discrimination based on sex, there would be significant damage to any future case regarding transgender rights. However the case is decided, it is likely to have a significant impact on how much deference courts give to bans on medical care to treat gender dysphoria. Conclusion Twenty-six (26) of the fifty (50) states in our union have banned youths from receiving essential medical care for gender dysphoria, throwing the lives of the young people in those states into shambles. What will happen in the months following the December 4th oral argument resulting in the Court’s decision in Skrmetti we must all wait anxiously and expectantly. In the meantime, it is useful to ponder the following facts: Every major medical association including the American Academy of Pediatrics, the American Medical Association (the “AMA”), and leading world health authorities have supported gender affirming care as evidence-based care that transgender people should be able to access (i.e., medically necessary health care), and a best practice. The AMA itself has undertaken a myriad of studies indicating that the failure to provide gender-affirming care can lead to (among other things) dramatic increases in suicide attempts, as well as increased rates of depression and anxiety. While the Supreme Court will specifically address whether transgender youth can be banned from accessing hormone therapy, puberty blockers, and similar medications, the case does not address surgery for transgender youth, which is rarely performedxv. The Court will only determine the challenge to Tennessee’s transgender health care ban under the Equal Protection Clause of the Constitution. It will not decide that portion of the case that argues it is the due process right of parents to make health care decisions for and with their children without governmental hindrance. The Supreme Court’s determination to hear Skrmetti comes after a number of states have enacted restrictions on school sports participation for transgender people, bathroom usage and drag shows. At least 24 states now have laws barring transgender girls and women from competing in certain women’s or girls’ sports competitions. At least 11 states have adopted laws barring transgender girls and women from girls’ and women’s bathrooms at public schools and, in some cases, other government facilitiesxvi. If the Supreme Court agrees with Tennessee’s ban, there is nothing stopping states from banning or restricting other kinds of health care – like what gets covered under Medicaid. A Supreme Court ruling endorsing Tennessee’s ban just because it disagrees with who that treatment is being given to — would enable the government to control people’s health decisions and enact other blatantly discriminatory policies.xvii i Awaiting U.S. Supreme Court citation. Underlying proceedings (i) preliminary injunction granted in part and denied in part, L.W. v. Skrmetti, 679 F. Supp. 3d 668 (M.D. Tenn. 2023); and (ii) preliminary injunction stayed, L.W. v. Skrmetti, 83 F.4th 460 (6th Cir. 2023). ii Transgender, is defined as “[a]n internal sense of being male, female or something else." American Psychological Association, 49 Monitor on Psychology, at 32. iii https://www.vox.com/scotus/385198/supreme-court-transgender-united-states-skrmetti iv As defined by the Mayo Clinic “gender dysphoria is different from simply not conforming to stereotypical gender role behavior. It involves feelings of distress due to a strong, pervasive desire to be another gender.” https://www.mayoclinic.org/diseases-conditions/gender-dysphoria/diagnosis-treatment/drc-20475262 v Over the past two years, the number of states with laws/policies denying gender affirming care has increased from four (4) to twenty-six (26) states (AL, AR, AZ, FL, GA, IA, ID, IN, KY, LA, MO, MS, MT, NC, ND, NE, NH, OH, OK, SC, SD, TN, TX, UT, WV, WY ). vi Tennessee-2023-HB0001-Chaptered.pdf vii 140 S. Ct. 1731 (2020) viii No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ix See Bostock. x That Tennessee has a duty to protect the bodily integrity and health of its residents, especially vulnerable individuals, particularly children, which duty includes the protection of such individuals from harmful and avant- garde medical impositions. And that Tennessee also has a responsibility to its residents to “hold steady, the law’s proper and vital recognition of an objective sexed human nature . . . that male and female are not interchangeable constructs, but divinely ordained realities. See, https://tennesseestands.org/commentary/preserving-the-created-order-reflections-on-usa-v-skrmetti.” xi https://www.aclu-nj.org/en/news/supreme-court-case-trans-health-care-explained xii The State of Kentucky is also a party to the case, so the Court’s decision will effect Kentucky residents as well. xiii https://yaledailynews.com/blog/2024/11/18/law-school-hosts-panel-on-how-united-states-v-skrmetti-puts-transgender-healthcare-on-the-line/ xiv https://lambdalegal.org/lw-v-skrmetti-faq/ xv A recent Journal of the American Medical Association showed 3,600 procedures for transgender patients ages 12 to 18 over the past decade; by contrast, 229,000 U.S. teens had surgical procedures to affirm their cisgender identities in a single year, including breast reductions for boys, or breast augmentation for girls. xvi https://www.lgbtmap.org/equality-maps/youth/sports_participation_bans xvii Comments from Michael Ulrich, associate professor of health law, ethics and human rights at Boston University’s School of Public Health and School of Law at https://19thnews.org/2024/10/how-the-supreme-court-case-on-trans-youth-could-affect-health-care-for-all-americans.
November 25, 2024
Family Law
In Landmark Ruling Pope Francis Approves Priestly Blessings for Same-sex Couples (Under Certain Circumstances)
On December 18, Pope Francis approved a landmark ruling allowing Roman Catholic priests to administer blessings to same-sex couples as long as they are not part of regular Church rituals or liturgies nor given in contexts related to civil unions or weddings. The declaration from the Vatican’s doctrinal office, approved by Pope Francis, said such blessings would not legitimize irregular situations but be a sign that God welcomes all and does not discriminate. Francis’ comments are the first uttered by a pope about such laws. But they are also consistent with his overall approach to LGBTQ people and belief that the Catholic Church should welcome everyone. Earlier this year, in January 2023, Pope Francis criticized laws that criminalized homosexuality as “unjust,” saying “being homosexual isn’t a crime,” and “God loves all his children just as they are” and called on Catholic bishops to welcome LGBTQ people into the Church.1 The formal declaration entitled “Fiducia Supplicans” (“Supplicating Trust”) was subtitled, “On the pastoral meaning of blessings” (“Fiducia Supplicans”), is a resistance to a rigid church, one that excludes people from blessings because they fail doctrinal or moral litmus tests, but also one that turns blessings — including to same-sex couples — into the supports of a new Canon legal structure. The Fiducia Supplicans evolved from a letter Francis sent to two conservative cardinals in October. It reaffirms that marriage is an “exclusive, stable and indissoluble union between a man and a woman, naturally open to conceiving children.” The declaration insists that Mass is not the proper setting for the less formal forms of blessing that could include the blessing of a gay couple, and it repeats that “it is not appropriate for a diocese, a bishops’ conference” or other church structure to issue a formal blessing prayer or ritual for unwed couples. Further, the blessing should not be given “in concurrence” with a civil marriage ceremony to avoid appearing as a sort of church blessing of the union. And it stresses that blessings in question must be non-liturgical in nature, must avoid using set rituals, and avoid the clothing and gestures that are traditional in a wedding. But it says requests for such blessings for same-sex couples should not be denied outright. Priests are to decide on a case-by-case basis and “should not prevent or prohibit the Church’s closeness to people in every situation in which they might seek God’s help through a simple blessing.” “Ultimately, a blessing offers people a means to increase their trust in God,” the document said. “The request for a blessing, thus, expresses and nurtures openness to the transcendence, mercy, and closeness to God in a thousand concrete circumstances of life, which is no small thing in the world in which we live.” Conclusion There has been a small burst of liberal activity in the Catholic Church on several fronts in 2023 from the Vatican’s Office of the Doctrine of the Faith, not just on the LGBTQ issue. On Oct. 31, Francis approved another document, making clear that transgender people can be baptized, serve as godparents, and be witnesses at church weddings, furthering his vision of a more inclusive church. And, for the first time, women and laypeople can vote on specific proposals alongside bishops, a radical change that is evidence of Francis’ belief that the Church is more about its flock than its shepherds. Pope Francis has worked steadily to open the Church to the LGBTQ+ community. For some, his efforts are too much. For others, they are not enough. 1 “Being homosexual isn’t a crime,” Francis said during an exclusive interview on January 24, 2023, with Tuesday with The Associated Press.
