Articles Posted in Mediation

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Separation agreements, pre-nuptial agreements, post-nuptial agreements, and stipulations of settlement may largely contain the same contents, and serve a lot of the same purposes, but vary in the timing that they are made. One purpose is invariably to define the respective rights of each marital partner in the event of a dissolution of the marital partnership. As a divorce mediator, New York City and  Long Island divorce lawyer, marital agreements are a big part of my practice.

Pre-nuptial agreements are made prior to the marriage.  Post-nuptial agreements are made after the parties are already married.  Separation agreements are a form of a post-nuptial agreements but have the added element that the husband and wife may become legally separated after the execution of the document.  Stipulations of settlement of a divorce are made after a divorce case is filed to settle the issues necessary to be decided to get the parties divorced.

Pre-nuptial agreements can help couples enter into a marriage with the knowledge that  their rights have been defined in the unfortunate event that it doesn’t work out.  As a mediator, matrimonial and family law attorney, pre-nuptial agreements are an opportunity to work with a party or couples in love that could stay married forever.  The stress of the financial uncertainty that could result from a divorce can be removed.  Pre-nuptial agreements commonly identify how the property that the parties have already, going into the marriage, will be split up or retained as separate property, in case of divorce.  It can provide how much maintenance (alimony), if any, there will be upon a divorce.  Child custody, parenting time and child support matters become trickier to try to outline in a pre-nuptial agreement since a court always has discretion when it comes to what the custody and parenting time arrangements will be with a child.  Also, the dissolution of a marriage would in most instances qualify as a substantial change of circumstances to look at what custody and parenting time arrangements are, despite an earlier agreement, in the best interests of the children moving forward.  Still, the agreement could be used as a starting point on these issues and might prove influential if there is a dispute about the determination of the matter in the future. Continue reading ›

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After agreeing upon the terms of a settlement in a divorce mediation, the drafting attorney usually will put together the settlement agreement. It might be in the form of a separation agreement or a stipulation of settlement. Since I am a New York City area, Suffolk County and Nassau County divorce lawyer and divorce mediator, I have always been the drafting attorney on my mediated cases. It is recommended that each party take that settlement agreement and have it reviewed with their own attorneys. The purpose of the review attorneys is to make sure that each party understands their rights, understands what they are signing and that what they agreed upon is in fact in the agreement. This is the person that could give them the legal advice they need.

Everyone that goes through alternative dispute resolution has questions. Would I do better if I went to court? Is this a fair agreement? People that go through collaborative law or litigated cases receive the advice and representation of an attorney throughout the process. Collaborative law, for those, who have not heard about it, is another non-adversarial way to resolve matrimonial and family law cases. I like to think of collaborative law as a method somewhere in between mediation and litigation however it is non-adversarial, like mediation. Feel free to click around my blog, website or call to talk about collaborative law. This blog entry is geared more so about divorce mediation.

The divorce mediator’s role is as a neutral to help people settle their differences and formulate an agreement to move on with their lives. When I shift gears into my role as drafting attorney my job is to ensure that the understanding that the parties made is put into proper form to be a legally binding agreement that settles the case. Usually, in the case of a divorce, that means to settle all of the issues that a Judge would have to decide had the case proceeded to litigation and a trial. In this blog I will go through topics that I include in my settlement agreements when acting as a drafting attorney. For each topic I will touch upon some of the considerations that a review attorney, which is sometimes my role, can address with their clients to make sure their client is armed with the legal information they would need to making a knowing, intelligent, and voluntary agreement for their divorce or other family law issue that is mediated. Continue reading ›

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An uncontested divorce means that every possible issue necessary to settle the divorce is agreed upon.  There are different processes available to settle all the issues.  Kitchen table discussions between couples is always available, divorce mediation, collaborative law, four way meetings with counsel and clients, and attorney negotiations are some of the more common.   If there is any issue that is not resolved, such as what the child support payments are going to be, or how the equity in the marital residence is going to be divided, then the divorce cannot yet be called uncontested.
It does not mean that the case needs to become a contentious battle if it is not at uncontested status as of yet, rather it just means that there are things that still need to be resolved.  Once the issues are resolved the case can become uncontested.  I have been dealing with matrimonial and family law cases all over the New York City area, Nassau County, and Suffolk County for a number of years now.  As a Long Island Divorce Lawyer, many of my cases start as contested only eventually to become uncontested.  Some cases, however, are not settled and stay contested.  That is how I gained my litigation experience.  Most of my cases that I handle as a divorce mediator end up being uncontested after spending a little time working together.
The first topic that needs to be dealt with is grounds.  One of the seven grounds must be selected as applicable and not disputed to meet this first hurdle.  The most commonly selected grounds since the 2010 enactment of the no fault divorce in New York is in fact the no fault grounds, Domestic Relations Law Section 170(7), the irretrievable breakdown of the marriage.  It must be agreed that one of the parties will be granted the divorce based on the selected grounds.  Under the No-Fault law, it’s nobody’s fault, the marriage just did not work or was irretrievably broken for at least six months.  One of the other grounds could be selected as well which are:   Domestic Relations Law Section 170(1) cruel and inhuman treatment; Domestic Relations Law Section 170(2) abandonment; Domestic Relations Law Section 170(3) imprisonment; Domestic Relations Law Section 170(4) adultery; Domestic Relations Law Section 170(5) living separate and apart pursuant to a separation judgment or decree; or Domestic Relations Law Section 170(6) living apart pursuant to a separation agreement.  Even if one of these other grounds is selected, the party who is not being granted the divorce does not have to admit the grounds, they can simply neither admit nor deny the grounds.  That’s enough for the grounds issue to be resolved. Continue reading ›

