Matrimonial Law, Mediation and Marital Assets with Sheera Gefen

In this episode of the Rising Leaders of New York podcast, we welcome guest Sheera Gefen, Supervising Attorney of the Matrimonial Unit of District Council 37’s Municipal Employees’ Legal Services, and Certified Divorce Mediator.

Tune in as Sheera talks about:

• How she became a matrimonial lawyer
• The effects of the pandemic on the custody process
• The difference between litigation and mediation
• Marital, intermingled and separate assets
• Prenuptial and post-nuptial agreements

Sheera Gefen, Esq. graduated Phi Beta Kappa, magna cum laude, with a B.A. in psychology from Barnard College, Columbia University and earned her J.D. from Fordham Law School. She has been a practicing attorney for 14 years and has gained expertise exclusively in matrimonial law for most of her career, working for District Council 37’s Municipal Employees Legal Services. She has extensive experience representing clients in custody, child support, maintenance and equitable distribution matters as well as resolving disputes pertaining to the distribution of governmental and ERISA pensions.

For the past 10 years, Sheera has been an instructor of Business Law at Touro College. Her research on the psychological implications of procedural justice has been presented at various psychology and law conferences including the European Conference on Psychology and Law in Krakow, Poland, the annual meeting of the International Congress of Applied Psychology in San Francisco, CA, and the annual meeting of the American Psychological Society in Washington, D.C.

She often appears as a guest-lecturer at universities, speaking on topics related to the interplay between psychology and law. Sheera is also a Certified Divorce Mediator and a member of the Academy of Professional Family Mediators.

For more information:

District Council 37’s Municipal Employees’ Legal Services (212) 815-1140

For mediation and/or consultation: (917) 821-9465

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Read the full transcript:

VOICEOVER ( 00:00:01): Welcome to Rising Leaders of New York with your host David S. Zwerin of Hill & Moin LLP. They present to you conversations with today’s and future leaders of New York City discussing the challenges and issues relevant to New Yorkers. You can find this show at www.hillmoin.com and on Youtube, LinkedIn, Apple podcast, Spotify, Google podcast and more. Now, here are the hosts of Rising Leaders of New York.

DAVID ( 00:00:31): York. Hello, everybody. My name is David and I am the senior trial attorney at the law firm of Hill Moin LLP. We are a plaintiff’s personal injury law firm focusing on construction accident, litigation, as well as premises liability and other types of personal injury matters where our clients are seriously injured due to the fault of somebody else. Aside from that role, I get the great pleasure of hosting this podcast. You’re listening to Rising Leaders of New York, where each episode I get the privilege of speaking with really interesting guests at the forefront of talking about the issues that you as New Yorkers need to know about in this interesting ever changing world we’re living in today. And for today’s podcast, I’m very excited. We have a wonderful guest. We are joined today by Sheera Gefen. She is a outstanding matrimonial attorney and she also works for DC 37 1 of the top unions in New York City. She has a lot of great experience litigating and mediating matrimonial law and I think we’re gonna have a great discussion today. So, Sheera Gefen, thank you so much for joining us today on Rising Leaders of New York.

SHEERA ( 00:01:54): Thank you, David for having me.

DAVID ( 00:01:57): She, can you tell, tell me a little bit about your background. How did you end up being a lawyer? And how did you get into the area of matrimonial law?

SHEERA ( 00:02:07): Sure. So how I became a lawyer might be a little bit different from you know, my, my answer to how I became a matrimonial lawyer. Um You know, I was always interested in the interplay between law and psychology. Um It, it always fascinated me when I graduated law school. I had student loans as many students do and I was recruited to work for a large law firm in New York City. Um I enjoyed the experience to some degree, but I realized that it was also not for me. Um And I was at a wedding one day, a good friend of mine got married in, in Manhattan and I received a literal and figurative elevator pitch from a man who worked at District council 37 who said to me that there’s an opening in the matrimonial unit and that was approximately 20 years ago. And I, I said that’s interesting. I always thought of divorce law as a nice, um, you know, a nice area for just, you know, to sort of, um, it combines my interests in, in psychology and law because as you imagine people that are going through a divorce, do you know they deal with a significant emotional matters, you know, and so that interplay really appealed to me, I ended up applying for, you know, to the position, got the job fell, fell in love with my then mentors, supervisors 20 years later. Now I’m the supervising attorney of the matrimonial unit and that’s how I became a matrimonial attorney.

