A baby is on the way for Kanye West and Kim Kardashian, and if rumors are true, wedding bells may soon follow. Should they have a prenuptial agreement? Just ask Katy Perry, Madonna, and Kelsey Grammer why a prenuptial agreement is so important. But prenuptial agreements are not just for the rich and famous.

Here are the TOP TEN REASONS TO HAVE A PRENUPTIAL AGREEMENT

1 It Can Strengthen the Relationship

In order for prenuptial agreements to work, you both have to be completely transparent with one other about your existing financial matters. This means fully disclosing your assets and your debts to one another. Get the difficult conversations out of the way as soon as possible. Trust us, the best time to talk about that maxed out credit card is not after the honeymoon.

2 Avoiding Discussions About Financial Matters is a Start on the Wrong Foot

Almost a third of divorces are the result of financial problems. We know you’ve heard this one before, so why not address this in advance? The more communicative you are in planning your future together, the more likely that future will be “till death do us part.” Part of your prenup discussion will include discussions about marital roles and obligations of each partner. There is nothing unromantic about smart planning.

3 You Acquired Property Before your Current Relationship

One of the things that we have found is that many couples interested in a prenuptial agreement typically have acquired property prior to starting a relationship with their current partner. This is particularly true with people getting married a second time. Oftentimes, a couple may want to keep some of their property separate, especially if they have children from a previous relationship. The idea here is that couples would like to see their separate property, or even a certain percentage of it,  used for the benefit of their children in the event of a sudden death or divorce.

4 Divorce is Very Expensive

Divorces are quite pricey and while we know that nothing can be further from your mind, the reality is that about 50% of marriages in the U.S. end up this way. Think of your prenuptial agreement as something of an “insurance policy” that will save you both a lot of pain and money by predetermining who gets what at a time when you are not angry at one other.

5 Assurance for Your Children

Second and third marriages are increasingly a common occurrence in the U.S.. In some cases, children may feel their new step-parent will not honor the same inheritance wishes of their biological parent. A prenuptial agreement sets clear guidelines regarding what a spouse is entitled to, while ensuring your children’s peace of mind that they will be taken care of.

6 Financial Independence

You’re single, you work hard, and you’re probably used to managing your finances. However, during the course of a marriage, you are likely to share certain financial responsibilities together. If maintaining a certain level of financial independence is important to you, a prenup can help set those parameters for you. One way to do that is to outline your obligations to each other and define where the lines are in terms of maintaining your own earnings.

7 Protection from Creditors

Maybe your partner attempts a business that ultimately fails, or maybe your partner brings a lot of debt to the relationship. Things happen, and we get that. A prenuptial agreement can often protect your finances from creditors. This allows one partner to step up and help maintain your relationship while the other bounces back.

8 Planning your Life in Advance

There is nothing wrong with that. By outlining specifics about your future together, a prenuptial agreement gives you a roadmap to keep you both on track. It also brings the tough decisions to the forefront of your relationship to make sure they don’t trip you both up later.

9 Keeping a Business on Track

Do you have a business partner or some other significant business interest? A prenuptial agreement can help keep that business intact in the event of an untimely death. That does not mean that your spouse cannot or should not benefit from your hard work, but your agreement will help clarify issues surrounding ownership of the business.

10 Spousal support

You could end up living a long time, but only be married for a number of years. Should that relationship end in divorce, you could be on the hook for a lifetime of support even if your relationship did not last as long. An agreement could alleviate this and mitigate these obligations.

For any other questions regarding prenuptial agreements, please feel free to call me at 212-734-1551. I’d be happy to advise you. I’m Lois Brenner and I will help you achieve the future you deserve.

PRENUPTIAL AGREEMENT

A prenuptial contract may not save a failing marriage I but it can prevent much of the financial pain of parting.

BY LOIS BRENNER 

• Originally printed in New Woman  Magazine, November 1988

SUSAN AND JEFF MET IN LOS ANGELES. AFTER MAJORING IN film at UCLA, Susan had spent her 20s writing unsold movie scripts and working part-time in public relations. Jeff, with a Stanford MBA, had been recruited by an investment-banking firm, where he worked 12 .to 15 hour days, traveled weekends on business, and earned a six-figure salary.

By the time they decided’to marry, Susan was a sought-after freelance, and Jeff was putting all his savings into the formation of his own venture-capital company. When they parted six years later, Susan was running a profitable public relations

business with more than a dozen employees, while Jeff’s firm was on the brink of bankruptcy. During the divorce, Susan’s emotional distress was compounded by the shock of having to share the value of her business with Jeff, who had been consoling himself over his own financial reverses with a sympathetic secretary.

