As I noted in this post, New York now has “no fault” divorce permitting the court to award a divorce based on one spouse’s sworn statement that the marriage has been “irretrievably broken” for at least the prior six (6) months prior to the commencement of the divorce.  So what exactly does it mean for a marriage to be “irretrievably broken” and what if one spouse does not agree to this ground?  In other words, can a spouse contest the fact that the marriage was irretrievably broken to prevent a court from granting a divorce?  Hmmm…. good question!

New York courts have yet to come to a consensus as to whether a defendant-spouse can challenge the no-fault ground for divorce and refute the claim that the marriage is “irretrievably broken”.   In 2011, an upstate New York court, in Strack v. Strack, held that a defendant-spouse can refute that a marriage is “irretrievably broken.”  However, a month later a Long Island court, in A.C. v. D.R., held just the opposite—that the sworn statement of one spouse that the marriage is “irretrievably broken” is sufficient grounds for a divorce.

New York’s first trial on this issue occurred on Long Island, New York early this year in the case of Sorrentino v. Sorrentino.  The case concerned the Sorrentios’ 56-year marriage, which the wife claimed was “irretrievably broken”.  The husband contested the divorce, refuting the claim that the marriage was broken.  In this case, the judge ruled that although the husband has a right to defend against the divorce (as did the judge in the Strack case), the defendant did not sufficiently refute that the marriage was “irretrievably broken.”  Therefore, the judge granted the divorce.

Although no-fault creates a new option for divorce in New York state, the courts are still grappling with whether or not the defendant-spouse can refute that the marriage is “irretrievably broken.”   I suggest seeking counsel before contesting a no-fault divorce arguing that the marriage has not been “irretrievably broken” for at least six months prior to the commencement of the divorce.

I receive strange looks from time-to-time when I tell folks that I am a food & agriculture attorney who also does a lot of family/matrimonial law. “Interesting combination…”  Why yes it is.  The way I look at it is this:  divorce (unfortunately) affects a lot of people in a lot of different walks of life, including those who work in the food & fiber industry and folks who live here in my own backyard.  Divorces can be quite harmful for the family farm or agri-business (which is why I am a proponent of prenuptial agreements for prudent succession planning).  It is, however, a reality that many people have to deal with.  I’m not an advocate of divorce nor do I ever want my readers to be believe that a divorce is a quick and easy process.  Even “no fault” divorces can be long and complex depending on the contested issues.  I wish all of my readers a long and happy marriage.  But if the day comes when you are better on your own, I urge my readers to seek competent counsel licensed in your jurisdiction.

Happy Friday!  Last week, I stumbled across Rusty Rumley’s powerpoint presentation on “Agricultural Contracts and the Leasing of Land.”  Rusty does a great job giving an overview of the building blocks.  He’s a great teacher — he was one of my instructors in this agriculture law course last year– and I suggest looking at his presentation along with other useful information from the National Agriculture Law Center.  In his presentation, Rusty lays the groundwork in farm leases by briefly discussing contract formation, basic vocabulary, and types of leases including cash rent leases, crop-share leases, and hybrid leases.

In summary, Rusty describes these three types of leases as follows:

Cash-Rent Lease:  This is where the tenant usually pays a fixed dollar amount in rent (either on a per acre or whole farm basis).  These types of leases may be modified depending on crop yield (i.e., increase in good years and decrease in bad years).  In this scenario, the landlord is not as involved in crop production giving the tenant more autonomy.  However, as a caveat, because the landlord is not “actively engaged in farming” he/she may not be able to participate in some federal programs.  Furthermore, the income is not subject to self employment tax and is not considered to be earned income for the purposes of determining how social security may be modified if the farmer has previously retired.