DAVID ( 00:03:41): Very interesting. You mentioned DC 37 or District council 37. What exactly is that? And and what do you do with the New Unit for them?

SHEERA ( 00:03:53): Yeah. So district council 37 is the largest public union in, in New York we represent, I wanna say about 100 and 25,000 municipal employees. It can arrange from range from school aides to a staff psychologist at Coney Island Hospital, various positions. You know, the people who work for the city department of, of Environmental protection workers that are essential, you know, for the, for the running of the city. And so through a prepaid legal service plan, they get this wonderful benefit. It’s under the auspices of the municipal employees legal services and there are various legal units that provide services to them. So there’s for example, a family law unit, there’s an immigration unit. Uh there’s a housing unit, consumer unit bankruptcy and, and so forth. I run with a co supervisor, Lisa, the two of us run the matrimonial unit comprised of about 15 attorneys, secretaries and legal assistants. And we represent municipal employees in a, in a divorce proceeding from A to Z. We also help with separation agreements and we represent them in post judgment work as well. So for example, if there’s an issue after a divorce that arises, they have us as attorneys.

DAVID ( 00:05:15): and your services are for people, for specifically the members of DC, 37 all the many municipal employees throughout the city that need family services or immigration or housing or in your case, matrimonial services. Correct.

SHEERA ( 00:05:30): Yes, that’s right. And a lot of our, a lot of our clients are, you know, I, I’m gonna say a significant amount are low income and they would not normally be able to afford the an attorney. And so it’s really a fabulous service having been in private practice. And, you know, I, I, you know, I have my foot in that door and in, in many, in, in, in my experiences in the past and I can tell you that it’s a fabulous service and, you know, sometimes we do deal with the clients that are of a higher net worth or that are in a matrimonial case, for example, that might be married to a spouse that have high net worth, incomes and so forth. And so there’s a, there’s a range, but I, in general, we, we, we pride ourselves at DC 37 for being able to provide a service that many people would normally not be able to afford.

DAVID ( 00:06:18): How have you seen that? Either your practice or the union has been affected since the pandemic. How have things changed for in your daily work?

SHEERA ( 00:06:29): You know, it’s interesting, I I also work as a, as a mediator on the side, you know, I I resolve disputes, amicably representing parties in a divorce. And so in both of those worlds, I’ve seen a significant effect that COVID-19 has played on divorces, you know, whether it’s an amicable resolution or a litigious one. It’s a very interesting question and I can kind of think about it in different spheres. So for example, on the custody, parenting side, you can imagine, I, I’ll, I’ll start off by saying that in New York state custody is a major issue when dealing with children under the age of 18, right? It has to be resolved in order for a judge to grant a judgment of divorce, there needs to be some sort of resolution with respect to custody. And the word custody in, in essence, comes with two main meanings, you know, the definition of that word. So you can look at custody from the standpoint of joint legal custody, which means that both parents have equal decision making power in a divorce, right? And then you can also look at it from a sole legal perspective in in a situation where a client has sole legal custody, it means that that person is the sole decision maker when it comes to the major decisions in a child, in a child or in a children’s life. So before the pandemic, the major decisions in a child or children’s life would be something along the lines of religious upbringing. You know, how, how does somebody want to religiously raise their child? Educational decisions? Are, is the is the kid gonna attend a public school or private school? Right? Is the child going to dorm at college or stay at home? Those kind of decisions, medical, you know, God forbid there’s surgery, what surgeon is going to be appointed or used to, to perform this major surgery? Extracurricular activities, like will my kid play football or or will, will she have ballet lessons and so on? Those were the major categories during the pandemic, those categories shifted. So generally prior to the pandemic, regardless of who had custody of the Children the day to day decisions would be determined by the individual parent who has the parenting time with the child, irrespective of whether that individual parent has joint or sole custody. And so whether a kid would eat Rice Krispies or Cheerios for breakfast, or whether a kid would go out to a baseball game, a Sunday or watch a movie at home would be a day to day decision by one parent during the pandemic that became a major decision. You know, there were stay at home orders, there were fears of, of this deadly virus. You know, there were, there were arguments constantly over the past number of years, over the past I guess three years now, we’re in this pandemic, you know, where is it? Ok to bring my kid to a base, an outdoor game or an indoor mall, you know. Um, and so those issues were really focused on and caused a lot of debate. It, it incurred a lot of legal expenses and, and mediation, assisted in, in avoiding some of those costs. Um, so in that sense that, you know, in that custody world, in that parenting time world, it, it really had a major effect.