If Susan decides to marry again; she will be a prime candidate for a prenuptial contract—a legal document that spells out in advance who gets what when a marriage goes wrong. (With a prenuptial contract, Susan and Jeff could have arranged to keep their businesses as separate property rather than merged into community property under California law.)

As an attorney who often draws up such contracts, I see many young women finding good reasons to overcome their romantic aversion to an arrangement that, after all, contemplates the end of a marriage before it even begins.

“I consider getting married a career change,” 28-year-old Mary Ellen told me. She was planning to put-her fashion-design career on hold for several years in order to marry Harvey and have children. Harvey, an executive in a family-owned manufacturing company, was being pressured by his father and brother to prevent his stock from falling into the hands of an “outside” in the event of death or divorce.

The proposed prenuptial contract Mary Ellen was given by Harvey’s lawyer made it clear that Harvey’s first loyalty was to his father and brother. The contract asked Mary Ellen, in the event of Harvey’s death, to renounce not only control of his stock but its value as well, which easily could have been reserved for her under a buyout clause or by insurance without giving her a voice in the family company. “It’s as if he’s hiring a wife and children,” I told her. “His estate still belongs to his father and brother.”

After long discussions, Mary Ellen decided to delay the wedding and let her biological clock go on ticking while the two of them worked on the question of just how committed Harvey would be to his future family.

In my New York City practice, I have drawn up prenuptial contracts in situations ranging from those of young couples with no assets other than the down payment on a cooperative apartment or small house to complex agreements involving the inheritance of large fortunes. What do they have in common? Often the negotiations provide a litmus test that brings out clearly the line between love and greed.

Sandra and Brian meet in college, fall in love, and decide to marry after graduation. Sandra’s father, a real estate developer, has put a vast tract in her name in order to minimize his taxes. When Brian is asked to give up any claim to the property, he refuses. Sandra decides to give up Brian.

Fred, a fortyish bachelor, is the potential heir to $10 million. He proposes to Elise, whose total assets are a sable coat and a Cartier watch. When asked to sign a prenuptial contract that would give her comfortable support but no part of Fred’s inheritance in the event of divorce, Elise dissolves into tears. Against the advice of his lawyer, Fred agrees to go ahead with the wedding without a contract.

Amy, two years out of college, while working as a management trainee at a bank and saving up to pay for tuition toward an MBA degree, falls in love with Roger, who is just starting medical school. Since both their parents are divorced, they are acutely aware that marriage may not be forever. To compensate Amy, who will delay heradvanced degree by working to support Roger until he finishes his training, they decide on a prenuptial contract. It will provide that in case of divorce Roger will either pay for Amy’s postgraduate work or give her a share of the future value of his medical license.

Postponement or even cancellation of wedding plans is one possible result of deliberations over a prenuptial contract. But if the reasons for deliberation reflect a serious problem, the outcome may be preferable to facing the issues years later in the heat and anger of divorce with the fate of children at stake.

Engaged couples may be reluctant to draw up prenuptial contracts because the process undeniably tests each partner’s commitment. But there are two important reasons for women to consider such contracts.

• The no-fault divorce laws have made marriage more of an economic arrangement than ever before. In some cases, laws don’t compel ex-husbands to take care of women and treat wives like members of a dissolving partnership. No one would dream of going into a business partnership without a written understanding of who gets what if the partnership breaks up.

• Today many women bring more assets and earning potential to a marriage. As Susan discovered in divorcing Jeff, the new divorce laws can take away part of women’s hard-earned success in the absence of any other legal arrangement.

If you decide that a prenuptial contract is economically desirable, there are a few psychological hurdles to face. How do you go about making an agreement without damaging your relationship with your future husband? Here are some guidelines.

Examine your motivations. Some couples share their reasons for wanting a prenuptial contract before consulting a lawyer. In other cases, the one with the most assets to protect may see a lawyer first and then discuss a proposed contract with the other. In either event, it is helpful to examine together the intentions behind the cold legal print in order for both to arrive comfortably at an agreement.

Think about your goals. Each of you should draw up a list of major assets and think about which assets you would like to keep as separate property. It’s helpful not to reach any hard-and-fast decisions at this stage.

