Relocation and Divorce -Items to Consider in Divorce Mediation

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One of the many items to consider in a divorce mediation is relocation. This is especially important when you are considering the parenting plan you are creating. Every family’s circumstances are different and what is right for one family may not be right for another family. Because something works for a friend or a family member does not mean that this is the correct way to move forward. Divorce Mediation allows you the flexibility in determining the right path for you and your child(ren).

The parenting plan and the scheduling of drop offs and pick ups changes if one or both of the parents are considering moving out of the neighborhood or even out of state.

When the topic of relocation comes up, it is common to hear people say that the parent(s) can live anywhere in New York. However, most people do not consider what this truly means. Stating that a parent or the child can be moved anywhere in New York may mean a 10 hour commute between the parents if one lives in Long Island and one person lives in Buffalo. This does not seem like a feasible arrangement. In fact, New Jersey or Connecticut could be much closer than a multitude of cities in New York. I generally find that most people when they say “New York”, really mean within Long Island or close to the area that they are currently living in. If that is what is meant then that is what should be subscribed to writing in the agreement the parties are entering.

When coming to terms on your divorce and in particular, the possibility of relocating, below are a few of the items you may want to consider.

(a) Whether you both plan on living in the same town.
(b) If one or both parent(s) are considering moving away then how far apart the parents want to live — are you thinking 20 miles or 20 minutes (depending on where in New York you live minutes and miles makes a difference).
(c) Will both parents be dropping and picking up the child(ren) and/or transporting them to and from school and their extra-curricular activities.
(d) Will the child(ren) be living at one home or two during the week.
(e) Do you both want to be within the same school district.
(f) Will one parent(s) job require them to move out of state.
(g) Is one parent’s relocation wanted or needed to care for the child(ren).
(h) The parenting plan you are seeking; i.e. how time is going to be split between the parents – will the parents split the week and weekends equally? Will one parent have the child(ren) all week or just on the weekends? Will one parent be required to drive the child(ren) to the other parent who lives out of state?

While the above is not an all inclusive list of items to consider, they should not be ignored. They are extremely important factors for consideration and some may be applicable to your situation and others can be discounted as they are not pertinent or specific to you.

If you would like more information about divorce mediation and how the process may benefit you, contact Sheree Donath at sheree@donathlaw or at 516-522-2743. Everyone is unique and divorce mediation can be tailored to your situation so that it works for you both now and in the future.

Halloween in the Workplace – BEWARE!!

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Halloween is a time for fun. But what does that mean when you are at work? Halloween in the workplace can be very tricky and not much of a treat.

If you are going to wear a costume to work, be mindful of the following items, among others:

  • costumes should not be sexy or provocative;
  • costumes should comply with workplace dress code policies;
  • costumes should comply with workplace anti-harassment and anti-discrimination policies;
  • costumes should not be inappropriate;
  • costumes should not be religious;
  • costumes should not be offensive to others;
  • costumes should not be so realistic or scary that they may result in health issues to others; and
  • costumes should comply with all safety requirements of your office

Keep in mind that Halloween is a religious holiday. As such, some employees may not want to participate in a Halloween party, costumes or events because of their religious beliefs. Employees should not be mandated to attend any Halloween parties or events or made to feel bad about their decisions. Employees should not be retaliated against for their non-attendance on Halloween or afterwards. Employees should not be harassed by colleagues or their supervisors to attend these events.

Employees should be reminded of all company policies prior to Halloween as Halloween events and parties could result in legal claims of, without limitation, sexual harassment, discrimination, retaliation, overtime, worker’s compensation.

Employees who believe they have been treated in an inappropriate or illegal manner should immediately report the conduct as required by their employer. They may also want to consult with an attorney to find out more about their rights and options and to determine if they can take legal action, if they so choose. Contact Sheree Donath at (516) 522-2743 or at Sheree@DonathLaw.com to obtain more information to learn more about your rights and obligations at work.

Divorce Mediation Checklist – Topics to Help You Prepare for Your Mediation

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When getting ready for your divorce mediation, you should be prepared to speak about your thoughts and concerns on the following topics. These items, amongst others, will be discussed in detail and if/when the parties come to terms on each, they will be put into a written agreement for the parties to review, sign and follow.