December 19, 2023
Family Law
Dirty Tricks Employed by Lawyers and Disregarded by Judges
People are getting smarter nowadays; they are letting lawyers, instead of their conscience, be their guide. (Will Rogers) Divorce proceedings can often be emotionally charged and contentious, requiring individuals to seek legal representation to navigate through the complexities of the process. While most divorce lawyers uphold the highest standards of professionalism and ethics, there are, unfortunately, a few who resort to unscrupulous tactics to gain an advantage for their clients. This article aims to shed light on some commonly known trickery employed in divorce cases, i.e., bad behavior a litigant can expect to see coming from the other side, and with which they will need to cope, inasmuch as judges rarely punish any of this behavior. In other words, as one climbs onto the divorce carousel, make sure to fasten the belt around your waist because it is going to be a bumpy ride [1]. Concealing Assets One of the most prevalent unethical practices involves lawyers helping their clients hide or undervalue assets during the discovery portion of the case, which will ultimately lead directly into the property division segment of the case. This may include transferring assets to third parties, creating fake debts, or underreporting income. Typically, this will involve a lawyer’s failure to produce the financial documents sought by the other side in full or in part. Such actions hinder a fair distribution of marital property and can have severe consequences for the other party involved. Stirring Up Conflict Some lawyers intentionally fuel animosity between divorcing spouses instead of promoting amicable resolutions. By exacerbating conflicts or encouraging their clients to adopt hostile approaches, these lawyers create a more challenging environment for negotiation, causing emotional distress and escalating legal costs. Misrepresentation and False Accusations In pursuit of securing advantageous outcomes, some lawyers resort to presenting false information or distorting facts about the opposing party. This may involve fabricating evidence, making baseless accusations of wrongdoing, or tarnishing the reputation of the other spouse. Such behavior not only undermines the integrity of the legal process but also damages the overall trust between parties. Exploiting Power Imbalances Lawyers are expected to function as advocates for their clients, but when they exploit power imbalances between divorcing spouses, it can lead to unfair negotiations. Manipulating vulnerable clients or bullying the opposing party can distort the outcome and perpetuate injustices within the divorce process. Unnecessary Delays and Legal Maneuvering Some attorneys deliberately prolong divorce proceedings through excessive paperwork, unnecessary motions, or aggressive litigation strategies. This tactic aims to exhaust the opposing party’s financial resources and stamina, forcing them into a disadvantageous settlement or conceding to unfavorable terms out of desperation. Some refer to this as adopting a “scorched earth” policy, i.e., victory or supremacy at all costs [2]. Conclusion While the majority of divorce lawyers adhere to ethical standards, it is crucial to acknowledge the existence of unethical practices that can harm both parties involved in a divorce case. Recognizing these “dirty tricks” allows individuals to be vigilant and seek legal representation from reputable attorneys who prioritize fairness, transparency, and ethical conduct throughout the divorce process. [1] Paraphrase from “All About Eve” (1950). [2] https://www.merriam-webster.com/dictionary/scorched-earth
December 12, 2023
Family Law
Imputation of Income: Rebalancing the Support Scales
Money is like love; it kills slowly and painfully the one who withholds it, and enlivens the other who turns it on his fellow man. (Kahlil Gibran) When one or both spouses in a divorce fail to properly account for their income and expenses or pursue unemployment or underemployment in an attempt to inflate or deflate their or the other’s support obligations, the concept of imputed income can serve to be a great equalizer, rebalancing the marital financial scales. Imputed income can have significant financial consequences for both parties involved. The party against whom imputation is sought may be required to pay higher child support or spousal maintenance, while the party seeking imputation may potentially receive increased financial support. Through the imputation of income, courts can ensure that the proper amount of support is awarded, even in instances where the financial disclosure provided is deemed unreliable or suspect. Imputed income refers to the potential income that a court assigns to a party in a divorce case, even if they are not currently earning that amount or are unemployed. In New York, imputed income can have significant implications for determining child support and spousal maintenance. Under New York law, imputed income is based on a number of factors, including a party’s health, age, and the availability of job opportunities. The Court will strive to be fair and equitable in its determination, taking into account the individual circumstances of each case. This means that the Court will consider such as the party’s education, job experience, skills, and prevailing wage levels in their field when determining an appropriate income to impute. The goal is to ensure that individuals do not intentionally reduce their income to avoid their financial obligations in a divorce. It is important to note that imputed income is not automatic and must be proven by the party seeking it. The Court will carefully consider the evidence presented, including testimony from expert witnesses, to determine whether imputation is appropriate in each case. Examples Of Situations Where Imputed Income May Be Applied Where there is voluntary unemployment or underemployment: If one party voluntarily quits their job or takes a lower-paying job without a valid reason, the court may impute income based on their previous earnings or their earning capacity. When education or training opportunities are rejected: If one party refuses education or training opportunities that could improve their earning potential, the Court may impute income based on what they could have earned with that additional education or training. Where there is an intentional reduction of income: If one party intentionally reduces their income by working fewer hours, taking a lower-paying job, or refusing promotions, the Court may impute income based on their previous earning levels or what they could earn with reasonable effort. When there is unreported or hidden income: If one party attempts to hide or underreport their income to avoid financial obligations, the Court may impute income based on evidence of their true earning capacity. Where questionable Financial Records are produced. If a spouse’s financial records lack credibility or are incomplete. When a party or the parties are living above one’s/their means. If expenses exceed presented income. Where there is a reliance on the generosity of strangers. If a spouse receives gifts from or has ordinary expenses paid by third parties or When there are complicated business structures present. If a spouse appears to have used their business(es) to disguise income. Real-Life Examples Where Income Was Imputed to a Party K. v. K.: The expenses listed on each party’s Statement of Net Worth ($96,624 annually for the wife and $102,636 annually for the husband) far exceeded their respective earnings, and there was no indication that their expenses were not timely being paid. Indeed, both parties acknowledged receiving substantial financial support from their family members. Thus, the Court concluded that that the parties’ financial resources were greater than their self-reported incomes. H. v. B.: $45,000 of income was imputed to the husband based on a brokerage agreement he signed identifying his income as $50,000 per year, documentation showing he held an ownership interest in a trucking business, and the testimony of his ex-wife who worked in the trucking business and had personal knowledge of the company’s payroll. N. v. K.: $46,609 of income was imputed to the husband “based upon his prior income, his training, his choice to pursue only part-time employment, and his current living arrangement, in which he did not pay rent.” S. v. S.: Income of $78,000 per year was imputed to the wife based on evidence at trial that showed she could earn that sum due to her degree and her nurse practitioner license, which was further supported by facts adduced at trial and expert testimony. DV. v. D.: $100,000 of income was imputed to the husband where the expenses he listed in his Statement of Net Worth far exceeded his income as reported on his tax returns, and he lived 3 in a two-bedroom apartment in a luxury apartment building. In addition, after his job for 12 years at a “major bank” was eliminated, he did not demonstrate that he “diligently sought new employment commensurate with his qualifications and experience.” G. v. G.: $151,000 of income was imputed to a wife based on rental income she received from separate property investments and her access to over $500,000 in trust assets that were her separate property. Conclusion In conclusion, imputed income in New York divorce cases is a legal concept that aims to ensure fairness and prevent individuals from intentionally reducing their income to avoid financial obligations. It is important to consult with a qualified family law attorney who can provide personalized advice based on your individual circumstances if you have questions or concerns about imputed income in your divorce case.
December 7, 2023
Family Law
Divorce-Planning: What You Need To Know Now
Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.i Originally posted on 09/15/2020, content updated on 11/15/2023. Tumultuous marriages often turn into tumultuous divorces. Yet many who find themselves in such marriages and resultant divorces are actually taken aback by their spouse’s decision to end their marriage. Even those who assumed their spouse was contemplating a divorce are often dumbfounded to learn their other-half had been planning the financial part of their split for months - even years before filing for divorce. The pre-planning of the financial facets of divorce is so common an occurrence today that it has a name -- divorce-planning. Divorce-planning is neither illegal nor immoral. It is unquestionably smart, and one who does not engage in such preparation will in all likelihood turn the painful process of divorce into a devastating one. The Five Signs Anyone claiming disbelief of their spouse’s divorce-planning either missed or ignored one or more of the indicators of financial pre-planning going on right before their eyes. Though every marriage has its own distinct approach to financial management, there are five indisputable indicators that transcend nuptial uniqueness, and signal that your spouse is engaged in divorce- planning. First: intensified irritability and/or noticeable evasion of questions concerning finances. Once divorce-planning is in motion there may be a noticeable reluctance to discuss the family budget, spending habits or the manner in which (and where) marital income or assets are invested or maintained. If your spouse has nothing to hide, then he/she should have nothing to fear in discussing your marital finances. Second: paper account statements no longer arrive at the marital residence, and other financial documents, especially income tax returns and back-up documentation, are no longer accessible or locatable in the home. Thanks to on-line access to banks, credit cards, brokerage accounts, and the like, a divorce-planning spouse has the ability to receive financial information by email, or by logging into the particular account, or through an “app.” A trusting spouse may not ask why, or even notice that paper statements are no longer being received in the mail, or that financial documents are no longer maintained in the marital residence. Online account access allows a divorce-planning spouse to hide a new bank account, credit line, or credit card from their spouse completely. Removing financial documents from the marital residence will delay the availability of such documents to the other spouse.ii Third: passwords /“PIN” numbers change. It is recommended that everyone change passwords and “PIN” numbers often so as to avoid “hacking.” There should be no reluctance to share new passwords and/or “PIN” numbers between spouses. Discovering changes in passwords and/or “PIN” numbers of which you were not informed may indicate a desire to hide activity. Fourth: requests to alter names on assets. New York and most states recognize a spouse’s marital interest in businesses, real estate, and other assets regardless of the title in which the asset is held. However, if one spouse’s name is removed from ownership of the asset, it will be significantly more difficult for the removed spouse to be apprised of transfers in ownership or the creation of liens against an asset, potentially decreasing the value of the asset in the divorce. If your spouse asks you to voluntarily remove your name from an asset -- or you discover that your name has fraudulently been removed from an asset -- divorce-planning is in progress. Fifth: threats of retaliation. Spouses may joke on occasion about what would happen, or what they would do if their spouse divorced them. However, if a spouse makes veiled references about leaving their spouse destitute or taking their child(ren) away from them, such remarks must be taken seriously. A spouse threatening or trying to control the other is probably stalling in order to complete their divorce planning. Further, remarks such as these are often intended to intimidate the other spouse from preparing themselves for divorce. The Game Plan Proactive planning -- divorce planning – should begin at the earliest sign that divorce is on the horizon. Do what needs to be done for your financial protection. Consider, and effectuate as many the following recommendations as possible: Finances, Privacy, and Asset Protection Stop using the family computer. Back up all computers/devices with all data and pictures on a portable hard drive (or use a cloud-based backup). Purchase your own computer, password protect it and keep your new computer away from your home, in a secure location. Change ALL of your passwords and “PIN” numbers. Open a new email account and use it exclusively for communication with your divorce attorney. Obtain a mailbox at a UPS Store or a P.O Box at a Post Office. Use that address for any and all personal mail/packages. Make copies of all account statements, bank, brokerage, credit card, IRA, 401(k), pension and profit-sharing plans, and tax returns for the last three years. Learn everything you can about your family's finances, your spouse's income, and the cost of running your household and collect the paperwork to support that knowledge. This will give you a head start on gathering those documents; you will need them during the divorce action. Put aside enough money for living expenses – approximately six months’ worth – and deposit the money into a separate account, in a bank where neither you nor your spouse has other accounts, and title the account in your name alone. Access and review the statements online only. Update your Will and exclude your spouseiii; amend your Power of Attorney, Medical Power of Attorney, and any other estate planning documents. Change beneficiaries on your life insurance, IRA, and retirement accounts.iv Open at least one credit card in your name only. As above, access and review the statements online only. Obtain a new/additional cell phone, with a new phone number, on a carrier different from the one you currently use. View/access the statements/bills for your new phone on-line only. Add your attorney to your contacts under a pseudonym. Consider what items in the marital residence have a particular meaning to you, perhaps a family heirloom, family photographs, or antiques. Determine which items you would be saddened to lose if your spouse removed them. Be prepared to remove these items when your attorney tells you. Take photographs and videos of the inside (and outside) of your home(s) clearly showing furniture, art, antiques, and your other belongings then in existence so that you can note in the event something “disappears.” If you have a safe deposit box, make an inventory of, and photograph its contents. Put your passport (and those of your child or children) in a secure place, away from your home. Managing Personal Expectations Divorce-planning is not solely a mechanical/financial process. It is also time to take stock in yourself emotionally (and physically) and find the best professionals to guide you through what will be a difficult period in your life. If you have not done so already, start seeing a psychologist to counsel you through your own transition issues. Join and attend appropriate support group meetings. If you do not have a therapist/psychologist or some other form of a counselor, start researching, and obtaining references for one for yourself and one for your children. Divorce often has a deep and lasting psychological effect on the children of the marriage, subtle though it may seem on the surface. As part of divorce- planning parents can and should take steps to reduce the psychological effects of divorce on their children. Start by seeing a counselor or therapist for yourself, and then lead into hiring a counselor/therapist for your children. Perhaps the most important part of divorce-planning is the selection of an attorney. Do your research again. Hire a highly experienced divorce attorney, fund the retainer, and follow your attorney’s advice. If your attorney advises it, meet with other leading divorce attorneys to conflict them out of the case.v Last, but not least, be mindful and wary of social media and other pictures, texts, and emails. Anything you post or publish can be used as evidence in Court. Do not post anything that you would be embarrassed to see on the front page of a newspaper. And, do not start searching for your next love interest during the divorce-planning period. Stay off of any dating website. Conclusion Divorce -planning is not about hiding, dissipating, or wasting marital assets. It is about protecting yourself and your assets and making shrewd choices when your mind is clear, long before you are caught up in the whirlwind of divorce. It requires logical preparation in the months leading up to a divorce. There is no blueprint for marriage, neither is there a blueprint for divorce. But diligent, pragmatic, and early preparation --- divorce-planning -- can start you off on a better footing, and ease the path ahead. i Sun Tzu: The Art of War Divorce laws of all states provide that both spouses have the right to “discover” (obtain) virtually any financial document or piece of information about the other spouse and the marriage going back to the day the parties married, However, a bird in the hand is worth two in the bush -- it is better to hold onto these documents, have them in your possession than to risk the time and effort in trying to get them back. iii See a Trust and Estate Attorney in your State. In some states excluding a spouse does not guarantee that he or she will not receive any monies from your estate. iv Sometimes you cannot do this until you are officially divorced, but try to do whatever you can now. In addition, upon commencement of a divorce, it is likely that you will be restrained from modifying assets including changing beneficiaries on a life insurance policy. So make the change now. v This is a highly controversial, and “hardball” move. It is an aggressive tactic. It is certainly part of the divorce-planning strategy but is often looked upon as sharp practice.