Get all the facts. Each of you should consult your own experienced matrimonial attorney to find out what can and cannot be done in your state. Each statesets its own standards for what happens to property in case of death or divorce. A lawyer will advise you how best to achieve your goals under those laws and later will translate your agreement into a binding legal contract. (The cost will run from a few hundred to perhaps several thousand dollars, depending on the complexity of the assets.)

Negotiate differences. Even though each of you can understand the other’s concerns, there still may be qualms about particular provisions in the contract. (“Okay, you’re going to keep the house because it’s paid for out of your inheritance, but if we divorce after five or ten years, what do I do about a place to live?”) If one of you is considerably wealthier than the other, the agreement may spell out various methods of property division and support arrangements in the case of divorce, depending on the length of the marriage. If one spouse is going to support the other through a medical or law school, the contract may include a formula for dividing the future value of the professional license. If you find it difficult to work out details, use your lawyers as buffers to keep the bargaining from becoming too heated between you.

Avoid deadline pressure. Some couples see their lawyers two or three weeks before the wedding. You should start the process’ at least three months before that. You do not want to be settling important issues after the invitations are inthe mail.

Make sure the contract will hold up. A prenuptial agreement will be most binding when each member of the couple makes full and honest disclosure about assets, income, and liabilities; when each is represented by a lawyer and signs without duress and coercion; and when the provisions are reasonable enough so that a court will not later nullify the contract. If you have any doubts, question your lawyer closely.

Even with the best of intentions, the process of working out a prenuptial contract may bring out insurmountable problems. Some clients find that the personthey plan to marry is much· more controlling, greedy, or even paranoid about money and property than they had realized. In my practice, about one out of every ten clients who consults me about a prenuptial contract ends up canceling or postponing the wedding. Another one out of ten gets married without signing a contract because the future spouse objects.

But in other cases, the results can be a confirmation of the strengths of a relationship. One client, Karen, a successful lawyer in her 30s, was marrying for the

first time. Her fiance, Phil, a businessman in his 40s, had three young children from a previous marriage. Karen and Phil planned to have a baby together, but Phil wanted to set aside most of his savings to pay for the college education of his three children. Karen readily agreed. “I fell in love with Phil,” she explained, “because he’s a warm, loving, responsible man. I wouldn’t want to marry someone who could turn his back on his own family. When we have children of our own, I’m confident that we’ll be able to provide for them out of what we earn and save together.”

From

Getting Your Share: A Woman’s Guide to

Successful Divorce Strategies*

How active should you be in the negotiations? That will depend largely on the state of your emotions.   The basic fact is that you are the principal – your lawyer is there to advise you and represent you, but what is being decided is your financial future.  In my experience, clients can range from almost totally passive (“I don’t understand all this – you do what you think is best”) to excessively controlling (“I want to know about every letter and phone call beforehand”).

In many matrimonial cases there are a limited number of assets – equity in a house, savings, a pension.  After the current value of the house and pension have been set by expert appraisers, the dollar amount of the property to be divided is often fairly clear.  The issues come down to the method of division:  Does the wife keep the house and enough of the savings to offset the value of the pension and the remainder of the savings?  Does the wife get in a lump sum now her share of the pension and savings as well as half-ownership of the house, which is to be sold and divided when the last child goes off to college?  Who gets the liquid assets – the savings – which will generate income to live on? . . . .

Before your lawyer makes a proposal, you should discuss your priorities thoroughly and decide what you will insist on having and what you would be willing to compromise or even give up.  Of course, you will have more leverage in negotiating if you have not revealed or even hinted at these priorities to your husband and if you can infer from his past behavior what his priorities.

Your proposal can then be structured to give you the maximum possible amount you can get in the form that best suits your needs.  Ideally, this first proposal will stretch the upper limit of what you might get after a trial – without going too far above it.  If your husband’s lawyer is skillful, his first offer will be at the lower end of the same scale.  Between them, the two proposals will have defined the area for bargaining.

The threat of a trial is the matrimonial lawyer’s ultimate weapon and, like any heavy artillery, it should be used carefully or it may backfire.  In the course of negotiating, each lawyer will be rehearsing or hinting at the arguments that might sway a judge, and trying to undermine the other lawyer’s confidence in the persuasiveness of the opposing arguments.  These skirmishes can lead to an agreement if both sides are willing to make concessions in order to avoid the expense and uncertainty of a trial.  But if one side or the other refuses to budge, a trial may be the only alternative..

Some cases are solved at a pretrial conference, but you and your lawyer may need time to consider the judge’s guidance as may your husband and his lawyer.  With disagreements narrowed, and a sense of what the judge may do, both sides often sit down soon afterward and negotiate the remaining issues.

