Kelly Frawley is a rapidly rising star within the New York office of Kasowitz Benson Torres. She attends to a unique niche practice that incorporates elements of commercial advocacy and matrimonial and family law, bringing a distinct generational and cultural perspective to this practice. Kelly speaks to Benchmark editor Michael Rafalowich for this year's edition of the 40 and Under Hotlist.
Can you share with our readers a thorough description of your practice?
For over a decade, I have been focusing on matrimonial law and family law. Most people think matrimonial law only covers divorce cases, but it also involves complex financial matters ranging from the division of assets and liabilities to how expenses will be paid during the pendency of the divorce and after it has been finalized. I also regularly handle custodial issues – how arrangements will be made for children during and after the divorce, where they will live, when the parents will be able to spend time with them and how decisions relating to the children will be made.
Additionally, I work with many clients interested in having prenuptial agreements, which may or may not be necessary depending on the protections provided by New York State law. We also prepare postnuptial agreements, which are often useful when a couple is in a marriage with uncertainty surrounding a particular key issue, such as how much one spouse has been spending or how a spouse has been maintaining assets, or where circumstances change, such as when one spouse leaves the work force to raise children, or starts a business venture.
Typically, couples enter a relationship with the best of intentions, but don't always think ahead to the "what ifs". That's where I can be extremely helpful – I can ensure that both parties are protected and understand the consequences of certain decisions, no matter what happens later in the relationship.
I also advise on relationships outside of marriage, such as two unmarried partners who may or may not have lived together and have a child. These partners might need a written agreement about where the child will live, what the parenting time schedule will be, and who will pay the expenses for the child. In some cases, where there may be questions of paternity, we work with our clients through the DNA testing process, and advise on the impact of financial obligations and parenting time once paternity has been established. You might be surprised that we also advise parties on these same issues when paternity has not been established.
What are some of the characteristics counsel must possess and what approach does counsel have to take on matrimonial and family law matters, where clients are likely to be emotionally charged and vulnerable?
There is tremendous value added to a practice when you have good relations with opposing counsel. In fact, I can rarely think of an instance in this area of practice where taking the "pit bull" approach is effective. Certainly, you need to be willing to show teeth if it becomes obvious that there are no reasonable steps being taken by the other side towards a settlement – but banging on the table rarely works for anyone. You also want to maintain a positive relationship with the court, including showing the highest level of courtesy and professionalism in the courtroom. In my experience, judges certainly do not want to hear yelling or fighting between counsel.
While it is my role to advise them, ultimately, my clients make the decisions. If the client wants to take a more aggressive position than he or she believes I have been taking, I spend time discussing with them the pros and cons of such an approach, given that it can often result in higher legal fees and delaying a resolution. I strongly believe that, as advisors with significant experience, we need to be firm, but we also must realize when it is time to pivot and reconsider positions we have taken, particularly if new information comes to light.
Commercial litigation has historically been notorious for being slow-moving, with cases routinely grinding on for years. What's the average timeline for resolving a case in your field?
Because we frequently deal with families that include children, these cases rarely extend for as long as a commercial litigation. The courts deliberately pressure parties to resolve issues promptly, especially when children are involved, because reaching and moving past the divorce process is in the best interest of the children. Generally, if we don't have a resolution on custody by the second or third court appearance, the court will often appoint a mental health professional to evaluate the family and may also appoint an attorney for the children. To the extent possible, we try to resolve matters without the need for additional outside professionals – they can be costly and sometimes cause additional conflict in already high-conflict families.
Another distinction from commercial litigation is that in the cases we handle, there is significantly less discovery, and significant effort to minimize motion practice. In the end though, the timeline depends on the willingness of opposing counsel to reach a resolution, the reasonableness of the parties, and the complexity of the assets. Still, it is rare for a matrimonial dispute to exceed two years.
In this practice, I'm assuming that, although there may be less discovery, the discovery that is present can consist of fairly sensitive information. Does this ever bring privacy issues into question?
Absolutely. In one recent case, the parties' son's iPad, which was not password-protected, had information stored on the cloud by the father, including images of very expensive watches and cars, and elaborate vacations he had taken despite claiming his earnings had significantly dipped. We discovered this information early in the case, and it demonstrated that our discovery needed to be more extensive than the standard due diligence discovery advocated for by the husband's counsel. Family law attorneys need to be savvy about what information is accessible on the cloud and hard drives, and how to lawfully access it as part of the discovery process.
However, discovery results are usually less glamorous than photos of one parent's secret trip to Tahiti. More typically, we exchange sworn statements of net worth and financial documents (e.g., income tax returns, bank statements), and conduct depositions relating to the financial issues of the parties.
Do you think that your age and your gender allows you a greater rapport with a generation that is increasingly focused on equality and also has depressingly high divorce rate statistics?
I have represented clients ranging in age from their twenties to their eighties! Our clients are nearly evenly split between the genders, and I think there's a tremendous benefit to my practice in representing both women and men. I like getting both perspectives and it adds to my credibility with the client. I have the ability to allay the concerns of a husband who believes that his wife is intentionally delaying the matter by taking longer to respond to a settlement proposal than it took him to respond. Because I have worked with many women, I am familiar with the wife's perspective and understand that the issues in a settlement proposal might not be as simple for her if she has less experience with the family's financial matters. I can also explain that the results may have a longer lasting impact for her than they do for him, particularly if she is relying on spousal or child support to pay expenses. At the same time, I can be direct with women about how their actions are perceived, while being sensitive to their concerns, and defend a woman's choice to work in the home raising children rather than outside the home in the work force.
The biggest asset I offer to clients is my skillset. I bring a very well-rounded approach, in part gained from the time I spent prosecuting felonies at the New York County District Attorney's Office, which brought me tremendous perspective about the judicial process. I'm also very approachable, and have a very hands-on style, which I think is crucial in these matters that are so personal for my clients. I handle almost all aspects of my clients' matters myself. I attend all court appearances, argue the motions, and conduct the depositions and trials. This keeps costs manageable and is very efficient for my clients. It also enables me to know virtually every detail, from whether or not dad was the one who made dinner for the children or if mom frequently hired a babysitter rather than tending to the children herself. You never know what detail will be raised in court, so I am as prepared as possible.
I also bring a very personal touch to my practice, which is essential at what is a very emotional and frightening time for all parties involved.
Kelly A. Frawley is a partner at Kasowitz Benson Torres LLP. Her practice focuses on matrimonial and family law. She handles complex financial and custodial matters, and is a trusted advisor to her clients in disputes involving divorce, equitable distribution, custody, child and spousal support, paternity, and other areas of matrimonial and family law before New York State trial courts.