Crop-Share Lease: Typically, in these arrangements, the landlord will share input costs (including but not limited to seed, fertilizer, fuel) while the tenant provides all of the labor and remaining input costs.  Once harvested, proceeds will be divided according to the agreement (normally ranges from 25/75 to 50/50).  In this scenario, the farmers both share the risk with the other person and the landlord will typically satisfy the “actively engaged in farming” requirement of federal programs.  The downside (or upside – depending on your view) for the tenant is that he/she loses autonomy because the landlord is involved in the decisions of the operation.  Sharply different than the cash rent lease, rental income will be subject to self employment taxes and may lower the landlord-farmer’s social security check if he/she is retired.

Hybrid Leases: Want the best of both?  It’s possible for your attorney to draft an agreement between the farmers where the landlord will receive a minimum fixed rent payment while sharing in some of the profits, losses, and decision-making.  It’s important to memorialize the rights and responsibilities of each party in this agreement.

Rusty also points out a few major issues that should be considered including soil/water quality, maintenance of fixed assets, uses (or prohibitions) on the real property including allowed/prohibited farming practices, use of farm equipment and facilities (e.g., barns, corrals), termination of the lease, death, assignment/subleasing, improvements on the land (e.g., building fence), reservation of rights for hunting/fishing/camping, and remaining unharvested crops at the end of the lease.

In close, Rusty notes that more information on farm leases (including forms) may be found from the University of Illinois – Farmdoc and Iowa State Extension.  I would also like to add that helpful information can be found here and here.

As a final note, agricultural landlord-tenant and contract law are state law issues and can vary somewhat from state to state.  I highly recommend seeking counsel from an attorney licensed in your jurisdiction.  Yes, I realize that I am an attorney and do this for a living … and I also  realize that the landlord-tenant relationships within the agriculture industry are oftentimes between family members and friends.  However, it is nonetheless important to memorialize the terms of the agreement to help ensure that both parties clearly understand the terms.  This helps prevent a dispute rooted in miscommunication that could strain a close business relationship.

Okay, so it’s not the most exciting New Year’s Resolution but it may be a whole lot more doable than dropping 30 pounds in 2012.  On page 5 of this month’s Grassroots newspaper by New York Farm Bureau (“NYFB”) includes a nice submission by A. Edward Staehr of NY FarmNet about coping with a disaster (including grief counseling, recreating lost records, stress management, cash flow planning, and debt restructuring).  I highly recommend FarmNet’s consultants:  they are well qualified and really understand the agriculture industry/culture.

However, there is a lot to be said for planning for the disaster beforehand.  For example, when is the last time you revisited your insurance policies (e.g., crop insurance, livestock insurance, health insurance, life insurance, disability insurance, etc.)?  Do you have these original documents in a safety deposit box?  Do you have your estate planning documents in order (e.g., Power of Attorney, Health Proxy, Living Will, Last Will and Testament, Living Revocable Trust)?  Is a succession plan in place in case the current management of a farm or agri-business is unable to continue managing the operation (death, disability, or illness)?  Do you have electronic copies of important far records?  Does your family have your in-case-of-emergency information (including passwords)?  Are your business organizational documents in order (e.g., LLC Operating Agreement, Partnership Agreement)?  Do you have enough cash in your emergency fund?

“Disasters” can come in many forms.  It could be a loss of a loved one, an unexpected law suit or family dispute, or an Act of God.  Make 2012 the year when you are prepared for the worst.  It may make you less stressed about the future.  And then maybe you will be able to lose that extra 30 pounds afterall…

I saw "How to Succeed in Business Without Really Trying" on Broadway last spring and recommend it to anyone visiting NYC.

The National Agriculture Law Center has reported that approximately 90% of agricultural operations do not survive the transition to the next generation.  I have to say- that statistic is a bit alarming.  The primary reason for this is poor succession planning.  Estate planning is just one part of workable succession plan.  Estate planning focuses on asset distribution while succession planning delves into the continuation of the family business to the next generation. Succession planning requires a farm or ranch family to really look at its business plan and determine a workable transition.