But it is important to remember that at a pretrial conference, the judge is only acting as a mediator and adviser, trying to move your case toward a settlement (and incidentally to unclog the crowded court calendar).  No judge can issue a binding order until the parties agree or until all the evidence and arguments have been heard in a trial.

Click HERE to read: Part 1 of Negotiating to Get What you Deserve

Click HERE to read: Part 2 of Negotiating to Get What you Deserve

If you have any other questions about negotiating your divorce settlement, please feel free to call me at 212-734-1551. I’d be happy to advise you. I’m Lois Brenner and I will help you achieve the future you deserve.

* Brenner, Lois and Robert Stein. “Negotiating to Get What You Deserve” Getting Your Share: A Woman’s Guide to Successful Divorce Strategies. San Jose:  Authors Choice Press, 1989. 80-98. Print.

From

Getting Your Share: A Woman’s Guide to

Successful Divorce Strategies* 

But most divorces are far from amicable.  The couples involved are too hurt, angry, or insecure to work out an agreement on their own.  They will need their lawyers not only to protect their rights but to serve as their advisers and negotiators in what may turn out to be a long and difficult process of coming to a settlement.

To a considerable degree the tone of the negotiations will reflect your relationship during the marriage: If your husband has been overbearing and controlling, he will not suddenly become sweetly reasonable now.  If he has been emotionally withdrawn, you cannot expect a show of sympathy and concern for your future.  If he has been selfish and narcissistic, he will fail to see why he should sacrifice any of his pleasures for you and the children.

Your personality and your response to his behavior are not likely to change, either: You may continue to be intimidated by bullying or driven to distraction by passivity or to feel furious in the face of total self-centeredness.  And, as we saw in the preceding chapter, your emotions and his will be exacerbated by the manner in which the marriage is ending.

From the start, your lawyer will have to take into account the psychology of your marriage in order to devise the best strategy for your divorce.  Long before the negotiations take place, the results can be heavily influenced by what you and your husband have done and said as your marriage began to fall apart.  All of this will help determine the main weapons that your lawyer and lawyers will use during the negotiations: the various forms of leverage. . . .

To make the best use of all kinds of leverage, it is vital that your lawyer know as much as possible about your husband’s behavior, personality, and finances.  The opposite edge of the weapon makes it important that you conceal as much as possible from the other side you deepest motives, desires, and insecurities in order to keep them from being used against you.

It is a sad fact that the most decent people are often the least skillful at using leverage.  They do not have the natural cunning to think in terms of turning other’s weaknesses against them or to hide their own feelings and motives.  Such clients often damage themselves before they see a lawyer by what they reveal to their husbands or what they do as a result of their unhappiness and distress.

That is why, from the start, your lawyer may discourage your direct communication with your husband about the issues of the divorce.  What you tell your husband about your desires or how you respond to his threats may provide him with the necessary clues to exerting leverage later on.   What you do in the heat of emotion can seriously compromise your financial security in the future.

Negotiations usually start after both sides have all the financial information they need.  But there are times when leverage can be used successfully during the discovery phase.

Who will make the first move? Either lawyer may submit a suggested settlement to the other, or the two may exchange their ideas for an agreement.  In some cases, particularly if your husband wants the divorce sooner rather than later, your lawyer may advise you to let your husband make the first offer and then see by how much he will improve it in order to get an agreement without delay.  In other cases, especially when a husband is being obstinate and evasive, the best strategy may be to go first and propose a top-of-the-line settlement that could shock him into confronting the reality of the situation.  In still other cases, where both wife and husband are being relatively reasonable, it makes sense to exchange proposals in order to identify areas of disagreement and start bargaining to narrow them down.

Click HERE to read: Part 3 of Negotiating to Get What you Deserve 

If you have any other questions about negotiating your divorce settlement, please feel free to call me at 212-734-1551. I’d be happy to advise you. I’m Lois Brenner and I will help you achieve the future you deserve.

* Brenner, Lois and Robert Stein. “Negotiating to Get What You Deserve” Getting Your Share: A Woman’s Guide to Successful Divorce Strategies. San Jose:  Authors Choice Press, 1989. 80-98. Print.

From

Getting Your Share: A Woman’s Guide to

Successful Divorce Strategies*

All the statistics point in the same direction: For many men, divorce is an expensive inconvenience.  Despite their complaints, they have enough money left to live much as they always have and, if they choose, marry again and support a new family.