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If your spouse refuses to go to divorce mediation or collaborative law, then the question is already answered since mediation and collaborative law are both voluntary processes.  You still can get a divorce, but the process will be under the traditional adversarial litigation model.  Some cases under the traditional approach can be settled right away as an uncontested matter while others might drag on for years with a heavy emotional and financial toll. As a Long Island Divorce Mediation Lawyer, litigator, and Collaborative Divorce Attorney, I am familiar will all of these models.  Divorce mediation and collaborative law are considered alternative dispute resolution methods.  I am a big fan of either of these, in place of litigation, for the right couples.  This blog will describe the two methods and some of the pros and cons of each.

Some people are purely driven by the fees that are going to be associated with going through the divorce process.  As a general rule, mediation is the less expensive alternative.  Each case is different, and the professionals that work with you on your divorce mediation can have their own billing and payment methods, but I can relay details about fees for a typical divorce mediation that I handle.  While mediating the issues with a divorcing couple I charge my usual hourly rate.  Once a consensus is made I am able to offer hourly or flat rates to be the drafting attorney for the settlement agreement and the uncontested divorce filing to get the divorce finalized and entered.  Collaborative law cases will in most instances be more costly than a mediated case. Usually it will be less costly than a fully litigated case however.  The New York Association of Collaborative Professionals, of which I am a member, is now integrating streamlined protocols into our regular collaborative case procedures which are designed, in part, to help make the process more economical.

Typically,  mediating couples will come to the mediator and go through the process without attorneys present during the mediation sessions.  The mediator does not represent either side so is not there to give either party legal advice.  Couples are encouraged to each consult with their own review attorneys at a minimum after a draft of a settlement agreement is prepared.  Some individuals choose to meet with their own attorneys before mediating or in between mediation sessions.  Not everyone does use the recommendation to have review attorneys but it is advised.  The parties work together with the mediator to resolve all the issues that need to be addressed for the couple, and their children to dissolve the marriage and move on with their lives.  In divorce mediation the parties settle their marital issues together with dignity. Continue reading ›

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The law in New York for the division of marital assets in a divorce is equitable distribution.  Equitable distribution does not necessarily mean equal, although that is usually the starting point, it means what is fair.  The job of your New York City, Long Island or Nassau County Divorce Lawyer is to show what is fair.  New York Domestic Relations Law Section 236 is where the statutory provisions of this law can be found. The parties to a case may have made an agreement during or before the marriage about custody of children, child support, will provisions, maintenance (formerly known as alimony) and determinations of separate property and how marital property is to be divided or distributed which is the subject of this blog entry.  These agreements are commonly called prenuptial, post-nuptial, separations agreements or stipulations of settlement.

If the agreement is in writing, subscribed, acknowledged, or proven with the same formalities necessary to record a deed, the agreement should be honored in a matrimonial proceeding.  Future blog entries will have more details about marital agreements.  Different processes may be used for parties to settle their issues such as mediation, collaborative law, settlement discussions, and negotiations in litigation.  How is the law applied, however, when there is no settlement, prenuptial agreement, separation agreement or post nuptial agreement?

