Attorney Elizabeth Vaz: “5 Things You Need to Know to Survive and Thrive During and After a Divorce”

I hope you enjoy my interview with Ilyssa Panitz, a Divorce Journalist, Content Producer at The NADP and Host of “The Divorce Hour with Ilyssa Panitz” on CRN Digital Talk Radio.

Reasons for a post-nup range from couple to couple but the pair should include any assets they want protected in a divorce scenario. Our hope is that a couple signs a pre or post nup and never needs to use it. However, in the unfortunate case that they do need their assets protected, they have this agreement that will save them so much time and money in their divorce proceedings.

Divorce can be complicated, confusing, frustrating, time consuming and overwhelming. The worst part about the process, you have to make permanent decisions that affect everyone is your household. Now, imagine being told you have “no say” and “no voice” in how your life is going to look because some stranger has been appointed to do it for you. You would erupt like a volcano and truth be told, who wouldn’t? The reason I started this column back in September is to empower you with valuable information so you can weigh all your options, understand the legal jargon and speak up for what you want. Elizabeth Vaz is a whiz when it comes to explaining what everything means so you can have a firm grasp on what is happening. Vaz is a New York based Lawyer who is the Co-Chair of the Alternative Dispute Committee, member of The National Association of Divorce Professionals, the New York State Council of Divorce Mediators and Founder/President of the Long Island Collaborative Divorce Professionals group.

Ilyssa Panitz: What are the benefits of having a pre-nuptial agreement?

Elizabeth Vaz: I cannot stress enough the benefits of a pre-nuptial agreement. Couples tend to think that bringing up the idea of a pre-nup means you are already expecting the relationship/marriage to fail. It is quite the opposite. If you disclose your finances and have these hard conversations at the beginning, it will only strengthen your relationship AND give you peace of mind that no matter what comes down the road, you are both protected. Our hope is that these agreements can be put in a drawer and never touched but with 50% of divorces ending in marriage, this gives marrying couples security that they are both protected from the beginning. Many of my older clients tell me they wished they had known their rights and obligations regarding marriage and that they wish they had signed a pre-nup. The truth is that most people don’t realize that any accounts you have in your name, alone or with someone else, can be considered marital property and your spouse may be entitled to 50% of that account. That means you can have a savings account that is only yours, with only your income going into it, and then you decide to get divorced and come to find out that this account may have to be split 50/50 in a divorce proceeding. A pre-nup is an insurance policy that you don’t need to pay into every month- why would that ever be a bad thing?

Ilyssa Panitz: You hit the nail on the head. Asking your soon-to-be spouse to some is sign that asking for a pre-nup may take away from the romance of celebrating an engagement. What advice do you have to open the door to have this conversation with your partner?

Elizabeth Vaz: I disagree that this discussion will take away any of the romance. If anything, I think that it helps the couple to open up to each other in ways that may deepen their trust and understanding of the other. It is all in how the topic is first mentioned. My suggestion is to start talking about a pre-nup “BEFORE” you even get engaged or immediately afterwards. Once you get into the planning of the wedding itself, it is often hard to stop that momentum to discuss this topic. Being open and honest about this from the beginning will ensure you are both on the same page and no one is surprised by the topic.

Ilyssa Panitz: Let’s say you don’t have a pre-nup and then you get married. Should you consider drafting a post-nuptial agreement and if so, why is it important?

Elizabeth Vaz: If you missed the boat on a pre-nup, an antenuptial agreement (post-nup) is the next best thing. The reasons why having a pre-nup or post-nup are important, are much the same; it protects both spouses moving forward. Your agreements can say almost anything you both want it to, within the parameters of the law of course. Another insurance policy without premiums, it’s a pretty great deal.

Ilyssa Panitz: You mention the idea of getting a post-nup. What should a couple put in a post-nup?

Elizabeth Vaz: There really is no straightforward answer to this question. A couple should include anything that they want protected. I have clients come in for a post-nup if they have had any major changes after their marriage. For example, if one of the spouses starts or joins a business venture and wants it protected, or if there has been an unexpected inheritance that they want protected. Another big motive may be when there is a second marriage, with or without children, and the parties want to ensure that certain protections are put in place for their children or other family members. Reasons for a post-nup range from couple to couple but the pair should include any assets they want protected in a divorce scenario. Our hope is that a couple signs a pre or post nup and never needs to use it. However, in the unfortunate case that they do need their assets protected, they have this agreement that will save them so much time and money in their divorce proceedings.

Ilyssa Panitz: Does a post-nup ever need to be updated?

Elizabeth Vaz: As our personal situations change, so should our written agreements. I would suggest that you review any changes each year. Yes, a post-nup might need to be updated but that would be for both parties to agree on and do together.