For many women, however, divorce can be an economic disaster:  It lowers their standard of living sharply, sometimes to near-poverty level.

These are the stakes as you and your lawyer begin to negotiate the financial terms of your settlement.

No two negotiations are the same.  Each is an attempt to reconcile the present and future needs of two people with particular assets and earning abilities.

Each is a struggle to satisfy the legal definition of fairness in the face of powerful emotions – the desire to punish or deprive the need to place blame or relieve guilt.

Each is a contest whose outcome can be influenced by the preparation, ingenuity, determination, sense of timing, and endurance of the participants.

More than three out of every four cases are settled out of court, but in order to get the best possible terms you must convince the other side that you would be willing to go to trial and let a judge decide the issues.

Although negotiations may take an infinite variety of twists and turns, they all start in one of several ways: In a relatively amicable divorce, the two of you may have talked beforehand and worked out the outlines of a possible agreement.  After you have presented the terms to your lawyers, they will surely raise a number of questions about contingencies that neither of you has considered.  From there, the lawyers will work on remaining differences – in meetings with or without the two of you, sometimes by telephone – until all issues are settled.

Even without rancor, unexpected questions may come up: You agreed to take the house while he keeps your savings, which are of equal value.  Fair enough.  But transferring the house from joint ownership to you may carry a substantial future tax liability for the increase in value since you about it.  Did you take this into account when you agreed to the division?

Click HERE to read: Part 2 of Negotiating to Get What you Deserve 

If you have any other questions about negotiating your divorce settlement, please feel free to call me at 212-734-1551. I’d be happy to advise you. I’m Lois Brenner and I will help you achieve the future you deserve.

*Brenner, Lois and Robert Stein. “Negotiating to Get What You Deserve” Getting Your Share: A Woman’s Guide to Successful Divorce Strategies. San Jose:  Authors Choice Press, 1989. 80-98. Print.

(*Originally published in NEW WOMAN magazine in February 1991)

by Lois Brenner

Divorce doesn’t mean you and your children have to live in poverty. A leading divorce lawyer answers some common questions on how to safeguard your financial future.

–

SOCIAL SCIENTISTS HAVE A NAME for divorced mothers: the new poor. One study shows former wives and their children in California suffering a 73 percent loss in their standard of living while ex-husbands gain 42 percent. Ironically, a significant number of women today are in financial need as a result of new divorce laws that declared them to be the legal equals of men rather than helpless dependents. But in most families men still control the money, and women in our society do not have equal career opportunities and earning power. In addition, judges in divorce cases, often older men, are not always sensitive to the true needs of mothers and young children. As a result, equality on paper has turned into deprivation in real life.

As a divorce lawyer I constantly see women wrenched from comfortable homes and thrown into near-poverty, struggling to give their children a semblance of the life they had before the family breakup. If you are facing divorce, it is best to seek a skillful, tough-minded matrimonial lawyer to represent you, because not all lawyers are experienced at anticipating a single mother’s financial needs, and state laws vary. There is also much that you need to know and do to protect yourself and your children. If you are already divorced, there are steps you can take to increase your support or collect it when your ex-husband stops paying. Here are answers to the most crucial questions.

My soon-to-be ex-husband tells me I’m entitled to only 17 percent of his income as support for our child. But this is not nearly enough. What can I do?

State guidelines for child support vary. New York, which is fairly typical, allots the following percentages of a couple’s combined income up to $80,000 a year: 17 percent for one child, 25 percent for two, 29 percent for three, 31 percent for four, and 35 percent for five or more. Judges still have much leeway, and their custody awards are uncertain, To obtain maximum support, you and your lawyer will have to start by getting a fix on how much of your family’s income has gone for the child’s upkeep in the past and then look ahead to the additional expenses of two households—a second car, the need for baby-sitters, etc. (One estimate is that it takes between 75 and 80 percent of the former family’s income for a mother and two children to live alone at the same standard.)

If your divorce goes to trial, you will have to present evidence about your family’s standard of living: vacations, private schools, summer camps, music lessons, and any other advantages the child has had. Beyond that, if you have stayed home and now are going out to work, you should anticipate what it will cost for child care.

I stopped working when my daughter was born five years ago. It will take time to get back into the job market. Can I get alimony for myself as well as child support?

Under the new laws, long-term alimony is rare. Now called rehabilitative maintenance, it is usually given for only two or three years to women in your situation. The courts assume this is sufficient time for a former wife to update her job skills or get training to enable her to support herself. How a woman is supposed to do this while raising a young child and trying to find affordable day care isa problem that judges (and ex-husbands) ignore. Your lawyer will have to make a strong case for how much you will need for how long and impress a judge with your sacrifice of earning potential during the marriage.