First, the determination of what is separate property and what is marital property must be made. Marital property is broadly defined in New York as property acquired from the date the parties were married to the date of a legal separation (not just physical separation), or the start date of a matrimonial case.  From that broad definition of marital property separate property must be carved out.  It is the burden of the person that is claiming something as separate to properly make that claim.  Separate property includes whatever was already agreed upon in a properly made written agreement. Also, that which someone received before the marriage or by gift from someone besides their spouse or from inheritance is classified as separate property.  Personal injury compensation, too, is listed as separate property.  Increases in value of separate property is also separate, except if the increase in value is due in part to the contributions made by the spouse (this is commonly called sweat equity).  The rest of the property acquired during the marriage is subject to equitable distribution. Continue reading ›

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In New York, in 2011 the legislature passed the Marriage Equality Act.  This law gives same sex couples the right to get married in New York State.  Under the law, out of state marriages for same sex couples are to be recognized in New  York.  Prior to the passage of the law, New York was, for the most part, recognizing same sex marriages performed in other jurisdictions, although the law was not abundantly clear in this state.  Currently, it is clear that New York State will not deny marriage license to same sex couples by reason of the couple’s genders.  Furthermore, all the rights, benefits and protections that opposite sex married couples enjoy now need to be afforded to same sex married couples by New York, whether they were married here or in another jurisdiction. There is no residency requirement to be married in New York therefore out of state same sex couples that wish to get married in New York can come here to “tie the knot”.  It is advisable to consult with a New York, Long Island or Nassau County Family Law Attorney if you have concerns about entering into or dissolving a same sex marriage.

The fact that New York recognizes a same sex marriage, however, does not guarantee that it will be recognized by every other state or jurisdiction.  As of recent times places that recognize same sex marriages include, but may not be limited to as the laws are frequently being updated:  California; Connecticut; Delaware; Iowa; Maine; Maryland; Massachusetts; Minnesota; New Hampshire; Rhode Island; Vermont; Washington; and the District of Columbia.  Some states, like New Mexico, will recognize out of state same sex marriages, while other states, like New   Jersey, will recognize some of benefits that out of state same sex married couples could enjoy.  Most other states do not recognize same sex marriages, wherever they were performed.  Whether the federal government will recognize the marriage performed in New York for couples living in jurisdictions that have not enacted marriage equality law is not always clear.  Various rights that may apply to married couples, that non-married couples do not enjoy are:  tax benefits; insurance; inheritance; property ownership; among other benefits.     

Parental rights is another important area of law effected by same sex marriage.  The spouse of a woman who gives birth to a child in wedlock will also be listed as a parent on the birth certificate whether that spouse is a man or a woman.  This, however, would not preclude a paternity case involving a man, not married to the biological mother.  Different rights apply to married male couples since neither of them is the birth mother or married to the birth mother.  Adoptions by same sex couples is an important area of law to help solidify the parental rights over a child as well as to aid in the recognition of the parental rights by other states and jurisdictions. Continue reading ›

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Divorce mediation, collaborative divorces and settlements in divorce litigations on Long Island, New York City and the rest of New York operate in the shadow of the law.  What this means is that the law exists in the background but does not have to control the resolution of that particular case.  The reason is these settlements are structured and agreed upon by the divorcing couple with the help of a mediator and/or attorneys.  A judge is confined to decide cases according to the law which might not be particular to the needs of each family.  My experience as a Long Island Divorce Mediation Lawyer, and litigator tells me that a divorce that is decided by a Judge after trial is almost invariably the most expensive route.  An essential element of a settlement or agreement whether it comes from a divorce mediation, collaborative divorce, or a settlement from an uncontested or litigated divorce is that the parties both agree to the terms.  This means that somehow people were able to get past the sticking points.

How do we get past the sticking points?  There is no magic formula or one size fits all approach, unfortunately, but different methods work for different people that have different fact patterns to their life situations.  The key is the willingness to try different methods to resolve the differences.  My experience tells me that people that choose divorce mediation or a collaborative law approach are the most willing to utilize different techniques to get past the sticking points.  Lawyers and clients  negotiating a case outside of divorce mediation or collaborative law may use creative settlement techniques as well.

I am writing this blog entry as a brainstorm of different ideas and techniques that I might use or anyone could use to get past the sticking points to settle their divorces no matter the method used.  The suggestions are not in any particular order and are by no means an exhaustive list. Continue reading ›

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A party to a divorce can change their last name back to a prior surname once the divorce is granted.  There will be language in the Judgment of Divorce which either specifies the last name that can be resumed or that in general they may start to use whatever their maiden name used to be.  That Judgment of Divorce can then be brought to the Department of Motor Vehicles, Social Security office and other important places, to have them issue a drivers license with the proper new name.  The Judgment of Divorce will reflect this regardless of the method utilized to get the divorce.  This means that if you go through divorce mediation, collaborative divorce, or the traditional adversarial model the same language about the name change should be in the Judgment of Divorce.  Your New York City or Long Island Divorce Lawyer that drafts the documents to submit to the Supreme Court as part of the divorce package should include the last name change language in the papers that are submitted to finalize the divorce.