DAVID ( 00:9:44): Do you find those issues are still at the forefront of a lot of marital disputes or have things shifted back to a little more of how practice used to be before the pandemic? How is it looking.

SHEERA ( 00:9:56): now? Well, it’s calmed down a bit, certainly. because the numbers have gone down. Right. But we still have situations where one parent might be very aggressive in protecting their Children. You know, the one parent might want the child to continue to wear a mask in certain situations where another parent says no way I’m done with this, you know. I have a recent case in mediation that I had to mediate not long ago where the nanny would walk into the door and not wash the hands, you know, mom didn’t care. Dad was furious and wanted the nanny to be fired, you know, so I am still seeing those, those situations come, you know, we’re not, we’re not exact the the virus is still out there. There’s still some fears and depending on where you fall on the spectrum and with regard to the, the, the strictness of your own practice it, I still see it but it’s less, it’s less.

DAVID ( 00:10:51): So, what are what are some of the issues that people should know about in this current world in terms of of pursuing mediation versus litigation? I think you mentioned both of those terms. I’m not sure all of our audience knows the difference. So if they’re too related or they’re interconnected, do you do both? Yeah,

SHEERA ( 00:11:15): so yeah, I can give you a, a brief def my own definition, you know, of, of, of the two terms. So when you, when you hear the word litigation to litigate is to bring a lawsuit. But the connotation certainly in, in my area of practice, when you, when someone uses that term, that person is referring usually to a fight, you know, a fight that’s brought in to a judge’s attention, you know, judicial intervention. So when someone files for divorce against his or her spouse, the request for judicial intervention in, in our, in our world, we, we call it the RJ. I leads to quote unquote litigation, it leads to court appearances and potential motion practice and hearings and perhaps even a trial. It’s not to say that when you litigate that you can’t settle out of court, that you can’t potentially enter into a settlement agreement that amicably resolves, you know, your issues without a judge’s flex of a muscle, right? But mediation is is the term that we use it. It mediation is actually a, a form of alternate dispute resolution. You know, some of your viewers might know of, know of it as ad R and it’s in essence what a mediator does like when I mediate, I take off my lawyer hat and I tell the parties that I’m mediating that. Although I have knowledge and expertise in, let’s say matrimonial law, I am going to now be neutral. I am going to try to work out an an amicable compromise, right? Where both of you are going to hopefully avoid litigation, avoid ha you know, fighting with your individual lawyers to try to resolve your matrimonial dispute and, and, and in a mediation setting, certainly in, in, in, in the matrimonial context, I often tell my clients that if both of you are a little bit unhappy, you know, with the end result, if, if you’re a little bit ticked off with me at the end, right. I probably then did a good job, you know, if one of you is crying in the corner and the other one is popping the champagne cork, jumping up and down that he, you know, that he got a great deal or that she got a fabulous settlement. I probably didn’t do such a great job. But if, if each of you feel like you compromised a bit that there was a give and a take that, that, that I’m, that makes me happy, you know. And, and the idea behind mediation is that you’re avoiding burdensome expenses, you know, you’re, you’re sitting around a table with someone who is neutral who is trying to make it resolved, you know, make your disputes resolved quickly as quickly as possible. Less formal and, you know, divorce is, is so emotionally burdensome to begin with it. It sort of, it, it, it, it lowers that, um, that burden to AAA much a much, you know, AAA, big degree.

DAVID ( 00:14:18): Am I correct that the cases in which you mediate are separate from the cases in which you litigate you, sometimes you’re wearing a mediator hat to resolve other people’s disputes and other times you’re litigating on behalf of clients.

