Articles Posted in Mediation

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Decisions to be made on Custody and Parenting Time                                                

Over the years, I have handled a number of cases associated with custody and parenting time (or visitation), particularly throughout Nassau County, Suffolk County, Queens, New York City and nearby areas. In my experience, I have found that often, the process of dealing with custody and visitation can differ widely from one situation to the next, however, a certain collection of considerations and decisions will need to be made in any case. In any legal matter concerning children, if an agreement is not made, the court will be required to consider the situation and decide these issues according to the best interests of the child(ren). Whether the topics are decided upon in a mediation, litigation, collaborative law case or settlement negotiation, the same topics need to be covered.

Legal Custody and Residency

There are two significant areas when it comes to determining child custody that need to be set forth. The first concerns where the children will live. When a child lives with a particular parent, the majority of the time, according to a court order, that parent is said to have residential custody under the law. The second major concept that needs to be defined through a custody order is who has the capacity to make decisions on the behalf of the child. The parent or couple responsible for decision making under court order are regarded as having “legal custody.” Continue reading ›

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I wear different hats now in my career since I am a litigator, certified mediator, certified collaborative law attorney and a lawyer negotiator. This blog entry will focus on divorce mediation v. divorce litigation as I do both. Overall, my belief is that the couples that I have worked with in divorce mediation are happier with the process than the people involved in the litigated cases.   I have not given anyone tests to measure their happiness either after the completion of a litigated case or mediation, but this is how I feel.

What makes me say that? It’s the little things and the big things. Most couples that I work with in mediation walk out of the process together. Many of them walk out of each session together. One mediation in particular sticks out in my mind as I saw the couple hug in the parking lot after settling the case and getting in their respective cars. Although the parking lot hugging might be the exception rather than the rule, I don’t think it is such a rare occurrence for mediating couples. And why shouldn’t this be? After all this couple, at one time in their lives, were probably closer together with each other than they were with any other person in the world. Yes, the relationship did not work for whatever reason. They fell out of love, grew apart or something else, but at one time they shared something special. Why shouldn’t they part as friends or at least without bad feelings? Continue reading ›

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Let me start this blog by stating that this blog entry is not to be considered tax advice. Everyone is advised to seek the advice of an appropriate tax professional, such as a CPA, regarding tax questions. This blog, however, is intended to identify some issues and language to be considered when trying to address the tax issues that commonly present in divorces. These matters should be considered when planning, drafting and negotiating a divorce settlement with your divorce lawyer or mediator.

Each case and agreement is different, so the following is intended to be illustrative only. Tax filing status is a big consideration when divorcing. Some common language in a settlement agreement might provide that the husband and wife can file taxes jointly or separately if they so choose for any tax year that they are still married at some juncture during the year. In that event any tax refunds received are often designated by the agreement as the Separate Property of the recipient spouse. The settlement can also state that if both sides agree to filing jointly, they may do so only so long as they are able under the tax laws. In what proportion any refunds or taxes owed should be discussed such as whether everything (refunds or amounts due) is going to be shared equally or in proportion to the respective contributions towards taxes or responsibility for any shortfall. Continue reading ›

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The old law in New York for temporary or pendente lite (Latin for while the case is pending) maintenance, prior to the 2010 revisions, was that temporary maintenance was supposed to “tide over” the spouse with less income (the “non-monied” spouse) while the divorce case was ongoing.  There was no formula for the calculation, rather it was to be based on subjective criteria which was outlined in the statute.  The 2010 law that is in effect now, however, contains a guideline formula, much like we have in place for child support (although the formulas and amounts differ from child support) to give guidance as to what the presumptively correct amount of temporary maintenance that a court should order.  An amount of temporary maintenance can be agreed upon by the parties in a case with the help of their mediator or lawyers.  Often, however, Judges are called upon to decide the amount, and that is where the statute must be considered.  It is important to note, however, that the temporary maintenance amount is not what is ordered at the conclusion of the divorce.  That maintenance, if there is any, is usually durational in nature and does not have a specific formula to guide in its determination.

The temporary maintenance law is in Domestic Relations Law Section 236(B)(5-a).  Each sides gross income, as reported in the most recent federal tax returns, after the deduction of FICA and any applicable local taxes (city only).  The lesser of two calculations is supposed to be the guideline amount of temporary maintenance.  Initially, a cap of of $543,000.00 (this is the cap as of the current date) of the payor’s income is to be used in determining the calculations.  The first calculation involves taking the difference between thirty percent of the income of the monied spouse and 20% of the non-monied spouse.  The next calculation involves taking forty percent of the combined parental income minus the payee’s income (non-monied spouse’s).  The lower number from these two calculations is the guideline temporary maintenance amount. Continue reading ›

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Do divorce filings increase in the New Year? As a family law attorney, I see a general decrease in actual court appearances and new case filings during the latter half of December, but at the same time there are a lot of inquiries and planning for actions that people intend to take in the New Year. What could account for the lull in December and the increase in the New Year? Some of the reasons are obvious such as, that are holiday parties and vacations being taken by lawyers, judges, and the rest of the world at the end of the year. Because of the holidays, there are less court appearances scheduled. Also, a lot of people are reluctant to begin divorce proceedings or their family law cases during the holidays. It makes sense to try to keep the peace until the holidays are over. Not many people want to distract themselves with a battle at the end of December. People tend to have a lot of family interactions at the end of the year which might explain the family law case slow down.

