Joy's Blog | ROSENTHAL LAW & MEDIATION

In the News

Joy Rosenthal — Sun, 01 Apr 2012 21:06:38 +0000

Three articles have caught my eye this week, because I provide all 3 services. This is why I love my varied practice — all geared toward helping families through their many transiations!

The New York Law Journal published an article (in which I am featured!) by colleagues Ellie Wertheim and Abby Tolchinsky entitled Elder Mediation Addresses Range of Family Decisions, explaining that often, mediation can address important issues that the law cannot.

The New York Times article, If ‘Forever’ Doesn’t Work Out: The Same-Sex Prenup, addresses the practical usefulness of prenups for same-sex couples, especially in light of the complicated legal status of same sex marriages. (I wish they’d mentioned that mediation and collaborative process are particularly useful for the decision making process that leads to the creation of prenuptial agreements.)

And, finally, yesterday’s Op-Ed piece in the New York Times: Taking Responsibility for Death, which discusses the need for a health care proxy and living will. I find that this is one of the most difficult topics for clients to think about — even harder than writing a will — but also one of the most important.

You never know when the future will come.

Children’s Bill of Rights in Divorce

Joy Rosenthal — Sat, 28 Jan 2012 03:47:15 +0000

There are several versions of the Children’s Bill of Rights in divorce that you can find on the internet. They are all helpful in focusing parents’ attention on the experience that their children might have – something that can get lost when parents are wrapped up in difficult emotions. The one I like best is offered by Dr. Robert Emery, an expert on children’s experience of divorce. He has done extensive research on divorce mediation. Here it is:

Every child whose parents divorce has:

The right to love and be loved by both of your parents without feeling guilt or disapproval.
The right to be protected from your parents’ anger with each other.
The right to be kept out of the middle of your parents’ conflict, including the right not to pick sides, carry messages, or hear complaints about the other parent.
The right not to have to choose one of your parents over the other.
The right not to have to be responsible for the burden of either of your parents’ emotional problems.
The right to know well in advance about important changes that will affect your life; for example, when one of your parents is going to move or get remarried.
The right to reasonable financial support during your childhood and through your college years.
The right to have feelings, to express your feelings, and to have both parents listen to how you feel.
The right to have a life that is a close as possible to what it would have been if your parents stayed together.
The right to be a kid.

NYS Same Sex Marriage – It’s Complicated!

Joy Rosenthal — Thu, 12 Jan 2012 23:48:00 +0000

Today I led a workshop for the Family & Divorce Mediation Council (of Greater NY) with fellow Board members Teresa Calabrese, Katie Cole and Mark Josephson on what the new law permitting same-sex marriage means in NY. On one hand, it is a huge victory and an important step in creating civil rights for LGBT couples. On the other hand, it is a legal tangle.

As of this writing, only 6 states (plus DC) issue marriage licenses to same sex couples. About 13 others have some kind of recognition, either civil unions or domestic partnerships. But the federal government, and many states (either by legislation or constitutional amendments) explicitly forbid the recognition of same sex marriage.

As stated in the last post, DOMA (the Defense of Marriage Act), does 2 things:

1) it prevents legally married same-sex couples from taking advantage of ANY federal benefits (so they can’t file federal tax returns together, can’t get Social Security or VA benefits from their spouses, etc), and

2) it explicitly allows states to refuse to honor same-sex marriages performed in other states.

So let’s say you have a married lesbian couple. They have to file taxes as “married” in NY, but cannot file taxes as “married” on their federal returns. If one works for the federal govt, the other can’t get health benefits. If they get divorced and one is paying alimony, she can’t deduct it on her income tax returns. In fact, she may have to pay gift tax! If she pays child support to a non-biological child, that may be considered a gift, as well, and she may not be able to claim that child as a deduction on her tax returns.

All of this is to say that while the passage of the law IS monumental, it is, at least until DOMA gets repealed, a logistical nightmare.

All the more reason to use mediation or collaborative process, both for pre-nups and divorces — both processes can focus on creative ways to address the needs of the parties and their children.

Will the law catch up?

Joy Rosenthal — Mon, 04 Jul 2011 15:21:23 +0000

The papers have been rife with stories this week about New York’s new law allowing same-sex marriage. It couldn’t have come at a more poignant time – 2 days before Gay Pride day. People have described the mood there as unadulterated joy – one friend even told me, “I haven’t experienced anything like that since the March on Washington” — meaning the 1963 march in which Dr. Martin Luther King, Jr. gave his “I Have a Dream” speech. It is truly an historic moment.