SHEERA ( 00:14:35): Yeah. In fact, there’s an ethical issue that will arise if a mediator would take on a case as a litigator for the same for, for, you know, for the couple or for an individual that, that he or she’s mediating, right? So when I’m a mediator, they’re in essence waiving their right to use me in the future. If the, if the media, if the mediation were, was to fail, right, they would have to hire other individual attorneys to take on their divorce matter and, you know, and, and go at it, head to head in court if needed, right? Um You know, there might be some exceptions out there where some mediators might feel comfortable taking on a case of one of the spouses I’ve actually run into mediators that they’re few and far between, but some, some will be ok with it so long as they disclose the ethical conflict and prepare the right waivers, so to speak. Um, but I personally am not comfortable with that in my mediation practice. You know, they, my, my clients know that if they’re hiring me, I’m going to do my best to get them to sign a separation agreement or a settlement agreement that resolves their dispute in their family matrimonial context. But that if it doesn’t work, I can’t help them anymore.

DAVID ( 00:15:48): in cases where you’re not the mediator. Are you ever able to separately, both litigate and then separately recommend it to your client. Let’s put a hold on litigation and pursue mediation rather than go to trial.

SHEERA ( 00:16:01): Absolutely. Absolutely. And it happens a lot. I mean, I, I, you know, it happens enough where, you know, as an attorney, you’re representing the client, things get, things get very involved. Um, and then suddenly the client might say, you know what I want to put this on hold and let’s try to work this out with a mediator, you know, um at DC 37 I might, you know, my position at DC 37 and we don’t have AAA mediation unit, but I will say that over 90 I wanna say even, you know, I don’t have the actual statistic, but I want to say that over 90% of our cases at DC 37 will settle. And by definition, what that means is that the, the, the parties that are involved in the divorce will enter into a stipulation of settlement. The word stipulation means a binding contract that resolves all their divorce, you know, issues. Um And when you settle, you’re really acting as much as you can in an amicable way to resolve around a table, you know, the issues that the clients are arguing over and, and you’re, you’re taking the judge out of the picture. So it’s not mediation. Exactly. But it is a way of resolving a dispute without, you know, without leaning on a judge to make a decision.

DAVID ( 00:17:17): It’s interesting that, certainly in our practice mediation, I imagine runs very, very differently. But what we do is we’re looking for for cases and almost always the cases that are very serious and require litigation. But, a vast amount of our cases I would venture to say, do successfully resolve it. Mediation, oftentimes they won’t. and then we have to aggressively pursue going to trial. But certainly for us, the phrase that both sides should be mutually unhappy is a phrase that, I’ve heard many good mediators. I know and respect very well. Say so I know you must be doing something very correct here if you’re telling your clients that as well, I’d

SHEERA ( 00:18:00): hope, you know, I’d hope

DAVID ( 00:18:03): and I’m sure mediation is not our, I guess our mutual use of mediation is the only overlap that personal injury has with, with your word of matri of matrimonial law. Are there any aspects of matrimonial practice that involve personal injury or where you have to maybe be consider whether there’s a personal, if there’s a personal injury case, would it affect a matrimonial

SHEERA ( 00:18:28): case? Yeah, that’s a great question. Most definitely, you know, when we first meet a client at intake, we, we have them fill out a questionnaire. Our office at DC 37. That is and also as a mediator, I do the same. And more than the questionnaire, there’s something known as a statement and net worth that often get, will get exchanged in the, you know, during the divorce process and a statement and net worth will list all the assets and liabilities of each individual spouse, right? But they will also list pending lawsuits or contingent interests in the matrimonial case. And so person, a personal injury claim is considered a contingent interest if it’s pending, right? Um If it was already resolved, it could be potentially an, you know, an asset that would have to be listed on a net worth statement as part of discovery. You know, we call that as part of the financial disclosure aspect of, you know, the divorce procedure. So one of the big questions that divorce lawyers and mediators alike have to deal with is what portion if at all of a personal injury award is considered quote unquote marital um versus separate. So for me to just expand