November 15, 2023
Family Law
The Role of Forensics in Child Custody Cases in 2023: Ensuring the Best Interests of the Child
Child custody cases are among the most emotionally charged and complex legal matters. In recent years, the integration of forensic evidence has become increasingly important in determining the best interests of the child involved. This article explores the significance of forensics in child custody cases and how it aids in ensuring the well-being and safety of the child. The Evolving Role of Forensic Evidence: Forensic evidence in child custody cases encompasses a wide range of disciplines, including psychology, social work, and mental health evaluations. These evaluations help assess the child's emotional, mental, and physical well-being, as well as the capabilities and suitability of each parent to provide a nurturing environment. Objectivity and Expertise: Forensic professionals are trained to approach child custody evaluations objectively, utilizing scientifically validated methodologies and standardized assessment tools. Their expertise helps the court make informed decisions, considering factors such as parental abilities, parenting styles, home environments, and relationships with extended family members. Assessing Allegations of Abuse or Neglect: In cases where allegations of abuse or neglect arise, forensic evaluations play a crucial role. Professionals may perform interviews, review medical records, and conduct investigations to determine the veracity of such claims. This evidence-based approach ensures that the child's physical and emotional safety remains Coordinating with Other Professionals: Forensic experts often collaborate with other professionals involved in the case, such as therapists, child protective service workers, and attorneys. This collaboration enables a comprehensive understanding of the child's unique circumstances and facilitates the development of appropriate recommendations for custody arrangements. Issues of Parental Alienation: Forensic evaluations also address concerns related to parental alienation, where one parent attempts to manipulate or undermine the child's relationship with the other parent. These evaluations delve into the dynamics between parents and children to identify signs of alienation and make recommendations for intervention if necessary. Ensuring Ethical Standards: Forensic professionals adhere to ethical guidelines, ensuring impartiality, confidentiality, and respect for the child's rights. They are committed to understanding cultural, ethnic, and religious diversity, which may influence the child's upbringing and well-being. Conclusion In 2023, the integration of forensic evidence in child custody cases continues to play a crucial role in safeguarding the best interests of the child involved. The use of objective, evidence-based assessments allows courts to make informed decisions that prioritize the child's well-being, safety, and long-term development. By relying on forensic evaluations, the legal system strives to ensure fairness, accuracy, and justice for all parties involved in child custody disputes.
October 26, 2023
Family Law
The Child-Parent Security Act and Compensated Surrogacy
Originally posted on 10/23/2020, content updated on 10/25/2023 On February 21, 2021 New York’s long-time ban on compensated gestational surrogacy ended as the New York Child-Parent Security Act (“CPSA” or the “Act”) became effective, providing those New Yorkers who relied upon assisted reproductive technology (“ART”) in order to have children, a far easier path to establishing their legal parental rights.i The Act is detailed and comprehensive, providing clear procedural requirements (which must be followed) to ensure the legality of the gestational surrogacy, and therein secure, in the simplest manner possible, the legal relationship between infant and intended parent. In gestational surrogacy, the gestational carrier cannot be biologically related to the child she is carrying, and, in New York surrogacy arrangements where the surrogate provides/provided the egg, continue to be prohibited. Prior to the passage of the CPSA, future parents needing the assistance of a compensated surrogate to have a child had no choice but to engage a surrogate who resided and gave birth to the child outside of New York. Costly adoption proceedings were thereafter necessary to secure the legal relationship between the new parents and their child. The CPSA replaces all that with a simple procedure to obtain a pre-birth judgment of parentage, thereby establishing and fixing the legal relationship between parent and child from birth. The Act is gender and marriage neutral (closing old gaps in the law), and determines parentage by reference to the intention to parent rather than a genetic connection that may or may not exist. The Act also addresses disputes arising as a result of cryopreserved embryos that remain after the dissolution of a marriage or non-marital relationship and provides a clear means for the couple to address the issue. The Act additionally creates a novel process, wherein a single intended parent conceiving with donor genetic material may obtain a judgment of parentage declaring him or her to be the only legal parent of the child. Last but far from least, the Act protects not only the child and intended parent(s), but importantly creates a “surrogate’s bill of rights,” setting a new standard for the protection of gestational surrogates, giving them: access to their own independent legal counsel; the right to make health and welfare decisions concerning themselves and the pregnancy; the right to health insurance coverage, life insurance, and psychological counseling; and, the right to decide not to proceed with the pregnancy without any penalties. New Yorkers considering the use of a gestational surrogate should be aware of the expansive changes in law provided by the CPSA, and retain Counsel well versed in the new law, its requirements and complications in order to ensure as trouble-free a process as possible. i Until the passage of the CPSA (signed into law on April 2, 2020), gestational surrogacy was illegal in the state, and punishable by criminal penalties.
October 25, 2023
Family Law
New York Law Extends Support for Handicapped Children Beyond Age 21
In a groundbreaking move, the State of New York became the 41st state to enact a progressive law requiring parents to continue supporting their handicapped children beyond the age of 21. This decision showcases New York’s commitment to ensuring the well-being and inclusion of individuals with disabilities, guaranteeing them a stable future filled with opportunities for growth and independence. Background and Rationale The law amends the Domestic Relations Law and the Family Court Act to allow custodial parents or caregivers of children with “developmental disabilities” to petition a Court to receive support payments until the child is age 26. SeeDomestic Relations Law §240-d; Family Court Act § 413-b. The new law builds upon the existing legal framework surrounding disability rights and represents a significant step forward in promoting inclusivity and equity for all members of society. By extending parental support beyond the traditional age of adulthood, New York aims to bridge the gap between education and independent living for handicapped individuals. Recognizing that disabilities may impede self-sufficiency, this legislation seeks to offer a safety net that promotes their long-term welfare. Key Provisions Who May Seek the Relief: A medical professional must have previously diagnosed the child with a “developmental disability.” The custodial parent or caregiver of the “developmentally disabled” child may petition the Court for relief provided that the child is “principally dependent” on the petitioner and resides with the petitioner. What is the Definition of Developmentally Disabled: A developmental disability is as defined by the Mental Health Law, which includes, but is not limited to, cognitive, developmental, and physical disabilities. The disability must (1) have originated before the child became 22 years old, (2) have continued or can be expected to continue indefinitely, and (3) constitute a substantial handicap to the child’s ability to function normally in society. See Mental Health Law §1.03 (22). Extended Financial Support: Under this law, parents are required to continue providing financial support to their handicapped children beyond the age of 21. This provision ensures that individuals with disabilities have access to basic necessities, healthcare, and other essential support services. Education and Vocational Training: The legislation emphasizes the importance of ongoing education and vocational training for handicapped individuals. Parents are encouraged to facilitate their children’s continuing education or skill development to enhance their employment opportunities and improve their overall quality of life. Guardianship and Decision-making: The law provides provisions for parents to retain guardianship over their handicapped children even after they reach adulthood. This empowers parents to make decisions concerning medical care, housing, and other crucial aspects of their child’s life, ensuring their ongoing well-being and security. Housing and Accommodation: The law recognizes the critical role of suitable housing in fostering independence and mandates parental responsibility in securing appropriate living arrangements for their handicapped children. This provision aims to prevent homelessness and promote inclusive communities that cater to the unique needs of individuals with disabilities. Impact and Implications This progressive legislation has far-reaching implications for disabled individuals and their families. It promotes their physical and emotional well-being and strengthens the foundation for a more inclusive society where every person is valued and included. By removing barriers to independence, New York aims to empower handicapped individuals to lead fulfilling lives, contribute to their communities, and achieve their full potential. Conclusion The passage of the New York law requiring parents to support handicapped children beyond the age of 21 is a significant milestone in disability rights and sets an inspiring example for other states to follow. By recognizing the ongoing needs and challenges faced by handicapped individuals, the law acknowledges the importance of parental support in fostering their independence and overall well-being. It is a step towards creating a more inclusive and compassionate society that values and empowers every member, regardless of their abilities.