My ex-husband is willing to provide $10,000 a year for my two children and me. Does it matter whether we call it maintenance or child support?

It does—for several reasons. In almost all cases, you will pay taxes on maintenance but not on child support. Maintenance may stop after a few years, but children get support until they are 18 or 21 depending on state law. If you remarry, maintenance usually ends but child support goes on. And if your former husband suffers a loss of income beyond his control, he has more of a chance of persuading a judge to reduce your support than the children’s.

My kids are 2 and 4. What happens to the child support payments as they get older?

Nothing. Unless your agreement or the judge’s order calls for periodic increases, you will be getting the same amount for almost two decades, while inflation eats away at its buying power. And as your children grow, it will cost more to meet their needs; one estimate is that living expenses are 23 percent higher for teenagers than for younger children.

You should try to negotiate or get the court to order an annual increase of 5 or 10 percent, or a larger increment every two or three years, and at the same time specify all the major future expenditures yourformer husband will cover— private schools, summer camps, orthodontia, college and postgraduate tuitions (without such a provision, child support ends at 18 or 21).

During the divorce I was in a highly emotional state and only wanted to get out of a bad marriage as fast as I could. Now my kids and I don’t have enough to live on. What can I do?

You can ask the court for an upward modification, particularly if there has been a change of circumstance—e.g., your ex-husband’s income has gone up sharply while an illness or accident has caused unforeseen expenses you did not previously have.

Modification proceedings are like divorce trials. They can be time-consuming and expensive, but there are shortcuts. First, the threat of an action may pressure your ex-husband into negotiating a voluntary increase. Second, you may save lawyers’ fees by applying directly to the family court or domestic relations court in your community. It would be prudent to pay for a consultation with an experienced matrimonial attorney to go over the facts of your case and get advice on what to expect and how to proceed. If you can’t afford this, call your local Legal Aid Society for help.

My ex-husband stopped paying child support and threatens to disappear if I try to collect. Can he get away with this?

There are new ways to help you stop him. Each state now has an Office of Child Support Enforcement (O.C.S.E.) with the power to deduct overdue payments from a father’s salary or intercept any tax refunds he has coming. Or you can apply for help to your family court. In either case, you may be able to bypass the expense of legal fees. If large amounts are involved and/or your ex-husband has his own business, you may need to hire an experienced matrimonial lawyer who specializes in enforcement. Ask the local Bar Association for referrals. If your former husband does disappear, you may have to hire a detective to track him down. If you can’t afford one, try to get help from the O.C.S.E. or the local office of the Uniform Reciprocal Enforcement of Support Act, which was set up to collect child support across state lines.

______________________________________________________________________

Lois Brenner, a New York City lawyer, is the coauthor of a divorce guide for women, Getting Your Share.

This is, of course, not a real letter and certainly not from the real Kevin Federline, but I get questions like this all the time from husbands and wives wondering how they’ll be able to support themselves after going through a divorce.

So what exactly is “spousal support” and how does it work?

Spousal support is known as spousal maintenance and has been referred to in the past as “alimony.” During the course of a divorce proceeding, it is awarded to the spouse (male or female, and in New York State this includes same-sex couples) who is financially dependent on the other spouse during the course of the marriage. Spousal support can be awarded on a short-term or lifetime basis (often half the length of the marriage) but is generally given for rehabilitative purposes (so the lower income spouse can go get their MBA or their Ph.D to give them a better opportunity to earn a higher salary). Spousal support is tax deductible for the payor and is taxable income for the recipient.

• Not to be confused with temporary alimony or temporary spousal support, which is awarded only until a divorce is finalized. Temporary spousal support in New York is subject to a specific formula while traditional spousal support is not. Temporary spousal support is set at 30 percent of higher-income spouse, less 20 percent of the lower earning spouse’s income.

Awarding spousal support is not as clear-cut as something like child support. The amount of money awarded is often subjective with the judge. And many different factors come into play when awarding spousal support.

• Length of the marriage
• Earning capacity of each party in the divorce
• Earning impairment for one or both parties in the divorce
• Property and whether it was acquired by one or both parties before or during the marriage
• Income of both parties
• Prenuptial and postnuptial agreements
• The lifestyle maintained by both parties during the course of the marriage

Because there are so many combinations and permutations of the aforementioned factors that affect spousal support, fighting over it can become costly and drawn out—in some cases for years after the divorce. In the court of law, you are essentially at the mercy of a judge who could have gone through a messy divorce themselves and who may have a biased opinion when it comes to the subject of how much spousal support you deserve.