Ilyssa Panitz: Assume a couple decides to get divorced. How does having these documents help streamline their situation?

Elizabeth Vaz: Depending on the specificity of the pre/post-nup, having these documents can cut the time of divorce in half- perhaps even more. If an agreement is extremely specific, there is little left to be discussed when the time comes to file for divorce. At that point, it would be the attorney’s job to put all of the agreed upon stipulations into the divorce documents and get everything filed with the courts. However, I will say that there are certain things that should not (cannot) be included in these types of agreements. Example: child custody and child support.

Ilyssa Panitz: Will having these contracts lead to a faster outcome or can someone contest the contents of what was written in the agreement?

Elizabeth Vaz: The reality is that anyone can sue anyone or contest anything in the court system. The court will then decide the validity of the legal argument and if the case can move forward. Having said this, it is extremely difficult to successfully contest a prenuptial or antenuptial agreement with any success. The courts are not inclined to rule that an agreement, made by two consenting adults, is now invalid because of claims of unfairness, coercion, etc. When I counsel clients, I always remind them of the legally binding nature of the document and that they will remain bound by all of the terms.

Ilyssa Panitz: Your firm also drafts separation agreements. For couples who are not yet divorced, does the non-monied spouse have to have one in order to collect pendente lite (temporary child support) from the soon-to-be “ex”?

Elizabeth Vaz: For any matter related to child support, the state legislature has made it clear that all children are entitled to be supported by their parents, regardless of who earns more than the other. The numbers will certainly vary from family to family, but the children are not to be left without support. As far as having a separation agreement in order to have support payments start, that is not necessary, nor is it necessarily suggested. For the most part, in order to be enforceable in New York, child support amounts and obligations would need to be spelled out in an actual “Order.” There are very nuanced exceptions but, the general rule is that only a court of competent jurisdiction may order and enforce child support obligations.

Ilyssa Panitz: A common reason people are terrified to get divorced is the expense of retaining lawyers. However, not every case needs to be litigated and wipe away your life savings. How does someone know if going through mediation is a viable option for their situation?

Elizabeth Vaz: I would go so far as to say that very few divorce cases should be litigated. Unless you are hell-bent on making your soon-to-be-ex’s life (and your own) miserable, there is no reason why any divorce needs to go to litigation. (** This is excluding cases that involve domestic violence, which may certainly need court intervention) Over 98% of divorce matters are settled out of court. Even if a case is set to go to litigation, it is commonplace that the matter is settled prior to that point, wasting hours on preparing for a battle that never even takes place. There are actually two great alternatives to litigation Mediation and Collaborative Divorce. Collaborative Divorce is perfect for couples with too much to settle for a mediator, or who need the additional support of a full team approach but is also for couples who recognize that divorces in litigation run on the courts schedule and the judge is the one who ultimately makes the decision. Families should be making the decision for their families, not a judge.

Ilyssa Panitz: Walk me through what Mediation and Collaborative Divorce entails.

Elizabeth Vaz: Mediation works when the couple is able to work out their issues without having one-on-one legal representation for every conversation. A mediator works as a neutral for both parties and does not give legal advice. They provide guidance and can discuss certain legal parameters like the Child Support Standards Act but a mediator should never give actual advice, legal or otherwise. Mediation entails meetings between the couple and the mediator to agree to parameters surrounding child custody/parenting schedules, spousal maintenance, and equitable distribution. The Collaborative Model is much more comprehensive and allows each party to retain their own legal counsel but never step foot inside a court room. The couple will have sessions similar to a mediation session, however instead of one neutral third-party Mediator, there is the couple and their respective Attorneys, a Financial Neutral who crunches numbers and handles the money in the divorce, and a Family Support Specialist who helps the couple handle the emotional matters that undoubtedly arise during divorce. This is much more of a team approach and the focus is on supporting the family throughout the process and setting them up for a successful road ahead.

Ilyssa Panitz: Does one mediator work with both sides or does each party have to retain their own person?

Elizabeth Vaz: In mediation, there is only one Mediator who helps guide both parties together. In Collaborative, each party retains their own Attorney who is able to provide specific legal advice and advocate for their client throughout the process. The beautiful thing about Collaborative is that it is a team approach. When you see a Collaborative Session, the idea is that you are unable to tell which Attorney represents which client. It is a very calm process- the opposite of what is expected during divorce. Divorce does not need to be a battle, and for the sake of the family unit, it should not be a battle.

Ilyssa Panitz: Do you recommend an individual also seek the advice of a lawyer since not every mediator is a member of the bar?