Here are some of the issues a family should consider:

Goals/Concerns. The first step in developing a feasible succession plan is to consider what the primarily goals and concerns are for the agri-business.  Perhaps the major goal is to avoid estate/death tax.  Or perhaps it is to make sure that all the children are treated equally.  It is important for a family to first think about their major goals and concerns when passing down the family business to the next generation.

Management. If a family business will successfully continue into the next generation, it is especially important that families build the management skills of the younger generation.  A family should use every possible opportunity to strengthen the skills of the potential successors by getting them involved in the day-to-day management decisions and the business aspect of the farm or ranch including but not limited to finances, legal decisions, human resources, technology and marketing.  Along those same lines, a family should consider a phased retirement program gradually reducing the management responsibility of the older generation.

Power & Personality Dynamics.  When analyzing various succession options, a family should consider possible power struggles and personality dynamics.  “Power” can come in business shares, (perceived) success, skills, education, and even popularity –either within the family unit or in the community.  Additionally, families must consider the personality dynamics within the family unit.  To illustrate, one should consider whether particular family members can work together to co-manage a family business.

Maneuvering Through Unexpected “Hiccups.” You know the saying –“I plan.  God Laughs.” (ain’t that the truth…).  Life rarely goes “as planned” and a quality succession plan needs to assist a farm or ranch family in surviving these “hiccups” in life.  Examples may include premature retirement/death, divorce, lawsuits, or a breakdown in a relationship.  Can your family farm/ranch survive these hiccups?

Consider the Fears of Minority Shareholders. A family should consider a proper exit strategy for the minority shareholders so they do not feel they are locked into the family business.  Additionally, a family should also consider giving them a right of first refusal in percentage interest.  Finally, a farm/ranch should consider getting the business appraised so that minority shareholders feel like they are receiving a fair price for their ownership.

Looking for more information?  I recently read this book regarding estate and succession planning by Neil E. Harl and highly recommend it.  The National Agriculture Law Center also has a wealth of information here.

On a final note, proper communication is the key among farm and ranch families.  Without open and honest communication, a family business cannot survive.  I recommend having an annual conversation about succession planning.  Like I said last year,holidays are a great time to talk about these issues because most of the family members will be home.  Good luck and Happy Holidays!

I’m excited for my new webinar series titled “Fridays with Cari.”  I will be discussing a variety of agriculture issues with my Friday webinar series ranging from livestock animal cruelty law to estate planning.  I believe that legal information should be affordable for everyone in the food and agriculture industry and I hope that my webinars will be educational to my attendees.

All of the webinars are on Fridays at 2pm ET.  I’m planning on doing the following webinars this fall/winter and would appreciate if my readers would share this information to those that may be interested:

1.  Overview of New York Livestock Animal Cruelty Law:  Today I will give an overview of livestock animal cruelty law in New York and discuss the law of search and seizure of livestock.

2.  Twitter 101:  Tweeting for the Food and Agriculture Industry:  Are you new to Twitter or thinking about joining?  Next Friday I will give the Twitter ABC’s and discussing everything from setting up a profile, using hashtags, and third party applications such as Tweetdeck and HootSuite.

3.  Embryo Transfer Contracts for the Livestock Industry:  On November 18th, I will be giving an overview of contracts dealing with embryo transfers in the horse and livestock industry.

4.  Pre-Nuptial and Post-Nuptial Agreements for the Agriculture Community:  Whether you are already married or recently engaged, on December 2nd I will give an overview on why farm/ranch families should think about whether pre- or post- nuptial agreements are for them.

5.  Overview of Estate and Succession Planning for the Agriculture Community:  This is a topic that I am extremely passionate about and hope many of my readers will sign up for this particular webinar.  On December 16th (entering the holiday season), I will give an overview on estate and succession planning for the ag community.

6.  New Year, New Resolution – Putting Livestock Sales Contracts in Writing:  I’m going discuss livestock sales contracts to bring in the New Year on January 6th.  I will give an overview of contract law and list suggested provisions that may be included in the livestock sales contract.