October 23, 2023
Family Law
Market Volatility, Retirement Savings and Divorce: Avoiding the Pitfalls in Present and Post-COVID-19 Times
Originally posted on 04/09/2020, content updated on 10/17/2023 Virtually every state in the union has, upon divorce, some form of retirement asset division based upon coverture.[i] The traditional method divides the retirement asset at its value upon the date of the commencement of the divorce action. Distribution of a portion of the asset to the non-employee spouse,[ii] while maintaining the inherent tax benefits of the resource (i.e., such as a 401(k) Plan, defined contribution plans and profit-sharing plans)[iii], requires the implementation of a Court Order known as a Qualified Domestic Relations Order or QDRO.[1] Drafting the QDRO to comport with the determined division to the non-employee spouse was rather uncomplicated when the financial markets were stable. But today is a new day, and one must ask what should be done in today’s market to both protect the asset’s value, while simultaneously not giving away too much? Let’s start with an example: In November 2019 Spouse A agreed to give Spouse B $500,000 when the profit-sharing plan in issue was valued at $1 million. The QDRO is drafted just so. By the time the QDRO is signed this month by the Court, there has been a downturn in the market and the value of the account has dropped to $750,000. Under the explicit terms of the QDRO Spouse A will still have to pay Spouse B $500,000 even if the account is now worth only $750,000. Spouse B is now very happy. Spouse A is fit to be tied! What to do? Avoid Flat Dollar Amounts; Specifically Address Earnings and Losses Flat dollar amounts payable to non-employee spouses create agonizing results when account values shift into retrograde. This is because no provision has been made to adjust the spouse’s amount to account for earnings or losses. That is not to say that the employee owner should not always agree to a flat dollar amount. If he or she is a gambling type – then such audacity may be a successful strategy. If you negotiate a flat dollar amount, you need to understand this risk. The employee-spouse should only agree to this if he/she is willing to take the risk. And only then, if there are sufficient funds to handle an award even if the account value drops significantly. The better way -- is to fix a percentage of the fund in issue to be distributed, and then add a provision along the lines of “including investment earnings and/or losses on that amount [the percentage amount] from [that date] until the date the funds are completely distributed to the [wife/husband].” Or, consider using the date of issuance of the judgment of divorce as the date to update all retirement account values attributable to post-commencement market forces. Even if the account is not actually divided for several years, each spouse will still get exactly what he or she would have received if the account had been divided on the agreed-upon date of division. It is also good practice (though rarely undertaken), with any retirement account to insist that the employee spouse transfer the funds into a stable value fund (if such is available), while the divorce and QDRO are pending. If this option is available, this is the best way to preserve the amount of the account, at least until the QDRO has been executed. Make Sure the QDRO is Prepared Promptly Each financial company, bank, brokerage house, retirement plan etc., has its own particular QDRO, or at least language that must be present in a QDRO. There is no reason to delay in investigating the form needed or the language necessary to undertake the transfer once the case is settled. In short, the QDRO should be researched long before the settlement agreement is inked. There is nothing stopping the attorney from doing so. In fact, this writer makes it a necessary part of the work undertaken as the case is being prepared for trial or settlement. Once the case resolves and the QDRO is prepared, it is then necessary to obtain the approval of the retirement plan’s administrator, so as to ensure that they will accept the form of QDRO and act upon it once it becomes a Court order. When the work is done in a timely manner, a QDRO can be filed at the same time as the settlement agreement. If that is not possible, it must be filed as soon as possible after the divorce is finalized because with further delay the non-employee spouse is putting themselves at risk to lose his/her benefits in a number of situations: The employee-spouse retires and starts drawing benefits without notifying their former spouse. The employee-spouse dies without a QDRO in place that locks in survivor benefits for the non-employee spouse. The employee-spouse takes a loan out that significantly reduces the account balance available for division pursuant to a QDRO. Conclusion Preparedness and diligent practice are the keys to success in ensuring a QDRO is properly written and ready to go. As we lived through a difficult time, and Courts were closed for all but emergency filings, it was more important than ever to get the QDRO process started for settled cases. Despite COVID-19, legal/QDRO teams for plan administrators moved quickly in their pre-approvals. Although we were not able to file the QDRO, best practices dictated having it ready for filing once the Courts opened, so that you did not end up at the bottom of the pile once normalcy returned. [1] Division of an IRA or a Roth IRA upon divorce does not require the use of a QDRO.[i] Historically defined as the condition or state of a married woman, considered to be under her husband’s protection. Used in modern parlance to mean the marital portion of an asset.[ii] Referred to in the law as the “alternate payee.” [iii] Division of an IRA or a Roth IRA upon divorce does not require the use of a QDRO.
October 14, 2023
Family Law
It Took Seven Days To Create The World, And Nearly Fifty Years To Afford Antidiscrimination Protection For All
…the arc of the moral universe is long, but it bends toward justice! [i] Originally posted on 02/25/2021, content updated on 10/06/2023 On May 14, 1974, Bella Abzug, Representative for New York's 20th Congressional District, introduced into Congress the “Equality Act of 1974,” the first piece of federal legislation to address discrimination based on sexual orientation. The act would amend Title VII of the Civil Rights Act of 1964 to prohibit discrimination against gays and lesbians in employment, housing, and public accommodations. Ms. Abzug’s Equality Act, as then presented, failed to pass and was thus relegated to the black hole of unsuccessful legislation and consigned to the annals of LGBTQIA history. Nearly fifty years later, on February 18, 2021, Representative David Cicilline and Senator Jeff Merkley reintroduced the Equality Act,[i] which afforded sweeping, clear, concise, and explicit anti-discrimination protections for all LGBTQIA people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.[ii] The Equality Act[iii] will update existing federal nondiscrimination laws, including the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and several laws regarding employment with the federal government—to unambiguously incorporate sexual orientation and gender identity as protected characteristics. The legislation also explicitly amends the Civil Rights Act of 1964 to extend sex discrimination protections to public spaces and services, including retail stores, banks, legal services, and transportation services. These changes strengthen existing protections for everyone.[iv] Questioning the need for passage of the Act, some have pointed to the June 2020, groundbreaking Supreme Court ruling in Bostock v. Clayton County[v], which made clear that employment discrimination on the basis of sexual orientation or gender identity violates Title VII, and have argued that the Supreme Court’s decision can be stretched in its interpretation to protect LGBTQIA people from discrimination wherever federal law prohibits sex discrimination. The ruling in Bostock is too narrow though, for such a broad interpretation. The Bostock decision is based solely on the very particular facts and legal issues then present before the Court, and does little but scratch the surface in addressing discrimination against LGBTQIA people. The Equality Act however, in its present state, covers it all. The Legislative Process Care must be given however, before the celebration begins. The excitement of the re-introduction of the Equality Act has distracted many from the fact that its passage is not guaranteed. Our legislative process, embodied in our Congress, provides ample opportunity for consideration and debate on every bill presented for passage into law. The open and full discussion provided under the Constitution can result in the notable improvement of a bill by amendment or the demise of a bill by assault and abatement.[vi] Conclusion The patchwork nature of current sex discrimination laws leaves millions of people subject to uncertainty and potential discrimination that impacts their safety, their families, and their day-to-day lives.[viii] Absent the passage of the Equality Act as it is currently constructed, lesbian, gay, bisexual, transgender, queer, intersex and asexual, Americans will still lack basic legal protections in states across the country. [i] H.R.5 - Equality Act 116th Congress (2019-2020). [ii] House Expected To Vote On Sweeping LGBTQ Rights Bill Next Week, NBC News, 2/18/21. [iii] Originally introduced in 2019, the Equality Act passed the Democrat-controlled House in May 2019, but it stalled in the Republican-controlled Senate. [iv] HRC, Take Action, Pass the Equality Act Now, 2/17/21. [v] 590 U.S. ___ ; 140 S. Ct. 1731; 2020 WL 3146686; 2020 U.S. LEXIS 3252. [vi] Much like what happened to the Equality Act of 1974. See also, Congress.gov, How Our Laws Are Made. [vii] Time Magazine Why Federal Laws Don’t Explicitly Ban Discrimination Against LGBT Americans, 3/19. [viii] Lambda Legal, Lambda Legal Hails Introduction of the Equality Act, 2/18/21.
October 6, 2023
Family Law
In A Newly Released Documentary Pope Francis Endorses Same-Sex Unions
Originally posted on 11/03/2020, content updated on 09/15/2023 In the 2018 full-length documentary about the life of Pope Francis entitled Francesco, Pope Francis, for the first time, openly shares his belief that the LGBT community should not only be freely welcomed into the Church, but that the Church needs to embrace, accept and recognize civil unions for same-sex couples. The Pope is clear and unambiguous in his discourse: Homosexuals have a right to be a part of the family… They’re children of God and have a right to a family. Nobody should be thrown out, or be made miserable because of it. This was not the first time Pope Francis has addressed the issue of the gay community and its relationship with the Catholic Church. Francis is believed to be the first pope to use the word “gay” publicly. Soon after becoming Pontiff in 2013, he made headlines when questioned about reports of gay clergy in the Church. Francis answered: “If someone is gay and he searches for the Lord and has good will, who am I to judge?” Whether the Church’s hierarchical authorities will change the teachings of the Church to reflect the Pope’s views is yet to be seen. However, Pope Francis’s forthright support for the religious recognition of formal unions for same-sex couples may be the beginning of a cultural shift in the Church’s views regarding the gay community.