The New York law, which will take effect on July 24, is a big step in the right direction, but it is still just a step. We still have far to go. Same-sex married couples are still ineligible for federal benefits because of the Defense of Marriage Act (DOMA). This clearly discriminatory as the New York Times adroitly explained in an editorial yesterday. The Respect For Marriage Act, which would overturn DOMA, has been introduced in Congress but has not yet passed.

After the expected surge of same-sex marriages, will there be much same-sex divorce? Probably. How will it be different for same-sex couples? For one thing, as John Schwartz pointed out yesterday, if they move out of New York, they might not be able to get divorced.

Clyde Haberman points out that, among other things, same-sex couples will still need 2nd parent adoptions, or else a married same-sex partner is still considered a legal stranger to the child.

A joint report from the Empire State Pride Agenda and the Human Rights Campaign lists 1,324 rights and responsibilities that go with marriage.

Many of the couples who are planning to marry soon have already been together for many years, perhaps raising children. So dividing up their assets and figuring out maintenance (alimony) if they divorce will be more complicated. At least the new NY maintenance law allows judges to consider that as a factor.

As always, the law must catch up with real life. In the meantime, mediation and collaborative process, useful for pre-nuptial agreements and divorce, continue to allow couples to be creative in shaping the law to fit their particular circumstance – gay or straight, kids or no kids, together for 25 years or 25 months.

There will be many things to untangle in the days ahead. Ordinary people will make history, simply by being themselves, by loving whom they love.

Marriage Equality in New York State!

Joy Rosenthal — Sat, 25 Jun 2011 14:40:41 +0000

Last night the NYS Senate approved our marriage equality bill, allowing same-sex couples to marry. This is historically significant in several respects:

New York is the largest state to legalize same-sex marriage.
New York is only the 6th state in the US to legalize same-sex marriage.
This more than doubles the number of same-sex couples who can marry in their home state.
Marriage has numerous benefits to families.
The vote was largely the result of advocacy groups working overlooking their differences for a common goal.
New York State lawmakers were able to overcome their differences, which have become paralyzing at times, to effectuate this.
The bill includes religious exemptions.
Credit also goes to Republican state senators like Steven Saland, who said, ” I have to find doing the right thing as treating all persons with equality, and that equality includes within the definition of marriage.”
It shows the strength of Andrew Cuomo’s leadership and guidance.
And perhaps most importantly, marriage equality is, as Julian Bond says, a civil rights issue.

And we can’t help noticing that the vote was passed on the eve of Gay Pride Weekend — let’s get the party started!

More changing families!

Joy Rosenthal — Mon, 20 Jun 2011 00:21:36 +0000

In my last post (this morning), I wrote about 3 articles in today’s Sunday New York Times about interesting family configurations or trends. Well, obviously I hadn’t read the whole paper!

A Father’s Day Plea to Sperm Donors is by a young man who would like, on this Father’s Day, to know who his father is;
My Ex-Gay Friend explores the life of a young man who was comfortable being out, and then went back in;
Living the Good Lie reflects on the therapists role in dealing with closeted patients,
And How Many Households Are Like Yours? is a kind of fun, interactive page where you can see how the American family is changing.
and then Maureen Dowd takes on the hypocrisy of the Church’s adamant views against gay marriage at a time when the NY State legislature is only 1 vote away from changing the course of history by legalizing it.

We are in the midst of a sea change of family dynamics and family relationships. I’m proud to be part of that change.

Today’s Families

Joy Rosenthal — Sun, 19 Jun 2011 17:56:41 +0000

There are several articles in today’s NYTimes that reflect a change in today’s families, on this Father’s Day, 2011:

A front page article about President Obama’s evolving views of gay marriage.
Baby Makes 4, And Complications – A long and very personal portrait of a Park Slope mother, child, sperm donor/father and his partner.
How Divorce Lost Its Groove, about the attitudes young people have toward divorce, and how they are trying to make it gentler on their kids — often because they themselves grew up with divorced parents. (I’d like to think that mediation and collaborative practice are part of that gentler form of divorce.)

Today’s families really are evolving, changing — based upon love, convenience, economics, creativity, changing values, mindfulness … I am grateful to have a law practice that helps families create legal structures to validate what they already know – that it is love that makes the family.