People that want to change their first and/or last name or are not going through a divorce can apply to change their names as well.  On Long Island and other locations outside of New York City, such as Westchester and Rockland Counties, name change petitions are done in the Supreme Court.  In New York City they are done in the New York City Civil Court.  The application should be done in the County that the person applying for the name change lives in.  You do not necessarily need to have been born in New York to do your name change application here, it is however necessary that you are now a New York resident to file the case here. The filing fee to start the case in the Suffolk County or Nassau County Supreme Court is $210.00 while it costs $65.00 in a New York City Civil Court.

With the filing fee, you or your family law attorney can submit a name change petition and the order you would like the judge to sign granting the name change.  A birth certificate or other proof of birth needs to be submitted with the papers.  If the name change petition is approved, the Judge will require the notification of the name change to be published in a newspaper.  Name change applications are public record, but at times, a court might dispense with the publication requirement and seal the request for the name change if there are personal safety issues shown to the court. Continue reading ›

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Separation agreements or stipulations of settlement that come from divorce mediations or a collaborative divorce case are structured the same as a stipulation of settlement that emanates from a divorce litigation that was eventually settled.  The differences between the three methods are in the process by which the agreements are made.  For more information about the divorce mediation, collaborative divorce, and divorce litigation processes please see some of my other blog entries on this site.  This article will focus upon the contents of a typical agreement or stipulation of settlement.  The structure of agreements vary from case to case and by the person who drafts the agreement.  In other words, the appearance and contents of an agreement can vary.  This blog entry is just an overview.  Actual agreements should be drafted and reviewed by trained New York matrimonial lawyers.

I handle cases all around the New York City area.  As a Long Island Divorce Mediation Lawyer I have customary items that I like to include when I am the drafting attorney.  The beginning of the settlement agreement typically will list out certain facts about the specific marriage.  The date and place of the marriage, whether it was a civil or religious ceremony and if there are children of the marriage are set forth.  Next, the elements of the law that were considered in deciding the various aspects of the divorce can be enumerated.

Equitable distribution is a topic that needs to be considered for the dissolution of marriage with or without children.  Therefore almost every stipulation will state that in regard to the subject of equitable distribution the parties have considered New York Domestic Relations Law Section 236(B) (5)(d) and the specifics of that section of the statute.  Even if there are no marital assets to distribute, this section will usually still be included.  Almost every settlement agreement will also list that in resolving the issue of the spousal maintenance, the Parties considered the following statutory factors, pursuant to New York Domestic Relations Law Section 236(B) (6).  This section should be included whether or not any spousal maintenance is actually awarded to the husband or wife.  Only if there are children the agreement should spell out that the parties have considered the provisions of Domestic Relations Law Section 236(B) (7) and have been advised of the provisions of Domestic Relations Law Section 240(1-b), commonly known as the Child Support Standards Act.  If there are children under eighteen years of age then the elements of the Domestic Relations Law that were considered regarding custody and parenting time should be spelled out as well. Continue reading ›

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Alimony is now known as maintenance in New York.  “Pendente lite” (Latin for pending the litigation) maintenance, or temporary maintenance, is a legal term for the maintenance that is to be paid while a divorce case is ongoing.  Pendente lite maintenance is different from durational or “permanent” maintenance which is the maintenance, if any, that is to be paid once the judgment of divorce, is granted.  Durational or permanent maintenance does not mean maintenance that is paid forever more, if there is any to be paid, as it is usually for some period of time.  Maintenance is intended to allow a party to a divorce sufficient time to get back on their feet, so to speak, or to be able to be self supporting.   As a New York City and Long Island Alimony Attorney and divorce mediator, I deal with the issue of maintenance every day.

In a divorce mediation or a collaborative divorce cases, the issue of whether there should be maintenance should be discussed to determine if there should be maintenance, the amount, and for how long it should last.  How the family can transition from a one household unit to a two household unit is usually the focus in a mediation or collaborative case.  Everyone’s budgets are looked at to see how to make things work.

Likewise, in a litigation, the amount of maintenance can be agreed upon.   If there is not an agreement concerning temporary or pendente lite maintenance, a party to a divorce litigation would need to make a motion to ask a Judge to order that to be paid while the case is pending.  This motion is called a pendente lite motion in the court.  Usually all of the things that someone might need a court to order while the case is ongoing should be requested in a pendente lite motion.  Typical things to ask a Judge to rule upon might be:  temporary custody and parenting time (visitation) of children; pendente lite child support; payment of the carrying costs of the marital residence; exclusive use and occupancy of the marital residence; attorney fees; and expert fees among other requests.  Other and future blog entries contain more details about these other aspects, besides maintenance, of pendente lite motions and agreements. Continue reading ›

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