What happens then in the New Year? I think the cases that normally would have been started had it not been holiday season just get delayed until the New Year. I believe that many could be as a result of New Year’s resolutions. Some people decide that they will not tolerate things as they have been for another year. Also, sometimes the holiday seasons can make family difficulties amplified. Continue reading ›

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My mission is to help the wronged, unhappy or injured get what is fair and right.  This is the initial draft of my “Why” as I discovered yesterday when doing an exercise at the annual training of the New York Association of Collaborative Professionals.  The “Why” can be tweaked and tested, but this is was what I came up with after working with others to search for it in the exercise.  The exercise to find our Why was as suggested by Simon Sinek’s method through our trainer at the meeting.  My understanding of what the Why is would be that which we can not help but doing because it is our natural inclination.  On reflection, I get to do this as a matrimonial,  family law lawyer and mediator on a daily basis.  As a mediator, it is not my role to advocate for either side of the issue, but rather to facilitate the coming together to resolve their issues.  When I look at the settlements as crafted between the parties from my mediated cases, I find that they are fair balanced agreements.  It is my job as a review attorney to identify for my clients the fairness of the agreements that have been negotiated with a different mediator.

As previously mentioned, I am a big fan of alternative dispute resolution processes such as mediation and collaborative law, but the majority of my cases are and have been in the more traditional route as set up by the court system, which is the adversarial system.  So, a lot of my clients are in battle, and as their lawyer, I fight hard for them.  Since I am an experienced litigator, trained and certified mediator and collaborative law attorney, it allows me to help people with divorce and family law issues no matter what process they choose to use.  It turns out though, that my chosen profession fits the why that I discovered.  Invariably, people with matrimonial and family law issues either feel wronged, unhappy or injured in some way.  It is my job as their lawyer to help them get what is fair and right.

There are many reasons that I recommend mediation or collaborative law over the traditional adversarial route for those that are willing and able to do it.  To name a few of them, the adversarial method tends to foster bad feelings between the parties as the usual modus operandi of everyone involved is to emphasize the good for their side and the bad about the other.  In other words there is mud slinging in litigation.  Just because a relationship has ended, however, does not mean that people need to leave the relationship as enemies.  Two parents are forever connected by their children even if they are no longer romantically involved. Continue reading ›

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Marital assets, and debt, in New York generally are things that are acquired during the marriage that does not fall under the exception of separate property.  Separate property, in general are things that a spouse entered the marriage with that was kept separate throughout the marriage. Property acquired by gifts or inheritance that are kept separate also usually fall under the category of separate property.  Marital assets are broadly defined while separate property is narrowly defined. It is the burden of a party claiming something to be separate property to prove that claim.  In a divorce, separate property needs to be identified, while the marital assets and debt need to be distributed.

Equitable could mean equal or something different when distributing property in a dissolution of a marriage in New York. Equitable means what is fair. Sometimes there are pre or post-nuptial agreements or a separation agreement that already dictate how property should be divided. Usually these agreements are honored but there are circumstances when a court could void them or set them aside. If there are no agreements in place, the parties and their attorneys can agree upon what is equitable. If there is no agreement on what is fair, then equitable distribution becomes the job of the judge.

But isn’t everything just divided in half in a divorce?  Usually that is the case for marital assets and debt, but it is not a foregone conclusion.  Sometimes the split might be that eighty percent of the marital assets go to one spouse with twenty percent to the other.  Sometimes the split is equal after an application of credits to one side before the division.  Some assets are given entirely to one spouse, while others are shared in some way at times. Continue reading ›

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For some litigation works, but many find litigation to be a frustrating process.   Litigation can be a time consuming, expensive, emotionally draining process that is hard on any children of the family.  Some cases settle relatively quickly after one, two or a few court appearances.  Others find though, after being embroiled in a divorce for months, sometimes literally years (depending on the complexity and the location of the court), without a definitive end date in sight, that they are weary from the court process.  As a Long Island Divorce Lawyer, mediator and collaborative law attorney, I can definitively say that it will take longer from the start of a divorce case to the end of a trial than a mediation or collaborative law case.