Jazz and Mediation

Joy Rosenthal — Wed, 25 May 2011 20:36:57 +0000

A few months ago I printed a wonderful quote from Dr. Martin Luther King, Jr. about the contributions that jazz makes to humanity. That touched me, particularly coming from a minister, because there are some who have said that jazz is antithetical to religion.

I have been listening to jazz since I was a teenager, and have been trying my hand at it (on the flute and on the piano) for a few years. Still amateur, for sure, but trying. The challenge of jazz is that you not only have to have technical skill at your instrument (getting a good sound, playing with dynamics, knowing the scales), but you have to have an understanding of music theory (being able to play a melody through all 12 keys, understanding the relationships between major and minor chords, as well as modes). On top of that, you have to understand rhythm – often complex. And most importantly, you have to get the feeling – the swing of it. Oh – and did I mention that you’re doing all this while you are improvising?

Mediating often reminds me of jazz. There are certain rules, certain things I know I must do — like reframing. And there are certain topics we must talk about – particularly in a divorce mediation – specific decisions to be made. But there are, at any one time, 100, maybe 200 things being said, verbally and non-verbally. How do I know which to pay attention to, which to draw out, which to respond to, which to ignore… How do I know which will move the mediation forward? And how do I respond and reframe with transparency, with honesty, with compassion, with understanding. . .

There are scales, there are chords in mediation. There is the technical skill, but then there is the rhythm — and the feeling. It is an art as much as it is a science. The more we practice, the more fluent we become.

Gay couples and immigration

Joy Rosenthal — Mon, 23 May 2011 20:35:41 +0000

We all know that an immigrant who marries a US Citizen can get Legal Permanent Resident status, commonly known as a green card.– But what if the spouses are the same sex?

Same sex marriage is legally recognized in a few states, yet not by the federal government. Congress passed the Defense of Marriage Act (DOMA) during the Clinton years specifically stating that they will only recognize marriage between a man and a woman.

This puts same-sex married couples in a weird double status. They have rights according to State law, but not according to Federal law. That means that they still cannot file federal taxes together, claim veteran’s or social security benefits or others of hundreds of benefits recognized by the federal government. There are over 1,100 federal benefits available to heterosexual married couples that are not available to same sex spouses. (see Marriage Equality)

And yet this seems to be illegal. The Equal Protection Clause of the 14th Amendment to the US Constitution states that “no State shall … deny to any person within its jurisdiction the equal protection of the laws,” which has been interpreted by the Supreme Court to state that the government cannot discriminate on the basis of an inherited characteristic, such as race or sex.

There were several large lawsuits brought last year saying that DOMA was unconstitutional, because it is federally supported discrimination against gender, in violation of the 14th Amendment. Recently, Attorney General Eric Holder and President Obama declared that the US Justice Dept. was no longer going to prosecute cases under DOMA because they recognize that DOMA is unconstitutional.

Last month, Sen. Kirsten Gillibrand (D-NY) and 11 other senators wrote a letter to Attorney General Eric Holder asking the Obama administration to stop the deportation of gay immigrant spouses. See the Advocate’s interview with Sen Gillibrand here.

One of the best organizations fighting for Immigration Equality is – well Immigration Equality. Click on the link to find out more.

Right now, it appears that my spouse is a man, I could sponsor him to get a green card. But if my spouse is a woman, I cannot.

Elder Mediation hits the Press !

Joy Rosenthal — Sun, 06 Feb 2011 02:04:13 +0000

The Wall Street Journal published a terrific article yesterday, Family Value: A Referee for Family Disputes, about the value of elder mediation, and its value to families facing tough decisions around care-giving and inheritance. This is just the latest in several major newspapers to cover it. It’s exciting to be one of the forerunners of this new and growing field! I recommend a few:

Eldercare Mediators help resolve Feuds, Washington Post, Dec 14, 2010

When the Family Needs an Umpire – NY Times blog, Oct 25, 2010

Mediators Focus on Elder Issues – Wall Street Journal, March 14, 2010

Outside experts save family feelings… and more – San Francisco Examiner blog, Jan 25, 2010

Oh Brother! With Parents Aging, Siblings turn to Elder Mediation – AARP Bulletin, Sept 20, 2010

Mediators help Families with Tough Choices of Aging – NPR, April 13, 2009