Negotiating the spousal support award with a professional divorce mediator is a much better idea than going to court because it allows for a solution that is in the best interests of both parties. For example, because there are tax implications with spousal support, both parties in the divorce can work with a mediator to review their expected income along with the distribution of their marital property to find a tax-friendly resolution that makes sense for everyone.

With spousal support and divorce, there always numerous question-marks and concerns. But with proper counsel and support there is always a solution.

If you have any other questions about spousal support or mediation, please feel free to call me at 212-734-1551. I’d be happy to provide guidance and work with you toward an outcome that meets your needs. I’m Lois Brenner and I will help you achieve the future you deserve.

Reprinted from

August 19, 1986

by Lois M. Brenner, Esq.

Marriage is still popular, but more and more women are now looking beyond romance to economics. And many are signing—even insisting upon—prenuptial agreements. No one knows exactly how many are drawn up each year, but one survey of lawyers indicated an increase of 25 percent since 1970. Although 80 percent are for second marriages, some first-timers have them too. Postnuptial agreements—similar contracts signed after the wedding—are also on the rise.

No matter when they’re drawn up, these agreements specify the financial terms of the marriage and the division of property at divorce or death. Once reserved for people like Jacqueline Onassis, they now serve an important function for the middle class. In my work as a matrimonial lawyer, I’ve drawn up a number for people who were neither rich nor famous. Here are four reasons for considering one:

1. Protecting individual property. These situations are typical: • A couple about to marry is planning for one spouse to put the other through college or graduate school. Their prenuptial agreement can provide compensation for the sacrifices of the working partner if the marriage doesn’t last. (New York’s highest court ruled that a medical license is “marital property,” subject to a divorce settlement.) • One person has assets large enough to attract marriage partners motivated by greed. Take Paul, who at age 24 appeared on paper to be quite wealthy. A recent law school graduate, he had extensive real-estate holdings. But they really belonged to his father, a developer, who had listed them in Paul’s name to reduce taxes. The father asked that Paul and his fiancee, Elaine, sign a pre-nuptial agreement defining the real estate as “separate property,” to which she’d have no claim in the event of divorce. Elaine refused to sign and the marriage was called off. • Prospective mates are involved in businesses they don’t want to put at risk. Before Anne and Steven met and decided to marry, she had built up a prosperous boutique while he ran a lucrative coin company. Their prenuptial agreement specified that neither had any claim to the other’s enterprise.
2. Giving up estate rights. Those entering a second marriage may already have children to whom they want to leave their assets. Yet In most states, one third or more of the property and possessions would have to go to the widowed spouse. A prenuptial agreement can waive these rights and clear the way for the children’s inheritance.
3. Replacing alimony. Karen, divorced after thirty years as a homemaker, received $10,000 a year in alimony. When she fell in love and decided to marry again, Karen knew she’d have to give up the alimony. If her second marriage—to Howard—were also dissolved, she was unlikely to receive the same level of support. The solution: a prenuptial contract stating that Howard would replace the $10,000-a-year alimony in the event of a divorce.
4. Avoiding divorce litigation. Nancy and Bob planned to marry in a state which had recently enacted an “equitable distribution” law regarding divorce settlements. About forty-two states have such a law that distinguishes between  “separate” property (owned by an individual before the marriage or inherited  during it) and “marital” property (a home, pension or savings accumulated during the marriage).

If Nancy and Bob should divorce and be unable to agree on a division of assets, a court would determine what is marital property and what percentage should go to each spouse. To avoid the financial and emotional drain of a court battle, the couple drew up a prenuptial agreement listing each item of separate property to stay with its owner if the marriage ends. They also agreed to divide marital property 50-50 if they have no children, and 60-40 in Nancy’s favor if they do have children.

Setting Up an Agreement

When a couple decides on a prenuptial agreement, they should discuss and then put down on paper exactly what they want to accomplish. Each should hire a lawyer with experience in matrimonial law. Once both are satisfied with the terms, the lawyers draw up the agreement. When properly signed, it becomes a binding contract. The cost varies from a few hundred to several thousand dollars, depending upon the complexity of the agreement and the rate charged by the lawyers.