Why might it take so long?  Due to the volume of divorces filed in areas like Nassau County, Long Island and Queens, New York City, many cases can not be settled right away and need the courts to either decide the cases or help them settle.  The amount of judges and judicial hearing officers that can deal with the cases is simply not enough to be able to resolve the cases in the amount of time that the parties would like.  A lot of people going through a divorce are under the misimpression that the first time they go to court they will stand at the microphone in front of the judge and have their turn to tell the story.  The belief is that then the judge will rule upon their case and the divorce will be over.  I think we have television shows like the People’s Court, Divorce Court, and Judge Judy to thank for this misperception.

Most of the time, the first time people go to court in a New York divorce it is for a preliminary conference.   At a preliminary conference a schedule for the case is made including when discovery demands need to be served and responded to, when examinations before trial should take place (depositions), and when a case should be ready for trial among other things.  The ready for trial date is usually six months to a year after the preliminary conference.  Routinely, however, the dates set forth in the schedule in retrospect were hopeful dates. In most cases, every step of the way takes longer than was anticipated in the schedule. Even if the lawyers and parties met the initial deadlines set forth in the case, the court’s calendar needs to be able to accommodate a trial. Trials can take many days that might not be consecutive.  At times a trial begins and then is continued at a later date weeks or months later.  Accordingly, it might take months to complete the trial and get a decision out of the court.  Also, the decision, might not be what either side wants.  A common example of this is with a parenting time schedule.  The court usually will make a “cookie cutter” type parenting time schedule, such as every other weekend to the non-custodial parent that may or may not fit either side’s schedule. Continue reading ›

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Whether a case is settled before it is filed, after some litigation, or a Judge decided it, at the conclusion of the case a number of documents must be prepared, signed and filed with the court in order for the divorce to be finalized.  These same documents are required throughout the state and regardless of the method used to decide the case such as mediation, collaborative law, litigation, or settlement negotiations.  Therefore, in my practice as a Long Island Divorce Lawyer, or in my New York City and surrounding area cases, the same forms are used.  The first document that always needs to be filed in a case is called the Summons.  A divorce can be started simply by filing a Summons with Notice alone, in the local Supreme Court along with the payment of the filing fee to purchase an index number which is $210.00.  A Summons is filed along with the Complaint, but when a Summons with Notice is filed the Complaint can follow at a later time.  Both a Summons and a Summons with Notice dictate the time period for the spouse to appear in the case by serving a Notice of Appearance.  A Summons with Notice must also contain the grounds for the divorce, be it the “No-Fault” or otherwise, along with a description of the ancillary relief that is requested such as child support, maintenance and equitable distribution of marital assets.

The Notice of Automatic Orders and Notice Concerning Health Care Coverage need to be attached to the Summonses. The Automatic Orders essentially provide that the status quo be maintained until written agreements or court orders otherwise are made.  For example, retirement accounts can not be drawn upon and insurance that is in place must be maintained to name some of the orders.  The Notice Concerning Health Care Coverage informs that upon the entry of the divorce that spouses may not be able to stay on the health insurance of their spouse.  COBRA benefits are usually available for a period of time, however this comes at a cost.

A Verified Complaint needs to be filed and served. The Complaint sets forth if the residency requirements are met, the children of the marriage (if any), health insurance plans, grounds, if the ceremony was religious or civil, and the relief sought again.  The Verification sets forth that the Plaintiff has read the complaint and that it is true and is signed before a notary public.  If the parties were married in a religious ceremony, an additional document called the Sworn Statement of Removal of Barriers to Remarriage must be included in the filing package.  Each party signs these before a notary to set forth that they have or will take any necessary steps to make sure the other side can get remarried in their religion. Continue reading ›

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I am a big fan of alternative dispute resolution such as mediation and collaborative law. Lawyers in New York are guided by the Code of Professional Responsibility. When I am in my role as a mediator, however, I am not acting as a lawyer at that time. Although I am both a matrimonial / family law attorney and also a mediator, mediators do not have to be lawyers. To guide mediators, in 2005 The American Bar Association and the American Arbitration adopted standards of conduct. The purpose of this blog entry is to summarize these standards and how they might apply to a New York Divorce Mediation.

The first standard is the principle of self determination. What this means to is that the decisions in mediation are to be made by the parties to the case, not the mediator. The mediator’s role is to guide and educate about the different options to settle the issues. For example, the mediator can explain different options for child custody like shared custody, joint legal custody, sole custody and joint custody with spheres of influence. Please click around my website or other blog entries for more information about any of these topics.

The second standard is that the mediator should have the qualifications to be able to properly handle the mediation be it from education, experience or training. In the context of divorce and family law this means: having matrimonial and family law knowledge; understanding how conflict impacts families and children; mediation process training as well as experience; and the ability to see how diversity and backgrounds impact people and situations. Mediators should be able to answer questions and provide information about their qualifications to potential mediation participants. Continue reading ›

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