Some of the topics for discussion in mediation include:

  • Legal and Physical Custody (decision-making authority and time spent with the children)
  • Parenting Plans (weekdays, weekends, holidays, school vacations, summers, childcare, birthdays, etc.)
  • Extra-Curricular Activities of the children and Add-On Expenses
  • Child Support
  • Relocation of children and/or parent
  • Communication with and about the children
  • College
  • Maintenance
  • Health insurance for each person and children
  • Life Insurance
  • Pension Plans/ IRAs
  • Distribution of Property (real estate)
  • Distribution of Assets (bank accounts, stocks, investments, household furnishings, jewelry, etc.)
  • Distribution of Expenses (mortgage, utilities, taxes, insurance, etc.)
  • Distribution of Liabilities (credit card debts, school loans, etc.)
  • Inheritances
  • Filing of Taxes (married/single, dependents, refunds, etc.)
  • Bankruptcy

The above is not an all inclusive list. It is a helpful overview of what information you may want to gather when preparing for your mediation session. You may also want to gather documents to bring with you to the mediation session to help you make decisions on the various topics stated above.

For more information on divorce mediation or to schedule a mediation, contact Sheree@Donathlaw.com or at 516-522-2743.

What Can I Ask for When I’m Negotiating a Severance Package?

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Employees who receive a severance package should have the document reviewed by an attorney to ensure they understand what they are signing. They can also seek to have the package improved. In doing so, may employees ask for some or all of the below:

  • Additional severance
  • Payment of severance over time or in lump sum depending on what is more beneficial for the employee
  • Health benefit continuation for themselves and family
  • Bonus or pro rata bonus
  • Accelerated vesting of options/equity
  • Return of their personal property
  • Outplacement assistance or money in lieu of outplacement
  • References or a departure statement
  • Mutual release
  • Mutual non-disparagement
  • Release from, or limitations on, non-compete or non-solicit provisions
  • Expense reimbursement
  • Removal of any mitigation of severance offer language
  • Modification of the agreement language

For more information about your rights and options and to determine how you may request some or all of the above items, contact Sheree Donath to schedule a consultation.

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What Terms are Generally Found in a Severance Package?

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Employees departing from a job (voluntarily or involuntarily) may receive a severance package. Why? Because the Company has decided that it is in the Company’s best interest to have the employee sign a document with certain specific terms that are protective to the employer. Some Company’s have a severance “policy” while others believe offering employees severance makes good business sense. Regarding the latter, many Company’s feel that in providing employees severance (sometimes even a minimal amount of pay), the employer is generally obtaining peace of mind that the former employer will not raise any claims in a government agency or in court against the employer.

So what terms are generally found in a severance agreement? Below are just a few of the many terms that can appear:

* Consideration – the amount the employee is to be paid in severance, the payment structure and possibly payment of employee’s health insurance or COBRA;

* General Release of Claims – employee to release the company (as well as its directors, officers, parent, subsidiary, etc,) from any claims from the beginning of the world until the date of signature;

* Confidentiality – employee’s agreement to keep the terms of the severance offer and the circumstances of their departure confidential;

* Non-Disparagement – employee’s agreement not to disparage or say anything bad (verbally or on social media) about the employer (officers, directors, parent subsidiary, etc.);

* No Re-Hire – employee agrees not to seek employment with the employer (parent, subsidiary, etc,) at a later date;

* Cooperation – employee agrees to cooperate with the employer should employer need transition assistance or if the employee has information the employer needs at a later date;

* Non-Compete / Non-Solicitation – employer restates any continuing obligation the employee has previously agreed to by written document or establishes new terms that the employee is being asked to agree to in conjunction with the signing of the severance agreement;

* Choice of Law/ Arbitration – employer sets out what Court and what law applies to the agreement and/or the requirement that the employee arbitrate any claims that may be raised;

* Effective Date of Agreement – the agreement will set forth the time period the employee has to review the agreement and whether the employee can revoke their signature;

* Right to Consult with Counsel – the agreement should state that the employee has a right to have the document reviewed with an attorney prior to signing the agreement. A severance package is an enforceable legal document. Any employee who receives a severance package should have the agreement reviewed prior to signature so as to understand the terms within, if there is any opportunity to increase the offer and what, if any, concerns the attorney sees regarding the language in the agreement and the basis for the employee’s termination / resignation.

Click here to schedule a consultation with Sheree Donath to have your severance package reviewed or learn more about your rights and options as an employee or former employee.

Fired? Downsized? Laid off? Let go? Terminated? Can I Get Severance?