Elizabeth Vaz: In New York, a mediator does not have to be an attorney. In fact, they do not even have to hold any certification in mediation. Therefore, I always suggest to each party that they have an attorney who can review the agreement and go over their legal rights and obligations. The beauty of Collaborative is that it allows couples to get divorced 100% outside of the courtroom but each individual has their own Attorney to advise them throughout the process. It is the best of both worlds and none of the ugly world of courtroom divorce.

Ilyssa Panitz: What are some other big differences between a mediator and an attorney?

Elizabeth Vaz: A mediator does not advocate for either party. A mediator is neutral and therefore cannot truly advocate for you the way an attorney can. Also, since a mediator is not legal counsel, they cannot provide legal advice the way an attorney can. That is why I always recommend that a client has an attorney review their agreement before signing with a mediator in order to rest assured that their interests are fully protected.

Ilyssa Panitz: If someone wants to hire a mediator, what should they be asking and checking off the list in terms of qualifications in the following areas:

• Experience: Ask the mediator how long they have been doing this type of work. Although newly trained mediators are often terrific at their craft, as they are willing to look at the situation through a more novel lens. It might also be helpful to ask about the mediator’s experience with your specific type of situation. Example: with children who have special needs, with stepchildren, high-net worth couples, etc.

• Training: Ask about where the mediator was trained, is this organization certified, or well-known in the mediation community.

• Credentials: Any other certifications, licenses, degrees, etc.

• Communication: You should ensure that all communications with the mediator and your spouse, are carefully spelled out. Some mediators are fine with emails being received form one party and not including the other, some choose to “caucus” with one party to more carefully identify an issue which means that the other party will not be present. There are many mediators who will only communicate if all parties are present for every communication. It is important to know this communication style up front to see if it is the one that will work best for you.

Ilyssa Panitz: On average, what does a mediator charge?

Elizabeth Vaz: The average cost of a divorce mediation in New York State ranges from $4,000-$8,000, assuming one to four mediation sessions are needed. This price includes those sessions, the drafting of a Settlement Agreement, and the cost of preparing and filing the paperwork with the court. The price of a mediation truly depends on each couple. The more the couple can agree on without the mediator working through the issue with them, the less the mediation process will cost. I always tell my clients, the less they need to lean on me to mediate, the less the process will cost them.

Ilyssa Panitz: Does a client sign a retainer as they would with a lawyer?

Elizabeth Vaz: Yes, just as a client signs a retainer with a lawyer, they also sign one for mediation. Some mediators use an “Agreement to Mediate,” which acts as a retainer as well. It is really up to the individual professional but an agreement between the couple and the mediators should be executed. If the mediator is also an attorney, the mediator understands that legal services should start with a retainer being signed. Even though the mediation is not legal services per se, we always want to ensure there is a clear picture of what is expected from both the professional and what is expected from the client.

Ilyssa Panitz: Can a mediator practice in anywhere or do they need to be certified to work in each state they have clients in?

Elizabeth Vaz: A Mediator can practice anywhere as long as they meet that specific state’s requirements to mediate. Not every state requires their mediators be “certified,” rather they must meet the minimum qualifications set forth by the state they are looking to practice in. Each state varies so if a Mediator is looking to move, they need to do their due diligence and research what the state requires from them.

Ilyssa Panitz: What are 5 things someone needs to know to survive and thrive during and after a divorce?

Elizabeth Vaz: One: Remember that this is a temporary situation. It can be very painful and even traumatic, but this pain will not last. Always keep your focus on your future and it will be here soon enough.

Two: Ask questions along the way and write down the answers. Whether you are in mediation, the Collaborative process or litigation, you will be receiving so much information at one and it can often seem overwhelming. Keep all of your information in one place such as a folder or a notebook, and then go back to reference this from time to time. This will help you digest the information at your own pace.

Three: Choose the right team. Hiring trusted professional is essential and can be the most vital piece of your future. You will be sharing very intimate details with your attorney or mediator, so it is vital that you are comfortable with the professional you are working with.

Four: This is not a war. You and your spouse loved and cared for each other once and you may even continue to have a relationship with this person in the future. This is especially true if you have children. You always want to remember that the parent of your children will always be their parent. Keeping the peace with your children’s other parent will go a long way in maintaining a healthy relationship for the entire family- especially your children. And even if there are no children of the marriage, maintaining the peace can make a huge difference in the quality of the outcome here.

Five: Get an attorney to review the agreement and give you guidance as to the ramifications of the agreement. It is also important to choose an attorney who can help you understand all of the provisions in the agreement but who will not try to litigate or aggravate your matter. This is your future, and you should be fully informed as to the implications, while still having your voice heard.

Thank you so much for joining us. This was very inspirational, and we wish you continued success in your important work.