Capital Comment Blog
Legally Speaking: Cheryl New
A veteran divorce lawyer shares tips on avoiding a split and protecting your assets if you do break up
Bethesda-based divorce lawyer Cheryl New, a name partner at New & Lowinger, has been practicing in Washington for nearly 25 years. During that time, she’s built a reputation as one of the area’s best divorce attorneys. Here, she shares insight on prenuptual agreements, how to protect your assets if you didn’t get a prenup, and the pitfalls of getting married too young.
How did you become a divorce lawyer?
I guess I fell into it. I clerked my third year of law school in 1987 at the firm which eventually morphed into my current law firm. I never left. I’m the only remaining partner of the original firm. It’s not like I watched Arnie Becker on LA Law and decided I had to be a divorce lawyer. It’s just that I found it interesting and exciting from the start. Virginia has a third-year-law-student practice rule, so I started litigating divorce cases since even before the “official” start of my career.
What are the most common reasons, in your experience, that couples get divorced?
I think the most common is that many people rush into marriage when they are too young and often marry the wrong person. Other divorce lawyers might say adultery is the primary cause, but it really is a symptom of a greater unhappiness. I have an unwritten rule for my kids—don’t get married before you are 28. Before that age, people should date and—dare I say it—sow their wild oats. While not necessarily a magic number, I think by one’s late twenties people have matured and know themselves better than at 22 or 23. A lot of growth and maturity happens as you move through your twenties and beyond—the kind which hopefully helps one make better choices for a life mate.
Are there new issues, such as the onset of social media, that are contributing factors in divorces?
The biggest issue now, and what is really different than even a couple of years ago, is the use of the Internet: Facebook, e-mails, and numerous dating sites. It amazes me that many people have an inability to curtail what they put in writing and think it is forever private. I generally don’t think social media itself is a cause for breakups, as most people aren’t meeting the man or woman of their dreams surfing the Internet while they’re married. But some people get into a lot of trouble when they are communicating with individuals, never imagining these communiqués might show up one day in the hands of their spouse and then a courtroom.
You’ve mentioned before that you see a surprising number of divorces that are the result of one spouse revealing that they’re gay. Is this also a result of getting married too young?
Over the course of my career, I have seen several people come out who got married when they were 19 or 20 and did not really realize or understand their sexual identity. Many of these marriages occurred 30 or 40 years ago, when being gay was more harshly stigmatized than it is today. Some of these marriages endured for decades and produced children. Sometimes gay individuals of that generation simply did the socially acceptable thing by marrying.
What does a prenup do?
A prenup is probably most commonly used in marriages that are not first marriages, in order to protect children’s interests from a prior marriage or to preserve assets accumulated prior to the new marriage. Many people are under the misconception that a prenuptial agreement is only operative upon divorce. Prenups are also used to determine how the estate is disposed of if one spouse from a successful and happy marriage dies. When you have children from a first marriage, it’s appropriate and often helpful to the new spouse and “old” kids to get the issues right out there on the table so that there is no animosity or energy spent claiming territory. Prenups can also deal with alimony terms in the event of a divorce. They don’t address child-related issues. You can’t predetermine custody or child support. Prenups for first marriages are more problematic. It’s close to planning for a divorce, during what should be a happy time in a young couple’s life. In my experience, it is more difficult for younger couples to deal with the emotional side of that, as opposed to a couple who isn’t new at the institution of marriage and is more pragmatic.
If one spouse has a lot more money than the other but the couple did not get a prenup, can the wealthier person still protect his or her assets?
There are ways to protect yourself if you don’t have a prenup. One spouse can keep all of his or her savings or assets in separate accounts and not commingle that with any “marital” monies. That way, he or she can attempt to ensure that these assets are not going to be fair game in the event of a divorce. But what happens if he or she wants to buy a house with the new spouse with that money? What happens if he or she wants to use those monies to invest in a new business deal? What happens when the other spouse says they feel that it’s not fair to keep the money separate? Retitling, commingling, and investing diminish the protection and make it much more murky in the event of divorce.
There have been some recent studies about how more women are taking their husbands’ names when they get married. Do most of the women you work with use their married names?
Most of the women I represent, even professional women, go by their husband’s name. I do. I changed my name when I got married, even after I had been practicing with my maiden name. I have four children. I think it is important that my kids have the same last name as I do. It is rare that I have a client who wishes to go back to her maiden name if she has children, even if she harbors animosity toward her ex-husband.
Any marriage advice, since you’ve seen so many failed marriages?
You should make sure that you really get to know a person before you marry them. Deciding who you marry is one of the most important decisions most people make, but many people rush into the decision with blinders on. As I said before, I’m a big proponent of not getting married when you’re too young.
Also, before jumping into marriage, people should make sure that they and their future spouse share common core values and life goals. Do you share a similar upbringing and common interests? Is religion important to you, or if not, do you agree how you will raise your children? Do you have the same financial goals? Compatibility around these issues makes it that much easier to navigate a successful marriage.