September 15, 2023
Family Law
Domestic Violence: Now an Enumerated Factor in Determining Equitable Distribution
Originally posted on 12/11/2020, content updated on 08/30/2023 While New York was justifiably preoccupied with the COVID pandemic, its Governor at the time quietly signed into law a groundbreaking amendment to that portion of the state’s divorce law governing the distribution of marital property, directing that the Court, in determining the equitable distribution of property, to consider “whether either party has committed an act or acts of domestic violence … against the other party and the nature, extent, duration, and impact of such act or acts.” (2020 NY Senate-Assembly Bill S-7505-B, A-9505-B; New York Domestic Relations Law §236B(5)(d)(14), (as amended)).In New York, marital property is not automatically divided equally. Rather, the division of property is undertaken so as to ensure that there is an “equitable distribution,” based on an enumerated set of factors.[i] In New York, marital property is not automatically divided equally. Rather, the division of property is undertaken so as to ensure that there is an “equitable distribution,” based on an enumerated set of factors.[i] Equal at times may be equitable, and equitable at times may be equal. But they do not mean the same thing. “Equitable” is a model fixed in fair-mindedness. What is fair in the apportionment of assets fluctuates depending on the circumstances. A Court has great flexibility in fashioning an equitable distribution of marital assets subject to the fourteen (now fifteen) enumerated factors set forth in DRL § 236 (B)(5)(d)[ii], which include the: income and property of each party; length of the marriage; age and health of the parties; (any) support award; contributions, whether good or bad, to the acquisition of marital property; future financial circumstances of each party; and the wasteful dissipation of assets. Prior to the law’s amendment, the 14th and final factor was the universal legal catchall of “any other factor which the Court shall expressly find to be just and proper.” This 14th factor was rarely used by the Courts to include domestic violence in the consideration of the division of marital property. Courts have long been wary, indeed at times dismissive of the existence of domestic violence as a factor to be considered in influencing equitable distribution. This has been especially true since 2010, the year New York became a “No Fault” state – no longer requiring that one of six grounds of fault be proven before a divorce would be granted. As a result of no-fault divorce, the use of the one enumerated ground for divorce which permitted a party to interpose allegations of domestic violence, coercive control, physical and emotional cruelty in all forms, collectively referred to as “cruel and inhuman treatment” [iii] — has virtually vanished.[iv] Cases speaking to and utilizing noneconomic marital fault as a consideration in the division of marital property i.e., cruel and inhuman treatment — have been generally held to a standard wherein the Court determined that the abusive behavior was shocking to the conscience of the Court, i.e., “egregious or outrageous” — though those terms were never defined with any specificity.[v] Essentially, if the act or acts of domestic violence proffered to a Court did not rise to that particular Judge’s individual interpretation of egregious or outrageous conduct, then the act or acts were not considered in the context of DRL §236B. Now, however, with the amendment of Domestic Relations Law §236B(5)(d)(14), judges must include in their determinations of the equitable distribution of marital property all acts of domestic violence, in all of their iterations. Domestic violence as a consideration is no longer “left to the fates.” Rather, its existence is a specific factor that the Courts are required to confront, address and measure in their apportionment of marital assets. [i] K. v B., 13 AD3d 12, 17 (1st Dept 2004). [ii] G.R. v K.R., 2020 NY Slip Op 50976(U). August 21, 2020. Sup.Ct., New York County, Cooper, J. [iii] DRL 170(1): Cruel and inhuman treatment such that the conduct of the defendant so endangers the physical or mental wellbeing of the plaintiff as renders it unsafe or improper to cohabit with the defendant. [iv] Though it remains a viable ground for divorce, as do the other previously existing grounds for divorce. [v] Blickstein v. Blickstein, 99 A.D.2d 287 (2nd Dept. 1984),
August 30, 2023
Family Law
Collaborative Divorce: The Time is Now
Originally posted on 04/28/2020, content updated on 08/14/2023 “Divorce: a resumption of diplomatic relations and rectification of boundaries.” [i] We were in uncharted waters — living life in lockdown — many, for the very first time, spent prolonged periods together with spouses and children. The stress of extended family confinement and forced comradery has taken its toll on many marriages. Some marriages were already in the midst of breaking apart and others became ripe for divorce. Initially, Courts were closed for all but emergency matters; divorce not being one of them. Recently, the Courts began to expand their repertoire of cases[ii], but the existing ban on the filing of, or hearings on, new “non-essential” matters, translation – contested divorces — remained in effect. So, what can be done now to move forward with a divorce? Since many Courts are refusing to permit the filing of new contested divorce cases, and are courteously abstaining[iii] from moving divorce matters along, the choice of either commencing a divorce in a Collaborative setting or moving an active case from litigation to Collaboration makes eminent sense. Moreover, it all can be undertaken in “cyber-space.” Consultations, negotiations, and group meetings — all aspects of the Collaborative process in divorce can be done from the safety of your home via Skype, Microsoft Teams, Zoom[iv] or any other online meeting platform. What is Collaborative Divorce? Why collaborate? The answer is simple: control, cost, and speed. If you and your spouse: (i) do not want to wait for the Courts to re-open to start or continue a divorce, and are seeking a somewhat kinder/gentler resolution of your marital issues; (ii) wish to keep costs down; and (iii) desire a speedier conclusion to marital problems than traditional divorce litigation, then Collaborative divorce should be of considerable interest to you. A Collaborative divorce most closely resembles mediation; but it is not mediation (as will be discussed below). It is a divorce where the parties side-step combative litigation and instead commit to resolve their issues in a manner that is mutually beneficial. The Collaborative process proceeds in much the same manner as a traditional litigated divorce. The issues are the same: from custody and visitation of the parties’ children, to asset division and support.[v] The parties and their attorneys learn about the issues before proceeding with resolution. Where it differs from litigation is that the parties and their attorneys work together to resolve the case.[vi] The attorneys then prepare a proposed settlement agreement and the parties sign. The divorce is essentially all done on paper. Rarely will a Court appearance (other than an uncontested divorce hearing) be necessary.[vii] Unlike mediation, Collaborative lawyers work both on behalf of their clients and together, as they negotiate and enable resolution. In mediation a mediator facilitates negotiation but is neutral. In Collaborative practice the parties agree to cooperate and actively accomplish a settlement. In mediation, the parties need not retain counsel and do not commit to achieve anything. Thus, absent counsel and a commitment to a non-litigated conclusion, there is a latent risk to a party in mediation, in terms of duress, over-reaching, and lack of informed consent. Proceeding with a Collaborative divorce requires that each party hire a lawyer who engages in Collaborative practice.[viii] Once selected, the parties and their respective counsel will sign an agreement by which both parties commit to the Collaborative process, i.e., transparency of relevant information, mutual problem solving and a mutually beneficial resolution; a win-win if you will. The attorneys and their clients will meet separately, and speak together on as many occasions as is necessary, and then meet jointly (both attorneys, both clients) as often as needed to resolve the divorce. Rather than engage in costly legal battles, attorneys in the Collaborative process guide their clients through dispute resolution, working together with the parties to gather information and generate options for settlement. The attorneys enable and promote problem solving; they can neither promote nor threaten adversarial engagement. A crucial element of a Collaborative agreement is that the parties agree that they will not seek Court intervention for a dispute. If either does, the attorneys must withdraw. Collaborative counsel cannot represent their respective clients in contested hearings in Court. Another essential element of the Collaborative process is transparency, that each party agrees to disclose voluntarily all relevant information. One of the biggest drivers of legal fees in a litigated case is discovery disputes: the effort of one spouse to obtain information that is not forthcoming from the other spouse. In the Collaborative process, both spouses make a commitment to turning over all relevant information; each spouse pledges that he or she will not take advantage of a misunderstanding of the other party, but instead will seek affirmatively to correct any misunderstanding by the other spouse. Collaborative divorce being more transparent, straightforward, and effectual, is usually more cost-efficient. By working together to generate, prioritize and implement alternatives for a solution—instead of provoking anger, enabling blame, and airing long held grievances—there is ample opportunity to strive for quicker results that can satisfy more of both parties’ respective goals. Complete disclosure and facilitated communications with all eyes focused on problem-solving, enable the parties to address and deal with all issues without wasting time on destructive battles. Since the matter is settled out of Court, there is no need for the numerous Court appearances and scheduling dates necessary with litigation. Experience shows that Collaborative divorce cases generally take less time than litigated ones. Finally, last, but not least, Collaborative divorce need not originate as a Collaborative matter. These writers have personally represented individuals in the Collaborative process who chose to leave their litigated divorce actions behind, and decided to reach agreement with their spouse in a much faster manner and with less sturm and drang. Conclusion Particularly in our then-current climate, spouses needed to consider alternatives to the Courts to resolve their differences. Parties wishing to divorce or proceed with their divorce actions were locked out of our adversarial judicial system, and no one knew how long it would take until the Courts returned to normal operations (or a new normal). Some may have wished to wait and prepare for a divorce while in captivity.[ix]But for others the time is now to take their first steps toward resolving their marital problems or, at least, take a turn onto a better route. Times being what they were, the Collaborative divorce process was more appealing than ever before and should have been a strong consideration for many as they maneuvered through the treacherous waters of a post-COVID world. [i] The Unabridged Devil’s Dictionary, Ambrose Bierce[ii] During the past week, judges have been reviewing their non-essential case inventories, looking for ways to move these pending matters forward. These “pending matters” can, in a Judge’s discretion, include some matrimonial cases.[iii]From 1776 , the musical with music and lyrics by Sherman Edwards and a book by Peter Stone. [iv] Be advised that Zoom has been having problems with security; and is not a recommended format. [v]There is full disclosure of all assets, debts, and income without formal proceedings. [vi]The parties can and do often jointly retain other professionals to aid in the process, such as property appraisers or financial consultants. [vii] Some states may require a Court appearance to finalize the divorce. [viii]An attorney specially trained in collaborative practice. [ix] But that is a discussion for another day.
August 14, 2023
Family Law
Postnuptial Agreements Post COVID-19
Originally posted on 05/15/2020, content updated on 07/24/2023 Hope is not a financial plan.[i] The COVID-19 pandemic and the lifestyle slowdown that came with it provided many married couples the opportunity to reassess their marriages. For some, the crisis made their bond stronger. For others, prolonged separation and/or prolonged closeness revealed considerable cracks in their relationship. If you and your spouse fell into this category, with the realization that your marriage may be ending, divorce, in and of itself, is not the only option. The better choice, rather than the immediate finality of divorce, is the creation of a document known as a Postnuptial Agreement. In its simplest terms, a Postnuptial Agreement is a contract signed by the couple at any time after their marriage which resolves all or at least a portion of the financial issues between them. A Postnuptial Agreement survives whether the marriage lives or dies. It can be a simple framework or a detailed road map, limited or expansive in scope, enforceable[ii] regardless of the state of the marriage when entered into. It can and often does provide a cooling off period for the couple; an opportunity to work on their marriage. If the marriage fails, a Postnuptial Agreement will ease and expedite the divorce process; and save the couple legal fees, inasmuch as they previously resolved the financial aspects of the marriage. Why have a Postnuptial Agreement? Oft times a couple does not like the idea of a prenuptial agreement (an agreement prior to the marriage). For some, a prenuptial agreement creates the sense that the marriage is starting off on the wrong foot, or doomed for failure; for others, the romantic ideal that the parties share is shattered by the thought of negotiating marital financial matters before they have even said “I do.” Others just simply refuse because they have no interest in obtaining a prenuptial agreement. With a Postnuptial Agreement the couple can eliminate expensive and acrimonious divorce battles. The spouses, through counsel, contractually delineate their monetary future, and if the marriage succeeds until a death, a postnuptial can prevent inheritance disputes between a person’s surviving spouse and his/her heirs. What Can be Included in a Postnuptial Agreement? Creating a Postnuptial Agreement requires the couple to agree on terms relating to the issues faced in their marriage. Provisions commonly included address: marital debts, credit card debt, or mortgage loans; property and asset division; spousal support amounts (if any) and the length of those payments; family budgets/spending habits; and the manner in which assets will be handled should one spouse pass away (estate planning)[iii]. Other, more unique provisions address: the manner in which the couple would respond to a sudden, dramatic change in their financial situation; transfers of separate property into marital property, and vice versa; protecting retirement assets in the event of divorce, which could lead to a decrease in retirement funds; non-disclosure and privacy provisions, limits on the personal and marital information either spouse may share with third parties; and even, limits to what is shared or discussed on social media. Children and issues concerning the Children, such as custody, visitation, or child support will need to be resolved at the time of the divorce action, either through a settlement agreement or court involvement. Child-related issues cannot be resolved by way of a Postnuptial Agreement, and even if the Postnuptial Agreement contain clauses relating to such, they will not be enforceable. How Can I Assure That My Postnuptial Agreement Is Valid? The validity of a Postnuptial Agreement does not require or mandate an eventual divorce. However, if the decision has been made that a Postnuptial Agreement is the right choice, then proper steps must be taken to ensure its validity. Primary among these steps is the full and fair disclosure of the entirety of each of the spouses separate assets, debts, and income and all of the marital assets, debts and income. Complete disclosure is imperative for enforceability. If one spouse is dishonest and the agreement is designed around information that is either false, inaccurate or incomplete, the Postnuptial Agreement will be considered invalid. The agreement must be signed by both spouses and the execution of the agreement must be completely voluntary. If there are any indications that one spouse was coerced, threatened, or made to sign a Postnuptial Agreement against their will, the agreement will be null. Equally, the Postnuptial Agreement cannot be flagrantly unfair and biased to one spouse. A Postnuptial Agreement that is clearly unjust to a spouse, and could potentially leave them with little to no assets or wealth, will need to be further evaluated to determine if the spouse truly did enter into the agreement voluntarily and knowingly. If this remains in question, the Postnuptial may not be enforceable. Conclusion It is important to address and resolve the financial details of the marriage. It is better to plan when there is peace in a relationship than when there is anger. [i] Many financial commentators and writers take credit for this quote. [ii] Assuming all other requirements of a valid agreement are met. [iii] A Postnuptial Agreement will not take the place of a will, but they can work together, dovetail, to ensure the decedent’s wishes are carried out.