7.  New Year, New Resolution – General Partnership Agreements for the Food & Agriculture Community:   A general partnership is formed with more than one person enters an agreement to go into business together and share profits.  But what does that “agreement” entail?  The food and agriculture industry should think about putting general partnership agreements in writing.  On January 13th, I will give an overview of partnership law and suggest language that should be included in the general partnership agreement.

8.  New Year, New Resolution – Legal Issues Pertaining to NY Start-Up Businesses:  Are you considering starting a business in New York?  On January 27th, I will give an overview of legal issues that New York start-up businesses should consider including trademark law, business organizations, and business plans.

9.  Legal Issues Pertaining to Livestock Photographers:  Livestock photography law?  Huh?  Yes, that’s right.  On February 10th, I will discuss applicable laws including business formations, trademark law, and copyright law.

10.  Getting Divorced in New York:  An Overview of the Process:  Are you considering getting divorced in New York State?  I will discuss court procedures, stages in litigation, grounds for divorce including “no fault” divorce, separation agreements, child support, temporary/durational spousal maintenance, forensic accounting, and Alternative Dispute Resolution (e.g., mediation and collaborative divorce).

You can register for the webinar by visiting the Events Page.  I have received several emails inquiring whether the webinars will be recorded and sold at a later date.  Right now, I am planning on rerunning the webinars at a later date so if you miss the first one you can attend it in the future.  However, I am considering recording the webinars so please stay tuned for more details.

Participation in the webinars will be completely confidential.  I am very aware that some of the issues – particularly the webinars dealing with pre/post-nuptial agreements and divorce- are extremely sensitive topics.  Your identity will not be disclosed to the other participants.

It is important to note that the webinars are for informational purposes only and are not designed to give legal advice.  There will be no attorney-client privilege for questions asked during the webinar.  If you specific legal questions that need addressed, you are encouraged to speak directly to an attorney licensed in your jurisdiction.

Keep your family informed so they know how to properly handle a crisis.

Rincker Law, PLLC provides clients with an estate planning binder so clients can keep photocopies of their Last Will and Testament, Power of Attorney, Health Proxy, Trusts, and information regarding assets.  I also recommend that clients complete this information sheet and include it in the estate planning binder.  Furthermore, I also think it is a good idea to complete the “In Case of An Emergency” Sheet and distribute it to individuals that would need it in the event of a family crisis.

I really enjoyed reading the article by Don Tyler titled “Working with Family — Hiring (and Firing) Family Members in this month’s Feedlot magazine (pages 36, 38).  It reminded me of the unique challenges that family businesses must face — whether it is a family farm/ranch or any other type of business.  Intra-family dynamics can seriously affect the day-to-day operations of a family business and can impact hiring/firing decisions.   It also reminded me of the blurry line between independent contractors, employees and general partners in family businesses (I will delve into this topic in a different post).

I suggest reading Mr. Tyler’s article regarding hiring and firing family members.  I also suggest seeking counsel on employment law issues from an attorney licensed in your jurisdiction to obtain advice specifically tailored to your situation.  These types of issues also overlap with estate/succession planning for a farm or agri-business.

As an (slightly unrelated) aside, here is an interesting Fact Sheet from the U.S. Department of Agriculture (“USDA”) Economic Research Service (“ERS”) regarding the economics of U.S. family farms.