DAVID ( 00:19:51): marital property,

SHEERA ( 00:19:53): good. Yeah. So for me to, that’s what I was gonna expand on. So marital, um marital assets refer to any asset that accrued during the marriage. And specifically, that means from the date of marriage until the time of commencement of a divorce action. So until the time a spouse files for divorce or from the date of marriage until the time that the spouse is entered into and executed a settlement agreement or a separation agreement. That window is considered the marital window for equitable distribution purposes. Meaning we look at that time frame in, in when we assess what assets if any need to be distributed in a divorce, separate property refers to any asset that accrued before the marriage or after the commencement of a divorce or after a commencement of a separation agreement or I’m sorry after the execution of a settlement agreement. And there are other examples of separate properties such as gifts, inheritances and so forth that I won’t go into right now. But personal injury, when you hear that, you know that that phrase immediately, a divorce lawyer is going to say, oh, personal injury, that’s separate property. Anything related to personal injury is generally separate property, I say generally because as you probably know best, anything that relates to pain and suffering, any o award monetary award that um is attributable to pain and suffering is actually separate property, meaning it is not subject to be divided in a divorce that stays separate, right? Um However, if a spouse has a loss of consortium claim, which you probably could explain better than I can, right? Um which relates to a personal injury matter or if a spouse, let’s say has a lost wages claim, you know, or you know, has gets money from a personal injury action as part of a settlement or as part of a judge’s determination. Do you know if if, if, if a client gets lost wages, that if those lost wages accrued during that window that I referred to earlier during the, you know, the date of the, from the time of the marriage to the time of a commencement of a divorce action or the execution of an agreement that’s subject to be divided in a divorce. Um And so we have to look closely and we often actually consult with people like you and your firm to determine what part of the injury award is, is gonna be designated as marital versus separate. Um There, there’s also something else interesting to mention, which is that, you know, people don’t always realize that even though a particular asset may be considered quote unquote separate and untouchable by the other spouse in a divorce, there’s always a chance that that asset can be what’s called intermingled or transmuted and then it can lose its separate property identity and become what’s called marital. So just as a quick example, if let’s say you have a couple and they’re not getting along and they’re living in their home and I don’t know, the wife gets into an accident and, hires your firm and gets a, a million dollar settlement. You know, you guys do a great job. I know a great, great work. I know that from my own clients that have used your services. So, if they get a million dollar settlement and they say, oh, this is my money, this is gonna, this is gonna be, and I’m, I’m contemplating a divorce and I want to keep this separate. If they use that million dollars to renovate their kitchen, you know, among other things, let’s hope that the kitchen doesn’t cost a million dollars to renovate. But if they take some of that money and they pour it into their marital house, you know, their marital residence that they purchased during the marriage, that could potentially be lost. I say potentially because it, it, there’s a lot of nuances that need to be analyzed and really determining whether or not it will maintain its its status. But when you intermingle thing, you know, personal injury awards into a joint asset or into a marital asset, like if you take that million dollars and you put it into a joint bank account that’s giving that, that’s basically showing, demonstrating that you might have intention that that award is really to be shared by both you and your spouse. And so there, there, I, I think that if you ever had a client come to your office and, and they were he or she was contemplating a divorce, they might wanna, that person might want to consult with a divorce attorney to make sure to protect that asset so that it would be untouched in a divorce.

DAVID ( 00:24:32): That’s, it’s very, very interesting. And certainly most of our claims do have multiple of those types of claims that you mentioned. I was, I was very much wondering if you were gonna mention loss of consortium that immediately as you were describing that if it’s a separate property, I figured that that has to be a marital property losses consortium claim. But the interesting thing is for most plaintiffs, if, if you take a verdict, um you win your case on liability on damages, there could very well then be a breakdown that is going to specify exactly where each amount of the money is going to, whether it’s the loss of consortium claim for the spouse, the lost wages and then what for the pain and future suffering or maybe the future medical cost? Um and it could be very easy to break it all down, but it’s very interesting to also consider that even if a property is separate, there could be a way to mess that up afterwards. So yeah, sounds like it would be very well off to, to speak with you if they have a, a personal injury case and are either contemplating or maybe finishing up a, a divorce at the same time.

