Articles Posted in Separation

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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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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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Every location has different particularities that make handling family law and divorce cases somewhat different from County to County.   The Domestic Relations Laws and Family Court Act is the same for everyone in New York, but different rules and procedures might apply from Judge to Judge, courtroom to courtroom, and certainly from venue to venue. I handle cases all around the New York City area including Nassau and Suffolk County Long Island. I started my family law practice some years ago as a Suffolk County Family Law Attorney. My office is in Jericho, New York, where I work as a divorce mediator, litigator, and collaborative law lawyer. However, I reside in Suffolk County and enjoy the convenience and familiarity of handling cases in the Suffolk County courts. I have handled more Suffolk County cases than any other location. The purpose of this blog article is to relay information about family law and matrimonial cases in the Suffolk County Supreme Court and Suffolk County Family courts.

As I handle Nassau County, Queens, and New York City cases in addition to Suffolk County, I have seen some of the nuances of each area.  At times there is a choice of venue to file the case if the parties reside in different counties. Divorces may be filed in any county chosen by the Plaintiff, and as long as venue is not contested by either side, the case can be resolved in that County, provided New York State otherwise has jurisdiction.   A specific County might be selected as they are in the position to better expedite granting the divorce than a different venue. There are often considerations about whether to file a case in the Family Court or Supreme Court because the Suffolk County Family Court and Suffolk County Supreme Court in most instances have concurrent jurisdiction, after a divorce, to hear ongoing issues about child custody, child support, parenting time, and maintenance.

Divorces are handled in the Supreme Courts of the various New York Counties. Usually depending on the residences of the parties, a divorce filed in Suffolk County Supreme Court is either assigned to be heard at the court in Central Islip, New York or Riverhead, New York. The addresses are 400 Carleton Avenue Central Islip, NY 11772 and 235 Griffing Avenue Riverhead, NY 11901. Post judgment divorce issues may also be filed and handled at the Suffolk County Supreme Court. Cases are assigned to Supreme Court Justices that are elected Judges, however, the parties can agree for the case, or one of the issues in the case, to be heard by a Judicial Hearing Officer for different reasons such as to expedite the time frame of resolution. Mediation services can be ordered, usually only by agreement, for which the parties need to pay. Since I am a Suffolk County resident, I enjoy the convenience of appearances in Suffolk County Courts. Continue reading ›

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The Long Island contingent of the New York Association of Collaborative Law Professionals has been making a push to start implementing streamlined protocols in order to further save time and expenses to divorcing couples that have chosen to work collaboratively. Collaborative law is an alternative to litigation, but unlike mediation, each party has the representation of trained professionals that make up the team in this non-adversarial divorce process. Typically, the team includes each party having their own collaboratively trained attorneys, divorce coaches, and one financial neutral although the necessary professionals can vary from case to case. As a New York City, Long Island and Nassau County Collaborative Divorce Lawyer, I believe in the collaborative law process. I am pleased that we are now using the streamlined initiatives here on Long Island. I want to use this blog entry to reiterate why collaborative law is the gold standard for divorces and as an opportunity to talk about the streamlined collaborative divorce process.

Collaborative law is the gold standard for divorces. Everyone works together to stay out of court and to work with a team of well trained professionals equipped to deal with the legal, financial and emotional aspects of dissolving a marriage. Parents put their children first in the process. The process is designed to help a couple safely and sensibly transition into two independent households. Collaborative law is a moral and honorable way to divorce with integrity. Most importantly, the process works to resolve issues and get couples to agree.

The streamlined process essentially is broken down into four phases. Phase one is putting the team together. Phase two is information gathering. Phase three is brainstorming options and reaching agreements. Phase Four is moving on with the rest of your life, your new story! 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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Relocations can be discussed and settled upon in child custody cases, mediations and collaborative divorce cases.  What happens, however, if the parties (usually parents) do not agree on whether a parent should be allowed?  As usual, the best interests of the children are used as the legal standard in New York to decide relocation requests in child custody cases.  The default law, once an order about child custody or parenting time (aka visitation) is made, is that the parent that has physical custody would need permission from the other parent, or a court that has jurisdiction about child custody to decide the relocation request.  Parties to a child custody and parenting time case are free to agree to include different language about future relocations with the child.  If the order is silent about relocations, the default law is what would control in the case.  As a New York City and Long Island child custody lawyer, I have experience in settling and litigating relocation issues in child custody cases.

Probably the oldest and most repeated story about a custody dispute is the biblical story about the wise King Solomon.  Two women came to his court both claiming to be the mother of a baby.  As the judge, King Solomon proposed to resolve the situation by cutting the baby in half and giving each woman half of the baby.  One of the litigants thought this was a great idea while the other begged the King to give the live baby to the other woman.  King Solomon then decided that the true mother was the one who begged for the baby to be given to the other woman.  A New York court cannot propose splitting the baby in half, like the wise King, so in a custody dispute the court is left with the prospect of deciding which parent the child should live with.

The highest court in New York State, the New  York Court of Appeals has set forth factors which should be considered by a judge, or trier of fact when deciding what outcome is the likeliest to be in the best interest of the child, when deciding relocation requests.  For ease of reference I am going to list them out here.  The case law dictates that the following is significant and should be considered by the court: 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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Collaborative law is a process where couples, and their lawyers, agree to settle their differences without the courts or threatening to litigate.  This is accomplished by everyone signing an agreement to work together in a cooperative or collaborative fashion, to iron out all the details that need to be settled in a divorce (or other family law issue such as spousal support, child support, or custody).  Compliance with collaboratively made agreements is higher than settlements or orders that emerge from litigated divorces.  What this means is that the need for future litigation and court processes are less likely for people that go through a collaborative divorce than a litigated case.  Couples that go through a collaborative case can often stay friends, even after they are no longer married.  The stress on the children of divorcing couples is minimized in this method.

A usual first step for someone interested in a collaborative law divorce is to find a collaborative law attorney that they wish to use on the case.   I happen to be a Long Island collaborative divorce attorney, although I work all over the area.  A lawyer that is properly equipped to work on a collaborative law case should have substantial matrimonial law experience.  The lawyer should have undergone extensive collaborative law and mediation training as well.  One sure way to find a lawyer that has the right credentials to work on a collaborative law case is to select one that is a member of the New York Association of Collaborative Professionals.  Member lawyers have been screened to ensure that they have the right background and training to handle a collaborative law case.

The lawyers do not use adversarial methods in this process.  Clients have the benefit of being represented by a lawyer at all times.  Some people feel that they need the representation and advice of a lawyer through the whole divorce process, which they might not get in mediation.  The parties in a collaborative case however have decided that they do not want to battle in court as is often a part of the traditional litigation model.  The lawyers that work on the collaborative case are not permitted to continue on the case if later there is litigation.  This helps to ensure that everyone is committed to the collaborative process.  The professionals that work on the case are able to deal with the legal, financial and emotional aspects that are part of a divorce.  For people who are not interested in an adversarial divorce, collaborative law could be the alternative approach they are seeking. Continue reading ›

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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 ›

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