July 24, 2023
Family Law
Divorce Economics in the Time of COVID-19
Originally posted on 04/01/2020, content updated on 07/17/2023 “Nothing is more dangerous to [men or women] than a sudden change of fortune.” – Quintilian [i] Nostradamus could not have foreseen a darker economy and—we are told—the worst is yet to come. In the fist week of April 2020, an excess of 3.3 million people have filed for unemployment benefits—a precipitous rise compared to the 832,000 filings of the week before.[ii] A national survey showed one in five households in the United States had their income cut or stopped altogether. [iii] At that point, more than 1,000 deaths in the United States had been attributed to the coronavirus, also known as COVID-19, and the numbers grew in the hundreds each day. Another economic crash was upon us. The economy was going down; but divorce rates were exploding. As the economy faltered, divorce rates rose as self-imposed “sheltering-in-place” put additional stress on marriages already wavering on the edge of the divorce abyss. Couples who already could not bear another day together were confined in the same space 24/7. In New York City, that space can be inordinately small, yet extraordinarily expensive. In short, it is a “pressure cooker” about to explode. This author has already seen a rise in inquiries from couples who cannot bear to be together another moment. But what of those couples who have already jumped into the quagmire of divorce, and now after months—even years—find themselves in their next and last stage—the financial battle? What is to be done where barely one month ago there was a sizeable marital pot to carve up—and now all that exits are bare bones? The financial hardship and instability that were caused by the pandemic and continued as a result thereof bore witness to incomes, assets and property values that had fallen and undoubtedly continued to drop dangerously. Those previously enjoying high levels of income suffered drastic pay reductions, and the prospects of new employment for those unemployed or about to be unemployed vanished. Retirement expectations once buoyed by investment and retirement accounts in the seven figures have dropped in some cases by fifty percent or more.[iv] Support expectations that could not reach the heights of pre-pandemic earnings and spending patterns were not only depressing but difficult for many to comprehend. Splitting debt rather than assets became the reality in many divorces.Trying economic times demand innovative solutions for the unique problems confronting divorcing couples. Two houses demand more to maintain than one. Incurring considerable credit card debt or dipping into retirement funds early leads to inevitable havoc in both parties’ current and long-term financial situations. The matrimonial practitioner is no longer merely the butcher responsible for carving up the fiscal carcass of the marriage; but now he/she must also be a new age philosopher enabling the client’s adjustment from what is expected to what is achievable at least in the foreseeable future. Once the Courts re-opened, they undoubtedly and inevitably found themselves in a myriad of “cases of first impression” when it came to the determination of what was an equitable distribution of marital assets that less than one month prior were flying high, but had reached an all-time low. REAL PROPERTY Divorce almost always means valuing, selling and buying houses or apartments. Historically, divorcing couples wrangled over the post-divorce ownership of the marital residence, the weekend home, or the Pied-a-Terre. Now they battle over who gets stuck with the current expenses of the asset as well as the future debt.[v] The strong U.S. housing market plummeted from the pandemic, financing was questionable and selling and buying a house became much more difficult. [vi] Even if able to sell the family home, the value will likely be below expectations, or what was originally paid and put into the property. For spouses who have been unemployed for a significant period of time, getting financing for a new home will be more challenging than ever. In the past, the most common solution with respect to the marital home was for one spouse to buy the other out. Typically, there were more than the necessary amounts of other assets so as to offset the purchase of the residence by one spouse with an allotting credit to the other vis-a-vie the reallocation of distributive awards or like/kind transfers. Often, where there was lacking in marital offset funds, or liquidity, it was not unheard of for a wealthy relative (a mother or father of one of the parties) to step forward and provide a low interest loan, or provide additional credit by co-signing or offering funds not obtainable from a bank or other lending institution. Those days are gone. Now, the most common solution for the divorcing couple is to retain the house, permitting one or the other to remain in the residence until the market improves, fixing the financial responsibilities of one to the other in retaining the residence, agreeing to postpone final division of the asset until a time in the fixed future, tied often to a child’s attainment of a certain age or emancipation status, or making the sale subject to a triggering event, exercisable by either party (with notice), with a guaranteed base return for the departing resident. Often, and especially at the present time, refinancing the current mortgage, without incurring additional debt, so as to reduce the monthly financial “nut,” is strongly advised, i.e., is a “no-brainer.” In situations where the residence is preserved for a future sale, there is often a two-level structure of support in place — one amount before and another amount after the house is sold. Renting the house to a third party, though often more of a headache than it is worth, may be a viable option for some in the hopes that the near future will bode well for the real estate market. An income can be derived from such a step that will, at a minimum, help offset monthly housing payments. Turning over the costs of utilities to the renter will also relieve some of the financial pressure on the parties. Those who determine to take such a step would be wise to engage a property manager or an accountant to oversee the day to day dealings incumbent upon a landlord. Where minor children are still living at home, some couples may prefer what has become referred to as “nesting.” The parties retain ownership of the home, and either rent or purchase another nearby (smaller than the marital home). Each parent alternates living in the marital residence with the children and in the other residence alone. This not only preserves the residence for sale in an upturned market, but provides an added degree of stability for children thrown into the divorce maelstrom. Short sale, Foreclosure, or Bankruptcy Short sale, foreclosure or bankruptcy are more drastic solutions – and should be considered sparingly as such steps often negatively affect both parties’ financial futures. However, in the long run beggars cannot be choosers. A short sale is the sale of real estate in which the proceeds fall short of the debt owed on the property. It occurs when a borrower cannot or chooses not to pay the mortgage obligation, and the lender decides that a sale at a modest loss is the best option. Both debtor and creditor must agree to the short sale procedure inasmuch as it allows foreclosure to be avoided (foreclosure will involve hefty fees for the bank/lender and poor credit report results for the debtors.) The lender’s agreement to the short sale, however, does not automatically release the borrower from the obligation to pay the remaining balance of the debt, known as the “deficiency.” [vii] In the short sale scenario neither side is “doing the other a favor;” it is simply the most cost-effective resolution of the debt. The lender reduces its exposure to a greater financial loss than would result from foreclosure or continued default. The debtors are able to lessen damage to their credit histories, and to a limited degree control the debt. The short sale is often faster and less expensive than a foreclosure. The lenders acceptance of the short sale does not extinguish the remaining balance unless settlement is clearly indicated on the acceptance of the offer.[viii] The short sale typically remains on a credit report for seven years. A few last comments concerning short sales: (i) always negotiate the waiver of the deficiency; (ii) leave plenty of time, as the approval process can be long and arduous; (iii) if approved and the deficiency waived, the forgiven debt may have tax consequences.[ix] Foreclosure is the process by which the lender obtains a court ordered termination of the borrower’s right of redemption. The lender traditionally obtains a security interest in the property in issue from the borrower who pledges the asset to secure the debt. Upon default the lender is typically desirous of repossessing the property. Courts of equity however, can grant the borrower the right of redemption if the debt is then repaid. While this right exists, the lender cannot be sure that it can successfully repossess the property, thus the lender seeks to “foreclose” the equitable right of redemption.[x] Other lien holders can also foreclose the owner’s right of redemption for other debts, such as for overdue taxes, unpaid contractors’ bills or overdue homeowners’ association dues or assessments.”[xi] A foreclosure generally appears on a credit report for seven to ten years, usually as a settlement, settlement for less than owed or pre-foreclosed redemption.[xii] A foreclosure will have a greater negative impact on a party’s credit than a short sale. Bankruptcy For those with significant liabilities and little or no foreseeable means out of the debt incurred, bankruptcy may be the only option. The parties may choose to declare bankruptcy and file for Chapter 7 or Chapter 13, depending on their financial predicament.