As I noted in this previous post, I am the new Chair of the American Bar Association (“ABA”), General Practice, Solo and Small Firm’s Division, Agriculture Law Committee.  You can join the Committee and the Discussion List here.  I have restructured the subcommittees as follows:

1. Ag ADR: mediation, arbitration

2. Ag Estate/Succession Planning, Family Law, and Taxation: estate planning,succession planning, probate, tax law, pet trusts, prenuptial/postnuptial agreements, divorces, same-sex marriage

3. Ag Environmental Law & Water Law: water, air, hazardous materials, climate change, conservation, pesticides, herbicides, insecticides, fungicides, endangered species, biodiversity, livestock grazing, fertilizers

4. Ag Policy: Farm Bill, legislative/lobbying services, domestic food security/insecurity, rural development, subsidies, federal budget, agriculture education, minorities in agriculture

5. Agri-business Law: agriculture lending/finance, business structures/formations, not-for-profit law, secured transactions, commercial litigation, ag cooperatives, ag sales, ag bankruptcy (Chapter 12)

6. Food/Ag Employment & Labor Law: employment law, wage & hour, child labor law

7. Food/Ag Grant Writing: state and federal level

8. Food/Ag Insurance: crop insurance, livestock insurance, environmental insurance, disaster insurance

9. Food/Ag Intellectual Property: copyrights, trademarks, patents

10. Food/Ag Property & Land Use Law: real estate transactions, eminent domain, easements, grain storage, livestock grazing permits, landlord-tenant law, foreclosure, agri-tourism/agri-tainment, energy law

11. Food Law & Policy: food safety, food labeling, food permits, food product liability, nutrition programs

12. International Food/Ag Law & Policy: international trade, customs, immigration, international business transactions, United Nations, food security/insecurity in lesser developed nations, comparative food/ag law

13. Production Agriculture & Aquaculture: equine law, biotechnology, Right to Farm, livestock animal cruelty, livestock trespass, check-off programs, local agriculture, urban agriculture, organic agriculture, specialty crops, biosecurity, livestock space/confinement, fiber production, leather

As you can see from the above list, the subcommittees touch upon nearly every area of agriculture law.  I am very excited about the future of the Committee.

Please email me at cari@rinckerlaw.com if you are interested in joining (or chairing) any of the above subcommittees.  You must be a paid member of the ABA General Practice, Solo, and Small Firm Division in order to join the Agriculture Law Committee or any of the above subcommittees.

I took this photo of a buffalo herd while roadtripping through South Dakota with my dog, Taylor. Beautiful countryside. (c) 2011

Seems like just yesterday I was driving across South Dakota with my dog Taylor before starting Rincker Law, PLLC and this blog.  It’s been a great ride so far.  Big thank you to my friends, family, colleagues, contract attorneys/legal assistants, clients and blog readers for all your support.

It’s been a busy year indeed.  Over the last year, I am very thankful to have been honored as a Distinguished Alumni of Lake Land College (“LLC”) (read about my experience at LLC here), selected for the American Cattlewomen (“ANCW”) National Beef Speakers Bureau (“NBSB”), elected President of New York Agri-Women (“NYAW”), elected as the Secretary/Treasurer of the National Cattlemen’s Beef Association (“NCBA”) Young Producer’s Council (“YPC”), and profiled in the ABA Journal.  My work on the YPC social media guides has caught industry attention (we are currently working on a LinkedIn Guide for cattle producers).

I have had a busy spring with speaking engagements including the New Jersey State Bar Association (“NJSBA”) Annual Meeting, New York Farm Bureau (“NYFB” Animal Welfare Symposium, and NYFB Young Farmers & Ranchers (YF&R) Leadership Conference.  Additionally, I am also in the middle of a family/matrimonial law seminar series for mental health professionals.  I hope to have webinars available for the agriculture industry this fall/winter.

On the technology front, I have become an Apple-using attorney (“MacLawyer”) now using an iMac, iPhone, iPad (great for the courtroom), and Macbook Pro.  Even though I have found a few glitches in my system transfer, I have been very happy with my Apple products and customer service.  I have also entered the world of Skype.  I gave it the college try on my first video blog (hopefully more to come) and have been experimenting with WebEx in the animal & agriculture production law & policy course that I am currently enrolled in.  I am considering using WebEx for a platform with clients, Ag Book Club chats, and webinars.