Some prenuptial agreements are contested—usually for one of these reasons: 1. lack of full disclosure—one party hid information about assets or income; 2. fraud—it contained information known to be false; 3. coercion or duress—a prospective spouse was forced to sign; 4. lack of legal representation by one party.

When properly executed, most contracts between spouses are found valid in court. Like wills, they can be initiated or changed at any time before or during the marriage. Although not right for everyone, prenuptial agreements offer many couples an end to financial fears and a step toward marital bliss.

“Death and taxes may be inevitable, but they shouldn’t be related.”

~J.C. Watts, Jr.

The month of April can be one of the most worrisome and taxing times of year—literally. More so, a divorce can be one of the most emotionally painful ordeals a person can go through.

Anyone who has ever gone through a divorce will tell you that the first tax season after filing for a divorce can be a very confusing time.

Questions arise, such as:

• What is my filing status? — If your divorce hasn’t been finalized by December 31st, then the IRS considers you married for the year.
• Who gets the tax exemption for the children? — This is something that can be highly contested between two former spouses. As of 2012, one can claim a $3,800 exemption for each qualifying child.
• Are my alimony payments considered tax deductions? — Yes, but only beginning during the time you and your ex-spouse started living apart.
• Are my child support payments considered tax deductions? — No, and the person who receives the child support does not need to claim these payments as income on their tax statements.
• What are the tax implications on transfer of property such as a house, a bank-account, securities and stocks, my pension, or real-estate? — In general, a division of property in connection with a matrimonial action is not a taxable event. However, the basis of the transferred property carries over to the transferee. For example, if you bought a piece of property for $100,000 in 1970 that’s now worth $500,000, whoever receives the property in the divorce settlement will be taxed on the $400,000 of appreciation in value.
• Who pays the capital gains tax on the sale of the real estate? — That is something you and your ex-spouse will have to work out, hopefully in an amicable manner.

It’s important to work with a mediator or divorce attorney who knows the divorce laws in the state in which you reside. Furthermore, the person you work with needs to be someone who can refer you to a specialized or forensic accountant in the event you require a unique kind of help.

If you have any other questions about the general implications of going through a divorce, please feel free to call me at 212-734-1551. I’d be happy to advise you. I’m Lois Brenner and I will help you achieve the future you deserve.

“There can be no keener revelation of a society’s soul than the way in which it treats its children” 

 ~ Nelson Mandela

With the holidays and 2012 in the rearview mirror, many of us have set resolutions and goals for ourselves for 2013 in the interests of happiness and personal development. For some, the attainment of those objectives involves the dissolution of their marriage.

However, with an eye on a brighter future and the fair distribution of marital assets the future of the most precious and valuable marital asset is often treated the most poorly: the children.

As a trained divorce mediator and divorce attorney for over thirty years, I’ve found that minor children are the subject of serious contention and are often used as pawns in the marital conflict which always negatively affects the child’s well being and emotional maturation process.

Here are five guidelines for parents to consider in regard to the treatment of their minor children when going through a divorce proceeding.

• Consult a therapist or trained mediator to discuss the best, most age-appropriate way to break the news of divorce to your children. This therapist should be an objective, non-partisan third party concerned only for the emotional well-being of his or her clients’ children.

• Inform your children together as a united front so they know each parent has an equal part in the dissolution of the marriage (details are not necessary) and know that it’s okay for both parents to be loved and respected. This also assists in letting the children know that it’s about you and not about them.

• Be respectful when speaking about your former spouse to your children. This keeps your children out of the line of fire and on the sidelines with much of their childhood intact.

• Protect your children, keeping your parental role. The children don’t need to be spoken to like a coworker, friend, or your local bartender when it comes to talking about your divorce. They don’t need to know who’s getting to keep the toaster or the intricacies of the dissatisfying sex life you had with your former spouse.

• Ask yourself, “Am I acting out of hurt or am I acting in the best interests of my children?” Does the custody and control you seek reflect your need to show your former spouse who’s boss or is it truly in the best interests of your children? Long drawn out custody battles can be emotionally exhausting for you and the children and can cause the waste of hundreds of thousands of dollars that could be going toward your child’s college fund.

Children do not deserve to become pieces of ammunition during a divorce. By allowing them to be impartial observers; you’re giving them the chance at not only a childhood, but a well-adjusted adulthood.

If you have any other questions about the many variables of the treatment of minor children while going through a divorce, please feel free to call me at 212-734-1551, and I’d be happy to advise you on the outcome you are looking for. I’m Lois Brenner and I will help you achieve the future you deserve.