SHEERA ( 00:25:43): Yeah, I mean, I I can also mention that um you know, I’ve done prenuptial agreements as well as post nuptial agreements. So prenuptial before the marriage and postnuptial after people have gotten married, um both in a mediation setting and, and just as a consultant attorney that was hired to, to help out on, on a case and, those agreements have a lot of value to individuals who want to protect their assets. And in particular, I think it’s quite common when someone is about to, let’s say, you know, someone is, let’s say someone is due to get an inheritance. Unfortunately, you know, someone is soon going to pass and, and, and a person knows that they’re, they’re gonna, they’re gonna get a, a big chunk of change or in a personal injury situation where someone knows that they’re going to get a significant award and they want to protect it. One way of ensuring to do so is to hire an attorney who specializes in, in divorce and, and family law, to draft a postnuptial agreement if they were married, for example, to basically say that even if we intermingle this asset, even if I deposit a million dollars into my joint account, I, that, that, that value is still going to be protected. So that’s a way to also, you know, sort of think about protecting clients in those situations.

DAVID ( 00:27:9): That’s very interesting. And I imagine that would be a good opener, maybe potentially for, for spouses to consider pursuing such an arrangement, which I imagine a postnuptial agreement perhaps sometimes more often than not, is something one spouse is more interested in than the other. Because if they could work it all out, why did they do a prenuptial agreement?

SHEERA ( 00:27:32): Right. You know, I it’s funny, I have mixed feelings from a personal standpoint, you know, versus a professional standpoint about prenups and post ups, you know, as a professional, you know, who practices this in this area. I will always say that a prenup and a post up is, it could be the way to go from a personal standpoint. It’s difficult to raise that when you’re in a romantic relationship with someone that you trust. Right. I mean, I, I personally don’t have a prenuptial, excuse me. I personally don’t have a prenuptial agreement, you know. Um, because I, I believe in, in love and trust, you know, very often it’s the shoemaker, you know, whose kids don’t have the shoes or whatever that expression is, you know, the lawyer might be shooting herself in the foot, but I’m blessed with a happy marriage and I trust my husband and God forbid if it did end up in divorce. And, you know, iii I can’t imagine us wanting to, you know, kick the other to the curb. Right. Um, but these, these postnuptial and prenuptial agreements by definition, an agreement is a voluntary contract and so you need both parties to voluntarily want to do it and, and it’s not an easy thing to, to, to bring up, you know, certainly, if, if, if, if you’re happily married, it’s not easy and then if you’re not happily married, it’s also not easy, you know. So it’s a challenge it’s a challenge to even sometimes get tho those agreements drafted or signed. It’s not for everybody.

DAVID ( 00:28:56): Very interesting. I, I have so many more questions, about that, about that topic and, I imagine it would be very interesting, I guess hearing how, clients often get to your office to pursue these ups and post up agreements. But I’m afraid we’re about to hit all the time we have for today. Uh, so she, is there any way that any number or, contact information you would like to get out if people want to, get in contact with you or District Council 37?

SHEERA ( 00:29:26): Sure. I mean, I, I can give you, two numbers. One is, if you happen to be a municipal employee who’s eligible for, the, benefit, at DC 37 the number to call is (212) 815-1140. If you’re interested in mediation or consultation, you can call (917) 821-9465.

DAVID ( 00:29:53): Very, very good. Sheera Gefen. It was such a great pleasure having you on. Thank you so much for coming in and telling us, about what you do and many, many interesting developments I learned a lot today, about, the interplay of personal injury and marital law. We, we’re all just practicing the law every day and getting a little better. So this was really, really, interesting and illuminating for me. So thank you so much for, for joining me and talking to our guest today.

SHEERA ( 00:30:21): It’s my pleasure. Thank you so much for having me. David.

DAVID ( 00:30:23): Thank you so much, everybody for joining me for another episode of Rising leaders of New York. Once again, my name is David Zwerin, the senior trial attorney at Hill Moin, plaintiffs personal injury firm focusing on construction accidents and premises liability cases. Uh, if you have a, a case where you’re seriously injured in a construction accident or on premises, we hope to hear from you and, if you happen to be involved in a matrimonial, you should certainly give a call too until then. My name is David Zwerin and I hope you join us for another episode of Rising Leaders of New York. Take care everybody.

VOICEOVER ( 00:31:05): You’ve been listening to rising leaders of New York hosted by David Zwerin of Hill & Moin LLP. You can catch prior episodes at www.hillmoin.com and on Youtube, LinkedIn, Apple podcasts, Spotify, Google Podcasts and more. Thank you for your positive reviews, comments and sharing this show with others.