And- I almost forgot- within the last year I became NCBA Beef Quality Assurance (“BQA”) certified.

In case you missed it, here are a few of my favorite blogs over the last year:

1.  I recently wrote an article on embryo transfer contracts for the livestock industry.  I feel very strongly that the agriculture industry needs a shift in business culture putting agreements in writing.  Embryo transfers/flushes are no exception.

2.  Does your sale abide by the “suggested sale terms” from your livestock breed association?  Make sure there is a meeting of the minds and put the terms of the agreement in writing.  As a caveat, pay attention to silent “suggested sale terms” (e.g., semen’s ability to freeze) that may be material.

3.  When is the last time you had fence maintenance on your farm?  This blog delves into a livestock owner’s potential liability with highway accidents.

4.  This post gives an overview of state laws relating to livestock space.  So what is next?

5.  Some folks really enjoyed this post regarding the role of a buyer’s attorney in a real estate closing.

6.  One of my personal favorites – this post memorializes why I think prenuptial agreements are romantic.

7.  I highly suggest seeking counsel before entering into a wind lease.

8.  Dr. Temple Grandin is on a short list of women that I look up to most in the livestock business.

9.  When is the last time you updated your employee handbook?

10.  Are you trying to decide what business structure is best for you?  Read this previous post first.

11. Are you considering getting divorced in New York?  Here is an overview of the new “no fault” divorce law.

12.  Why I am proud to be a member of the agriculture industry.

13.  Knock, knock.  ”Who’s there … and do you have a warrant?”  How New York livestock producers should handle visits from non-police officers.

14.  We are half-way through the 2011 tax year.  Have you thought about charitable deductions?

15.  So what do you think is the most important issue affecting the agriculture industry?

16.  I feel very passionate about succession/estate planning for farm/ranch families.  So when is the last time you had *that* conversation?

17.  Don’t just be thankful on Thanksgiving.  Why are you thankful?

18.  How to find the right attorney for you (Part I and Part II).

19.  Don’t just complain.  You can help change the law.

Thank you to for your loyal readership!  Seems like just yesterday I was celebrating my one-year blogging anniversary.  Looking forward to a fantastic year three.

My grandpa, Leland Rincker, on his farm in Shelbyville, Illinois.

On my flight from Denver back to New York City after the National Cattlemen’s Beef Association (“NCBA”) Annual Convention and Trade Show, I found a great piece in the Shorthorn Country by Patrick Wall, the Director of Genetic Improvement and Eastern Regional Director for the American Shorthorn Association (don’t tell my dad, but I have always loved fuzzy Shorthorn cattle).  The article is found on page 28 of the February 2011 issue titled “The Pedigree of a Stockman.”

In this blog, I wrote about balance of technology and tradition in agriculture.  I think Patrick Wall’s article compliments this post because he notes the values that are so important to the agriculture industry.

“The face of agriculture has certainly changed, but the heart of a stockman never will.”

I really loved how Patrick Wall described the inherit desire to continue the food production business in farm and ranch families across the country and how each of them care so much about what they do.

“My sire, grandsire, and maternal grandsire are or were all stockmen, and I’m certain previous generations were too.  It’s a dominant gene I no doubt inherited, and a major reason I get out of bed each day.  It’s the gene that causes me to lose sleep when a calf dies, but also the one that finds comfort leaning on a gate listening to livestock communicate with their young.”

I'm petting a baby calf at my grandpa's farm

Additionally, Wall commented on how more experienced livestock producers typically take the time to teach younger generations.  This type of instruction is invaluable to help ensure prosperity of the family farm.

“Science and advertising have made the process of raising cattle so complex that we often forget the simple things mastered by our elders.”

The younger generation also has to be sensitive to retiring farmers and ranchers and their desire to stay involved in the family business.

“The stockman I knew never really retired; he just sold his tractors.”

Great piece by Patrick Wall reminding all of us why we love this industry so dearly.