Mediation

What are the different types of child custody arrangements in New York?

November 11, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

Child custody in Long Island and New York, applies to children until they are eighteen years of age. Although eighteen is the age of majority in custody cases, child support continues in New York until age 21 for unemancipated children. The different types of custody situations are fairly uniform throughout New York. What this means is whether you live in Suffolk, Nassau, Queens or elsewhere, the different options for a settlement or decision on custody and parenting time matters should not vary too greatly with geography. It helps to have a working knowledge of what the different options are that are out there to know what to seek in your specific case. I will attempt to define what the most common custody arrangements mean in this blog entry.

There are two major areas of custody of a child that need to be decided. The first is with which parent the child lives. When a child lives with a parent, pursuant to a court order, this means that the parent has residential custody according to the law. The second major area that needs to be defined in a custody order is who has decision making authority for the minor child. The parent or parents who has/have the decision making power under the court order is said to have legal custody.

When someone has “Full” or “Sole” custody, that usually means that the child lives with that parent and that parent has full decision making authority for the child. In this situation that parent is the only person that has the authority to make decisions for the child. In other words, the person that has full or sole custody has both residential and legal custody for the child. Often it is understood and ordered that this person should consult with the other parent before a decision is made, however, ultimately the parent with sole custody gets to make the final decision. The parent that does not live with the children, or the parent that does not have residential custody in any of the custody situations usually has the right to parenting time or a visitation schedule. Details about different parenting time or visitation schedules will be the subject of a future blog entry. Continue reading ›

How does a typical divorce litigation proceed in New York?

November 5, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

Each case is unique, however, I am writing this blog entry to give people a broad outline of how a New York divorce litigation might proceed on Long Island, New York City or the surrounding areas based on what I know and have seen in my practice. A divorce case can be initiated by either filing a Summons with Notice or a Summons and Complaint. The Plaintiff then has 120 days, without obtaining an extension of that time from the court, to have the summons served upon the defendant. If the summons is personally served upon the Defendant in New York, the Defendant then has twenty days to “appear” in the action. In the situation where a Summons with Notice is served without a Complaint, the Defendant’s lawyer would usually serve a “Notice of Appearance and Demand for Complaint”.

After being served with the “Demand for the Complaint”, the Plaintiff’s lawyer would then have twenty days to serve the Complaint. Upon being served with the Complaint, the Defendant’s lawyer would have twenty days to interpose an Answer and any Counterclaims. The aforementioned time periods are imposed by statute. Extensions of time are routinely granted to each side upon consent. Before, after, and while all the aforementioned legal documents are being exchanged, the settlement negotiations can be ongoing between the parties and counsel. Negotiations may proceed by telephone calls, letters, or four way meetings (conferences with parties and their counsel) outside of court.

If a settlement can not be reached out of court, the only way for a divorce to be finalized is by “Judicial Intervention.” The attorney for either side might file what is called a “Pendente Lite” motion, to ask a court to order certain things while the case is pending. Typically, the types of things requested in this motion are: temporary orders of custody and parenting time; temporary child support; temporary maintenance; exclusive use and occupancy of the marital residence; payment of carrying charges of the residence; payment of certain costs and fees that might be necessary in the case such as appraisal costs or forensic accounting analyses; orders of protection; requests for lawyer fees and various other possible requests. Continue reading ›

Is Mediation the Right Choice for My Divorce?

October 28, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

This is a question that many people need to answer when deciding whether to try mediation for their divorce. I have been practicing matrimonial and family law, for a number of years now as an attorney all around the area. I also handle Long Island Divorce Mediation at my office in Nassau County, New York. My personal belief is that if a couple can do mediation it is preferable to a contested litigated divorce. Among the many reasons I feel that way is that a mediated case is usually faster, less expensive, more tailored for each individual family, and more dignified than a contested divorce. Couples tend to have less animosity for each other after a mediation. Many can remain friends.

It is important, however, that someone who goes through a mediation gain knowledge to know what they might be entitled to if they did litigate. The reason that this is advisable is that a mediator’s role is not to give legal advice to either side. Mediators that are also divorce lawyers are not acting as an attorney for either side during a mediation. A mediator’s role is to be a neutral third party that is there to facilitate parties coming together to make an agreement. Therefore, a concern when mediating is to be mindful of unknowingly making an unfair agreement.

This can be safeguarded against by using a review attorney to go over what was agreed upon in a mediation. People can find their own independent lawyers to go over the settlement that was reached from a mediation. Some mediators can provide names of lawyers that are willing to act as a review attorney to one side of a mediation. Review attorneys might charge an hourly rate to go over the agreement with their client or even offer a flat rate. The review attorney is there to provide legal advice to their client. A review attorney might give assurance if the agreement seems fair or lopsided. He or she can offer suggestions, if there are any, on changes to make to the agreement. The suggested changes can be considered with your spouse with the mediator. Continue reading ›

How is the guideline amount of child support calculated in New York?

October 21, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

There is a formula in New York contained in the law, commonly called the Child Support Standards Act, which is designed to provide a presumptive amount that a non-custodial parent should pay for child support. The policy behind the enactment of the statute was to attempt to provide standard amounts that people that have similar income should pay. The legislature tried to establish a mechanism, through the guidelines, to estimate how much money individuals would contribute for the children if the family lived together. As a Long Island family lawyer, mediator, and child support attorney, it is a formula that I have to contend with on a daily basis.

The first step is to start with each parties’ gross income. That is, what a person makes before taxes or other deductions are taken out. There can be some add-ons to determine the gross income. After any add ons are made, from the gross income, each party is entitled to certain deductions for child support purposes. Common deductions, for child support purposes, are for FICA taxes (social security and medicare), New York City or Westchester taxes, and child support for other children or maintenance being paid pursuant to a prior court order or written agreement. There are other, less common, deductions enumerated in the statute.

After the adjusted gross income is determined for child support purposes, each parties’ pro-rata share of the total income should be determined. What this means is what percentage of the total income each parties’ income makes up. For an easy example, for illustrative purposes, if the father makes $75,000.00 and the mother makes $25,000.00, the father’s pro-rata share would be 75% and the mother’s pro-rata share would be 25%. Continue reading ›

What is a typical divorce mediation like in Long Island?

September 13, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

Each mediator has their own approach; therefore this blog entry is not intended to be a definitive map for divorce mediation in Long Island and surrounding areas. The purpose of this article is to be illustrative of how a typical mediation could proceed.

A couple that is interested in getting a mediated divorce can come to the mediator’s office for a half hour no fee consultation. The mediator will meet with the couple together as he or she is a neutral person. Although some mediators are experienced divorce lawyers, as the mediator, he/she is not acting as the lawyer for either party. In the initial consultation a mediator will describe the process and answer the general questions that the wife or husband may have.

If a couple is ready to begin the process after the half hour consultation, then they can usually start to work on a settlement of the issues right away. The first topic that is usually addressed is what the grounds for the divorce will be. More often than not, there is an immediate agreement to use the no fault ground that now exists in New York. All that is required for this ground is that either the husband or wife needs to be able to swear that the marriage has been irretrievably broken for at least six months. It is not the husband’s fault or the wife’s. One person will need to be the plaintiff and the other the defendant when the actual divorce is filed. Usually this is not a source of contention.