[xiii] Where the problem is late mortgage payments, and the parties are desirous of keeping the marital residence out of foreclosure, then a Chapter 13 bankruptcy is the best choice. In a Chapter 13 bankruptcy case, the Court will supervise and restructure the debt, and schedule a payment plan which will typically involve a three to five-year repayment period. [xiv] Once repayments of the debts have been made in accordance with the Court’s repayment plan, then any debt still remaining will be forgiven. A bankruptcy will typically remain on a parties’ credit report for ten years. [xv] A Chapter 7 bankruptcy filing, known as a straight bankruptcy, involves liquidation of all assets that are not exempt. It is the best selection where the parties do not have the income to commit to a repayment plan. In a Chapter 7 bankruptcy filing the Court assigns a Trustee to collect the debtor’s assets in order to satisfy some or all of the debt. Fortunately, most debtors have only what is considered “exempt property” which is defined to include, the family home, family car, household items and clothing. After the non-exempt assets have been sold to pay off as many of the debts as possible the debts remaining are forgiven. The discharge of debts through Chapter 7 may be done only once every six years. FAMILY BUSINESSES When a couple owns a business together, decisions must be carefully made to insure an equitable outcome. It goes without saying that every business and business segment is unique. One universally convenient truth, however, is that the implosion of the U.S. and world financial markets has affected and will continue to affect for the foreseeable future most U.S. businesses. This has caused a whole new series of problems for valuing business for the purpose of divorce quantification and division. Revenue Ruling 59-60, issued in 1959, has long been the golden rule for business valuations, and has stood the test of time when it comes to the fundamental principles of valuing a family business, for divorce or any other purpose. Traditionally, business valuations have used methods based on the then realistic presumption that the historical performance of the business was a legitimate gauge of its future course. Implicit in the mathematical models was the tacit understanding of incremental improvement over a period of time. Most often, the evaluators view the last five years of the endeavor to ascertain its current value. Even if the present year evidenced a lower profit than years before, it is factored in with the prior four. However, this result may be a valuation that is nowhere near the realities of what the recession has done to future revenue forecasts. In the daily changing fiscal environment it was necessary to find ways to fashion an equitable distribution of the business taking into account the uncertainty of the business environment. On the one hand care must be taken so as not to value the business too high thus forcing the person running the business to pay out to the other a large amount that is inconsistent with the current economic conditions, and possible future of the business. Alternatively, the business could be in seriously negative territory at the time of the divorce, yet rebound considerably in years to come. The future, as always, remains a mystery. Thus more complex solutions must be approached than those traditionally utilized when there is a simple buy out of one of the owners at the then determined fair market value of the business – these solutions include: earn-out options; corporate co-existence, and estate planning opportunities. Buy Out, With Earn Out Options Optimally planned, a buy out with earn out options, i.e., where part of the total payment for a business is deferred, may be the best route. In this way, the “seller spouse” receives partial payment of an agreed base value of the business at the time of divorce and a further payment or payments after an agreed period or periods based on future business performance. The buy out/earn out therefore represents a results-based value of the company and may be considered by both parties as the fairest means of valuation and subsequent distribution. The amount of the future payments is based on agreed performance criteria and typically calculated as a multiplier with reference to historical profits although it may be based on turnover or other financial criteria[xvi]. The earn-out period may run from months to years and may include payments at different stages during the period. Typically, the “buyer spouse” will receive a cash sum, or an initial issue of securities, plus the earn-out. Corporate Co-Existence Often the only thing the parties can agree on is that the family business should not be sold or divided at the time of the divorce. This often occurs where the spouses desire to retain their positions in the company, where neither party is willing or able to buy the other out, or where the parties’ children are actively engaged in the business. Of course, each of these reasons requires the parties to be emotionally and mentally capable of co-existing in the business. In order to continue the ongoing business relationship, it is imperative that certain rules be established between the parties, and enforced going forward. These “rules,” would include: (i) the entering into of management agreements to set out specific duties of each spouse in the business, and classify those specific issues that would require the vote or agreement of both spouses, such as any future sale of the business, salary increases, personnel decisions, borrowing, and the like[xvii]; (ii) preparation of employment agreements to address benefits, termination, resignation, and covenants not to compete; (iii) preparation of buy-sell agreements to particularly address the future transferability of stock, and purchase of rights upon the death of one of the spouses, among other items; and (iv) the manner in which to address any shareholder disagreements.[xviii] Estate Planning Prospects Where the parties own all or the majority of their business, they may have available to them a unique estate planning opportunity, especially where the parties’ children participate in the business. The parties, with the help of knowledgeable corporate, and estate planning counsel, create a succession plan for the benefit of their children, that may reduce or eliminate the uncertainty of the manner in which the company will be distributed upon one party’s death, and also take advantage of valuation discounts by putting each of the spouses in a minority position.[xix] This may all be undertaken by the parties while they still maintain joint control over the business. This will also ensure that the parties’ children will have an opportunity to acquire an interest in the business upon the death of either or both parents. RETIREMENT AND DEFERRED COMPENSATION The pandemic has also wreaked havoc on most retirement or deferred compensation benefits, in particular plans such as a 401(k), SEP, or IRA. The “cut off” date for the classification and quantification (without considering the active or passive nature of the increases or decreases in account values) of marital property is the date on which the action is commenced[xx]. The valuation dates for such assets can however, range from the commencement date through the trial date. Over the years, certain standards have developed in determining which valuation date should be applied to particular classes of assets such as retirement and deferred compensation accounts. Now, the existence of an increase in the value of such plans post-commencement will be a rarity. Despite this state of affairs, the Court will still look to such considerations as the active management of the account by one spouse; pre and post-commencement withdrawals and payback amounts and obligations; the selection of the assets in the account; and the risk of the assets decreasing during the action.[xxi] It is important that neither party force the liquidation of retirement assets while values are low. Loses on paper can be tolerated; actual loses realized by sale or withdrawal from retirement accounts, plus the accompanying tax liabilities and penalties, should not be. CONCLUSION Difficult times produce new opportunities; new opportunities give rise to industrious solutions. Now more than ever, divorcing spouses (with knowledgeable counsel), need to exercise patience in the process, clarity in thinking and sound fiscal judgment. [i] Marcus Fabius Quintilian, Roman educator, author of the Institutes of Oratory, published circa AD 95.[ii] “Unemployment Claims Soared to 3.3 million Last Week, Most in History,” Tappe, Anneken, CNN Business, 3/26/20. Cnn.com/2020/03/26/economy/unemployment-benefits-coronavirus. [iii] “Exclusive: Goldman Injects $1 Billion Into Own Money-Market Funds After Heavy Withdrawals,” McLaughlin, Tim. 3/21/20.r euters.com/article/us-health-coronavirus-goldman-mny-mkt-ex. [iv] “How to Protect Your 401(k) From the Coronavirus,” Hartmen, Rachel. 3.12.20. money.usnews.com/money/retirement/401ks/articles/how-to-protect-your-401-k-from-the-coronavirus. [v] Negotiating for and receiving in the divorce an asset at a significantly reduced value can be a benefit for some. When the market recovers the asset could be a boon to the receiver. [vi] The New York Times, “Is Now a Good or Terrible Time to Buy a Home?” nytimes.com/2020/03/21/realestate/coronavirus-pandemic. [vii] Tedeschi, Bob, “Short Sales, A Long Process,” The New York Times, Mortgages, 12/13/2009. [viii] Olick, Diana, “Big Banks Accused of Short Sale Fraud,” CNBC, 1/15/2010; “Mortgage Applications Drop 29% for Week Amid CoronaVirus Crisis.” 3/25/20. www.cnbc.com>real-estate. Olick, Diana. [ix] See IRS Publication 4681. The lender must send the borrower Form 1099-C, Cancellation of Debt, to indicate the amount of debt forgiven. [x] Merriam-Webster’s Dictionary of Law ©2020, Merriam-Webster, Incorporated [xi] Rhodes, Trevor. American Foreclosure: Everything U Need to Know… about Preventing & Buying. McGraw-Hill, April, 2008. [xii] Foreclosure Prevention Resource Center, MortgageBankers Association, 2008. [xiii] “How to Divide the Family Business in a Divorce,” Schnaubelt, Catherine. 3/15/19. forbes.com/sites/catherineschnaubelt/2019/03/15; Cornell, Mark and Ovitt Puc, Kelly, “Debts, Divorce and Bankruptcy, Representing Family Law Clients in a Down Economy,” New Hampshire Bar Journal, Fall 2009. [xiv] 11 U.S.C. Sections 1321 and 1322. [xv] Building a Better Credit Report, Federal Trade Commission Bureau of Consumer Protection, Office of Consumer and Business Education, May 2005. [xvi] “How to Divide the Family Business in a Divorce,” Schnaubelt, Catherine. 3/15/19. forbes.com/sites/catherineschnaubelt/2019/03/15; Sissel, Scott A., “Divorce and the Family Business – What Are the Options?, Business Entities, March/April 2007. [xvii] Id. [xviii] Id. [xix] Id. [xx] DRL Section 236(B) [xxi] Michaelessi v. Michaelessi, 59 A.D.3d 688, 874 N.Y.S.2d 207 (2d Dept. 2009); Pickard v. Pickard, 33 A.D.3d 202, 820 N.Y.S.2d 547 (1st Dept. 2006).