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Employees often want to know if there is a difference between being told they are fired, told they are being laid off, let go, downsized or terminated. In some instances there are, but in other instances, regardless of the terminology, fired is fired. Regardless of the word that is used for your departure, you will no longer be employed at your current employer and you will need to seek new employment. The questions that generally stem from there include when will my salary be paid until? When will my benefits end? Will I receive unemployment benefits? Do I have any restrictions on my employment? And will I be given a severance package on the way out?

Receipt of severance may depend on several items, including among others:

  • whether the Company has a severance plan
  • whether you are the only person being terminated as a one-off termination or whether you are part of a larger group of employees being let go as part of a layoff
  • whether your departure is based on your performance review or in response to a performance improvement plan
  • whether the Company is closing a portion of the company requiring the Company to provide written notice and payments for a set period of time (i.e. WARN notices)
  • whether you have been terminated with or without cause
  • whether the Company is concerned about your departure and wants you to sign an agreement releasing any claim(s) you may have raised or could raise against them
  • whether the Company wants you to sign a non-compete agreement

To learn more about what Why you Should have Your Severance Package Reviewed Before Signing, click here

If you have been fired, downsized, laid off, let go or terminated you should speak with an attorney to find out your rights and obligations. If you have received a severance agreement or believe you should have received one, contact Sheree Donath to have your document reviewed.

Is a Non-Compete Agreement Enforceable? How Will it Impact Me if I Sign it?

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YES! Non-Compete Agreements are generally enforceable in New York. It is in essence a chess game between the employer and employee and/or the employer and their competitors. Unfortunately, many employees are pawns in the “game” and are harmed because they are not educated on their rights and options.

Non-Compete provisions can be found in a stand alone Non-Compete Agreement or within various documents, including, among others: Employment Agreements, Severance Agreements, Confidentiality Agreements, Relocation Agreements, Workplace Invention Agreements, Bonus Agreements, Deferred Compensation Agreements, Retention Agreements, etc. .

A Non-Compete Agreement is a legally binding contract and should be reviewed by an attorney prior to your signing the document. it may be presented at the onset of your employment in your onboarding documents, during the tenure of your employment or upon your voluntary or involuntary departure from employment.

Employers may use a Non-Compete Agreement to bind employees and to protect against their employees going to work against them for their competitors.

Employers may have an employee sign a Non-Solicitation Agreement. This can, in fact it often is, the same as a Non-Compete Agreement.

Some employers require all employees to sign a Non-Compete Agreement and some employers only have key employees sign these documents.

Non-Compete Agreements may impact your ability to transition to a new job. You may be required to disclose the terms of your Non-Compete to a potential new employer (even if the job is not the same or similar) and this may prevent you from obtaining new employment.

Any employees who receive a Non-Compete Agreement should have the agreement reviewed by an attorney prior to signing to determine if there are any terms within the agreement that can be removed or negotiated.

Any employee departing from employment, voluntarily or involuntarily. should have the agreement reviewed by an attorney prior to making any transition to understand their rights and obligations and to determine if the terms of the agreement apply to potential new employment and/or if there is any room for renegotiation of the terms upon the employee’s departure. A non-compete provision may effectively put the employee on the bench for a period of time and impact your ability to obtain new viable employment.

If you have received or have already signed a Non-Compete Agreement or an agreement that contains a non-solicitation or non-competition provision(s) contact Sheree Donath to have your document reviewed.

Can a Mediator Help Me with a “No Fault” Divorce?

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Many couples in New York choose to get divorced without going to trial. The easiest way for them to do so, is by a “no fault” divorce. A “no fault” divorce means that the couple state that there has been an “irretrievable breakdown of the marriage for at least six months.” The couple is not required to prove a breakdown of the marriage.

Couples filing for a “no fault” divorce will enter into a written agreement that sets forth a settlement of all economic issues, distribution of property, maintenance, custody and support issues, if any.

Previously, a couple had to prove grounds for divorce, such as abandonment, adultery, cruel and inhuman treatment, among others. A “no fault” divorce is quicker and easier than moving forward with divorce on one of the above grounds.

In the mediation arena, a “no fault” divorce is also preferable because it keeps the couple on target of their real goal — the divorce — rather than focusing on the underlying cause that led the couple to seek a divorce. Focusing on the underlying reason for the divorce tends to lead to animosity and possibly retribution nd can derail an amicable settlement.