July 17, 2023
Family Law
New York’s Laws Fail to Recognize Gender Neutrality
"How are you supposed to be believed about the harm that you experience when people don't even believe that you exist?[1] The legal system has long been criticized for its lack of inclusivity and support for marginalized communities. One such community is the gender non-binary or genderqueer community. People who identify as they/them often encounter challenges in accessing justice, as the legal system is structured around a gender binary. New York's laws assume that individuals identify as either male or female, and they often fail to recognize, let alone support, those who do not conform to these traditional gender roles. In New York State, there is currently no legal recognition of non-binary gender markers like "they/them" on government issued identification documents. As a result, people who identify as they/them are often stripped of their rights and may face discrimination and exclusion in various aspects of their lives, including access to healthcare, education, employment, and housing. In addition, legal documents, such as identification cards, passports, and birth certificates, also present challenges for those who identify as they/ them, as these documents require gender marker designations. This results in many people being misgendered or having to conform to a gender identity that does not accurately represent who they are. Moreover, the legal system's lack of support for those who identify as they/them is particularly concerning when it comes to cases involving domestic violence and sexual assault. These individuals often face additional barriers to accessing justice and may be further marginalized by the legal system. Opposition From Conservative Groups There has been some opposition from conservative groups who argue that recognizing non-binary gender markers on identification documents goes against traditional gender norms and could lead to confusion or fraud. However, advocates for non-binary recognition argue that it is a necessary step towards greater inclusivity and recognition of all individuals, regardless of their gender identity. Ultimately, the decision to recognize non-binary gender markers on identification documents will be up to lawmakers and policymakers. There are solutions, however, to address the concerns raised by conservative groups regarding non-binary recognition on identification documents. One potential solution could be to provide educational resources and training for government officials and individuals on the importance of recognizing non-binary gender markers. Another solution could be to implement safeguards to prevent fraud, such as requiring additional documentation or verification. Some other types of safeguards that could be implemented include biometric identification technologies, such as facial recognition, fingerprinting, or iris scanning. These technologies can be used to verify an individual's identity and prevent fraud. However, it is important to balance the need for security with the need for inclusivity. This requires a careful consideration of the potential impact on non-binary individuals and ensuring that any safeguards do not place an undue burden on them. It also requires ongoing dialogue and collaboration between stakeholders to ensure that the needs of all individuals are being met. In Conclusion The inclusion of non-binary gender markers in government-issued documents would have a significant impact on the lives and experiences of non-binary individuals in New York State. It would provide them with greater recognition and visibility and help reduce discrimination and exclusion based on gender identity. This could also lead to improvements in healthcare, housing, employment, and other services that are often difficult for non-binary individuals to access. Ultimately, it will require a collaborative effort between lawmakers, advocates, and community members to find a solution that addresses concerns while also promoting inclusivity and recognition of non binary individuals. There are ongoing efforts to push for legislative changes and updates to the current system to be more inclusive of non-binary individuals. Organizations like the National Center for Transgender Equality and the New York Civil Liberties Union are actively advocating for these changes. It is important for non-binary New Yorkers to consult with a lawyer who has experience navigating the legal issues related to gender identity. This can include issues related to changing legal documents, accessing healthcare services and other services, and experiencing discrimination or harassment. _________________________________________________ [1] -- Alok Vaid-Menon, Beyond the Gender Binary
May 10, 2023
Family Law
The State of Artificial Reproductive Technology Today
The best way to predict the future is to create it. – Abraham Lincoln. April 23-29, 2023, is National Infertility Awareness Week® (NIAW). NIAW is a movement founded in 1989 by The National Infertility Association. Its mission is to empower us all, change the conversation around infertility, raise awareness about fertility issues and promote better access to fertility care for people who need it. For most individuals and/or couples trying to have a baby, when the conversation of conceiving through natural means ends, a new dialogue begins that which focuses on having a baby with the help of artificial reproductive technology. Introduction The field of artificial reproductive technology, "ART," has made significant advancements since its inception in the mid-20th century. With the ability to manipulate and control the human reproductive system, ART has revolutionized the way we approach infertility and has also presented new ethical and legal challenges. This article will provide an overview of ART, its past, present, and future, and the myriad of legal and ethical issues it faces. Clinical Definitions, Historical Discrimination, Familial Reality and Legal Concerns Clinically/historically/ discriminatorily, infertility is a reproductive disorder defined as the failure to achieve a clinical pregnancy following at least 12 months of unprotected heterosexual intercourse1. It can be related to female factors, male factors, both, or remain unexplained. In women, it is commonly caused by ovulatory dysfunction, tubal obstructions, and/or endometriosis. In men, it is often a result of abnormalities in sperm production and function or sperm duct blockages. In helping people to have the children they desire, ART challenged and altered forever conventional clinical and societal definitions of "family." It threw open the doors for those wanting to be single parents (with no need for a partner) and has broken down the barriers for members of the LGBTQIA+ community to create their own families. The nuclear family is still often considered as an entity defined only by biological ties, even though living arrangements with children (families) have become increasingly diverse in recent decades, with unmarried families, adoptive and stepfamilies, and families with same-sex parents becoming increasingly common. ART adds to this growing complexity by providing treatments to single people and gay and lesbian couples, as well as to heterosexual couples to whom the conventional definition of infertility applies.2 These former groups have also been described as facing "social infertility." 3 The use of ART worldwide has led to the conception and birth of over nine (9) million babies since being implemented in the United Kingdom in 19784. ART, as it is commonly known, refers to any technique used to assist in the conception of a child without sexual intercourse. The most common methods of artificial reproduction include in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), and gamete intrafallopian transfer (GIFT). There are various legal considerations when it comes to artificial reproduction. There are various laws and regulations governing these practices, including requirements for informed consent, screening and testing of donors and surrogates, and restrictions on the use of certain types of genetic material. One of the key issues is related to parental rights and responsibilities. In many cases, the child conceived through artificial reproduction will have genetic material from one or both parents who are not legally recognized as the child's parents. This can create complex legal situations, particularly if the parents separate or divorce. Another legal issue that arises in the context of artificial reproduction is the question of who has control over the genetic material used in the process. This includes issues such as sperm and egg donation, surrogacy, and embryo adoption. There are various laws and regulations governing these practices, including requirements for informed consent, screening and testing of donors and surrogates, and restrictions on the use of certain types of genetic material. Additionally, there are ethical considerations to be taken into account. Some people may have moral objections to certain methods of artificial reproduction, such as using donor eggs or sperm or creating embryos for the purpose of research. Overall, the legal landscape around artificial reproduction can be complex and is constantly evolving. It is important for individuals considering these techniques to consult with legal and medical professionals to ensure they fully understand their rights and responsibilities. ________________________________________________ 1 https://www.cdc.gov/reproductivehealth/infertility/index.htm 2 Zegers-Hochschild F., Adamson G.D., Dyer S., Racowsky C., de Mouzon J., Sokol R., Rienzi L., Sunde A., Schmidt L., Cooke I.D., Simpson J.L., van der Poel S. The International Glossary on Infertility and Fertility Care, 2017. Hum. Reprod. (Oxford, England) 2017. 3 Daar J. Yale University Press; 2017. The New Eugenics: Selective Breeding in an Era of Reproductive Technologies. [Google Scholar] [Ref list] 4 https://www.ncbi.nlm.nih.gov/pmc/articles The Past The first successful in vitro fertilization (IVF) was achieved in 1978 by Dr. Robert Edwards and Dr. Patrick Steptoe in the United Kingdom. This groundbreaking event paved the way for numerous developments in ART, including intracytoplasmic sperm injection (ICSI), pre-implantation genetic diagnosis (PGD), and cryopreservation of eggs, sperm, and embryos. Legal regulation of ART began in the 1980s, with the United Kingdom being the first country to pass laws governing ART procedures. The U.S. followed suit with the passage of the Fertility Clinic Success Rate and Certification Act of 1992 and the creation of the American Society for Reproductive Medicine (ASRM) in 1944. This author's home state of New York did not "get with the program" until the Child-Parent Security Act of 2021. Present ART has become more widely available and accessible over the years, with clinics offering a variety of treatments and services to individuals struggling with infertility. In addition to IVF and ICSI, ART now includes egg and sperm donation, surrogacy, and gestational carrier arrangements. The legal landscape of ART is complex and varies from state to state and country to country. In the U.S., there is no federal regulation of ART, with each state having its own laws and regulations. This has led to a patchwork of laws that can be confusing for patients and providers alike. One of the most significant legal challenges facing ART today is the issue of parental rights. With surrogacy and gestational carrier arrangements, the question of who has legal rights to the child can be complicated. Additionally, the use of donor gametes raises questions about the rights of the donor and any resulting offspring. Future Advancements in ART technology are rapidly evolving, with researchers exploring new techniques to improve success rates and decrease risks. One area of focus is the use of artificial intelligence (AI) to analyze large datasets of patient information to identify factors that contribute to successful outcomes. Another promising development is the use of gene editing technology to address genetic diseases and disorders. While still in the early stages of research, this technology has the potential to revolutionize the field of ART by allowing parents to screen for and eliminate genetic diseases before implantation. Back to the Future: Legal Concerns With all the good news about ART, there are some serious issues, namely, the regulation of fertility clinics and other providers of fertility services. In many countries, including the United States, fertility clinics are subject to strict regulations that govern everything from the storage and use of genetic material to the types of services they can offer. These regulations are designed to protect patients and ensure that fertility treatments are safe and effective. Another legal consideration is the use of donor material in assisted reproduction. When donor eggs or sperm are used to fertilize an egg, there may be legal issues related to parental rights and responsibilities. Additionally, there may be questions around the ethical implications of using donor material, particularly when it comes to issues related to identity and family relationships. Another recent development that has significant legal and ethical implications is the use of donor eggs and sperm, which can allow people who are unable to conceive naturally to have children. However, this technology also raises questions about the rights of donors and the potential for unintended consequences, such as the possibility of unwitting incest between donor-conceived siblings. Another important aspect of infertility and the law is the legal rights and responsibilities of parents who conceive through these technologies. For example, in cases of surrogacy, legal agreements must be put in place to establish custody and visitation rights for the intended parents as well as the surrogate mother. Similarly, in cases of egg or sperm donation, legal agreements must be put in place to establish parental rights and responsibilities. Other legal concerns related to infertility may include issues around adoption, paternity and genetic testing, and the use of reproductive materials after death. It is important for anyone dealing with infertility to consult with an experienced attorney who can help navigate the legal landscape and protect their legal rights and interests through the process. It is also important to consider the role of insurance and other financial considerations in fertility care. In many cases, infertility treatments can be expensive, and insurance coverage may be limited or nonexistent. This can create significant barriers to access for individuals and families who need fertility care. Overall, there are many legal and ethical considerations to think about when it comes to assisted reproductive technologies. As we continue to explore the potential benefits and drawbacks of these technologies, it is important to strike a careful balance between innovation and regulation and to prioritize the needs and interests of patients above all else. Back to the Future: Ethical Concerns There have been several recent technological advancements in fertility treatments that have significant implications for the legal and ethical considerations surrounding assisted reproductive technologies. Some people argue that these technologies blur the line between natural conception and artificial intervention and that they represent a potential threat to human dignity and autonomy. Others argue that these technologies have the potential to improve the lives of millions of people around the world who struggle with infertility and other reproductive issues. One of the most important developments in this area is the use of in vitro fertilization (IVF) with pre-implantation genetic testing (PGT). This technology allows doctors to screen embryos for genetic abnormalities before they are implanted in the uterus, potentially reducing the risk of certain genetic disorders and increasing the chances of a successful pregnancy. However, PGT also raises serious ethical concerns, as it allows parents to select embryos based on their genetic characteristics, such as gender and physical characteristics, potentially leading to a future in which only certain traits are valued, and others are deemed undesirable or even unacceptable; which could lead to discrimination or perpetuate harmful societal norms. To balance these competing concerns, it is important for society to engage in open and transparent discussion about the use of PGT and to ensure that regulations are in place to prevent abuse of this technology. This could include limiting the types of conditions that can be screened for, as well as creating oversight committees to review and approve PGT applications. Additionally, it is important for individuals and families to have access to accurate and unbiased information about PGT, so they can make informed decisions about whether or not to use this technology in their own fertility treatment. By considering both the potential benefits and ethical concerns of PGT, we can work towards a more equitable and responsible approach to healthcare. Finally, there has been growing interest in the use of artificial intelligence (Al) and machine learning to improve the accuracy of fertility diagnosis and prediction. While these technologies have the potential to revolutionize fertility care, they also raise concerns about data privacy and the potential for biased algorithms to perpetuate existing inequalities in healthcare. Overall, the recent technological advancements in fertility treatments have significant legal and ethical implications, and it is crucial that we carefully consider these issues as we continue to develop and implement new and innovative technologies in this field. Conclusion Infertility and the law is a complex, multi-faceted issue that encompasses a range of legal and ethical considerations. Laws governing these practices vary state by state and country by county and may include regulations around consent, screening, and financial compensation. ART has come a long way since its inception in the late 1970s, and its future is promising. However, as technology advances, legal and ethical challenges will continue to arise. It is crucial for lawmakers and healthcare providers to work together to create clear and comprehensive regulations that protect the rights of patients and any resulting offspring.
April 13, 2023