The mediator can assist the couple with entering into a written agreement. The mediator can facilitate the resolution of the items necessary to accomplish the main goal of divorce. The mediator can assist the couple in raising points the couple may have not ever considered and working with the parties to come to terms on these issues. The mediator can assist with subscribing the terms into a written agreement.

Once an agreement has been reached, the couple can file for an uncontested divorce on this basis.

Contact Sheree Donath to find out if mediation is the best option for you and how the process works.

My Employer Gave Me a Retention Agreement. Should I Sign It?

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A Retention Agreement is often given to valued employees to motivate them to stay with the employer during a period of transition or turmoil at the company.

The retention agreement may offer, among others, a bonus, enhanced severance, and/or equity if the employee remains employed with the employer for a set period of time.

Employees receiving a Retention Agreement will be required to sign it and return it to their employer. Before doing so, employees should have the Retention Agreement reviewed by an attorney to ensure that they will actually receive what is being offered to them if they meet the terms.

Specifically, the employee should understand the following issues, among others, that may or may not be addressed within the Retention Agreement:

  • the time period that the employee must remain with the employer
  • what happens if there is a change of control
  • has a change of control been defined
  • who is responsible to make payment of the bonus, severance, equity, etc. that is being offered
  • what happens if the employee is terminated without cause during the retention period – will the employee still receive the reward?
  • what happens if the employee seeks to resign or leaves with good reason- will the employee still receive the reward?
  • when will the employee receive the retention compensation and/or benefits
  • is the employee’s employment guaranteed during the retention period or is the employee considered at will

Retention Agreements generally occur when an employer is considering a sale of all or part of the business, or if there has been a mass exodus of employees departing from the company.

Employees may also consider requesting a retention bonus when there are periods of instability at their employer.

Depending on the value that they offer to the employer, employees may also be able to negotiate the terms of the Retention Agreement prior to execution.

A Retention Agreement is a legal and binding document. It should be reviewed prior to execution. For more information on these agreements or if you want to have your retention agreement reviewed, contact Sheree Donath to schedule a consultation.

My Employer Placed Me on a Performance Plan. Should I Quit or Stay and Try and Achieve the Plan’s Goals?

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EMPLOYEES SHOULD TAKE ACTION AND WORK THROUGH THE PERFORMANCE IMPROVEMENT/ ACTION PLAN AND MAKE IT WORK FOR THEM!

Performance Plans are used to manage out employees. They help the employer create a written record for termination. Employees should understand that they have rights even while they are still employed and do not have to accept the performance plan as is or resign from their employment.

Many employees who receive a performance plan, wonder if they should quit. Others are pushed to resign from their employment either by their manager or HR, sometimes with the offer of minimal severance if they do so. Let’s be clear – you DO NOT WANT TO QUIT! While that is the goal of your employer, that is often not in your best interest.

Employees that quit their jobs or resign from their employment generally do not get unemployment benefits. While this may seem minimal to some people, the benefits are ones that you are entitled to and some money is better then no money. Even if you decide to accept a severance package, you should make sure that you are not resigning from your employment.

Employees that quit may also lose out on unpaid bonuses and/or unvested stock, among others. Generally if you are not employed on the payment or vesting date(s) then you lose these rewards that you have already worked hard for and earned.

Moving forward on the performance plan, while stressful, allows you to continue getting a weekly paycheck and health benefits (if you have these through your employer) for you and/or your family for at least a set period of time.

There may be changes in the company while you are on the plan and the person who previously thought you didn’t offer enough value or with whom there was a conflict, may be let go and your position may be safe. You may also be able to prove to your employer that you should not have been placed on the performance plan making it difficult for the employer to continue the plan and/or fire you.

Staying on the plan also allows you time to look for a job while you are still employed, to possibly prevent a gap in your work history.

If you are placed on a performance plan, you should have the plan evaluated and question items within. You should not simply accept the statements within the performance review or the plan as factual. You should also question the motivation and timing of your being placed on the performance plan.

If you have received a performance plan, don’t just sit back or follow the guidance of your employer or HR. You should find out your rights and options. There are various ways to proceed based on what is best for you and/or your family.

Make it Happen! Take Action Now!

For more information about your options contact Sheree Donath to schedule a consultation.

EMPLOYEES CAN TAKE ACTION WHILE THEY ARE STILL EMPLOYED AND DO NOT HAVE TO WAIT UNTIL THEY ARE FIRED OR FORCED TO RESIGN!