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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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Custody trials can be a challenging part of a divorce or post-judgment divorce case in the Supreme Court where there is a disagreement over the custody and parenting time of a child.  A custody and visitation (parenting time) case can also proceed to trial in the Family Court.  Although the procedures to get to trial and other aspects of the case might have differences between the Supreme Court and Family Court, the actual trial on the custody and visitation of the children fundamentally will be the same in the two New York courts.  I am a Long Island Child Custody Attorney and have experience handling Supreme Court and Family Court child custody cases all around New York City and Long Island.

There are two general categories of custody trials that I am going to discuss in this blog entry.  The two are an initial custody determination and a modification of a prior order (writs of habeas corpus, contempt and enforcement proceedings will be discussed in later entries).  In both categories, the Judge or Trier of Fact (sometimes called a Referee), must make the final decision on what is in the children’s best interests.  However, in a modification of custody proceeding there is an additional first obstacle that needs to be surmounted.  The requesting party must first prove that there is a substantial change of circumstances that requires the best interests of the child(ren) to be weighed.  It is important for the lawyer and the parties to keep these standards in mind throughout a trial in order to present the most compelling and relevant information to the court.  The judge on your case will appreciate a focused presentation that does not include too much superfluous information or irrelevant material.  There are no jury trials for custody issues in New York so the hearing is what is called a bench trial.  The judge is the audience and the person who decides the case.

The petitioning or moving party goes first and will be given the opportunity to make an opening statement.  The responding party or other side of the case will be given a chance to make their opening statement afterwards.  Often their will be an attorney for the child or children that will also have the chance to make a statement.  Sometimes lawyers, or self-represented parties, will waive their right to make an opening statement and choose instead to let the evidence brought out, or the lack of evidence, speak for itself.  That is because the opening statements are not actually evidence.  They are a recitation of what might be brought out in evidence.  Stylistic preferences, and the facts of the case, will influence whether to make an opening statement or how to do it.  It is important to keep those aforementioned standards in mind, specifically, if a substantial change of circumstances needs to be first shown.  Also, everyone should never lose sight that ultimately what is in the best interests of the child(ren) is most important. Continue reading ›

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Forensics are ordered in custody and parenting time cases by the New York Family Courts and Supreme Court when there are disputes about the custody and/or visitation (parenting time) of minor children.  The custody dispute might be part of a divorce or can be a part of a case when the parties are not married or divorcing.  Forensics is the word used for investigations and reports made by psychological professionals for the court which are then used to aid in deciding how to rule on the dispute.   Usually forensics are employed for cases in which there is a battle for custody.  Sometimes, however, the question might be over time, access, child relocations or visitation with the child (ren).  Your New York City or Long Island Child Custody Attorney will be an important part of your case when forensics are involved.  Using the forensic investigator and report in a case is a technical process.

Forensic investigators are usually social workers, psychologists or psychiatrists that specialize in children and family matters.  The forensic professional will speak with each parent or other parties such as a relative or grandparent, the subject child or children, and other prominent people in the child’s or parent’s life.  Usually, at least a few meetings for each person will be required by the investigator with each parent and he/she will also meet with the child.  It is common for the forensic investigator to meet with each parent alone, the child (ren) alone and then the child together with each parent.

While forensics can be a useful tool for the trier of fact (the judge or referee), to gain valuable insight about what ruling would be in the children’s best interests, another motive might be to put financial pressure on the parties to settle.  Forensics can be a costly process.  The final price will vary from case to case, as the hourly rates of the investigators vary and the time spent on the case will differ.  How much time is required will depend on the specific matter and all the players involved. The allocation of the expense for the forensics is usually pro-rata, according to the percentage share of each parent toward the total combined income.  It is not unexpected, however, for a court to order that the costs initially be split and possibly be reallocated at trial.  Some courts will not decide a custody and visitation case without forensics regardless of the wishes of the individual parties or their financial circumstances.   Other courts are more sensitive to the financial ability to pay of each individual party and might not require them if it is a great hardship. Continue reading ›

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Appeals from decisions of the Supreme Court in a divorce or appeals from Family Court orders in New York are challenging. It is very important to properly serve and file the right documents, according to the deadlines in order for your appeal to be able to proceed. It is always advisable to use an experienced matrimonial or family law attorney whenever you are involved with a family law case in court. This is especially true for appeals which are highly technical in nature. This blog entry is intended to be used for information purposes only and not as a substitute for a consultation with a New York City, Long Island or Nassau County Family Law Attorney.

To be able to proceed with an appeal in New York, the person appealing must be a party that was aggrieved by the court order that is being appealed. An aggrieved party is someone that did not get all the relief they requested at the trial court. Once you determine that you are an aggrieved party then you have to make sure the order is appealable at this juncture. The general rule is that temporary Family Court orders, except for a temporary support order, are not appealable. But, even when temporary Family Court orders of support are appealed, the Appellate Divisions will usually encourage the resolution by recommending a speedy trial. Temporary orders issued by the Supreme Court, however, are appealable. Often times the speedy trial recommendation to resolve the temporary order appealed from might still be the solution decided by the Appellate Court. Almost all final judgments are appealable and any temporary orders that necessarily effected the final judgment can be reviewed on appeal of that final judgment.

Consent orders, stipulations, ex-parte orders or default orders are generally not appealable right away. Often times a motion to vacate the order in the trial court would be a required first step. In the case of a default judgment, for example, the defaulting party should make a motion to vacate demonstrating an excusable default and a meritorious defense. If the motion to vacate is denied, then the person might be an aggrieved party with an appealable order. Again, the advice of a divorce or family law attorney familiar with appeals should be sought to help make these determinations.

The rules of the Appellate Division in which the appeal belongs should always be consulted prior to starting the process. New York is divided into four Appellate Divisions. The First Department covers New York County (Manhattan) and the Bronx Counties. The Second Department covers Nassau County, Suffolk County, Queens County, Kings County (Brooklyn), Richmond County (Staten Island), Westchester County, Rockland County, Orange County, Dutchess County and Putnam County.  The Third Department and Fourth Departments cover upstate New York with the Fourth Department generally being the North West counties and the Third Department generally being the North East counties of New York State. 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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Parents have a duty to support their children, in New York, until the age of 21 unless they are sooner emancipated.  The doctrine of constructive emancipation has been developed by the Child Support Standards Act and corresponding case law in New York.  Children can be emancipated because they get married or join the military.  Other ways for emancipation to occur is where a child of employable age becomes economically independent or voluntarily and without cause, abandons a parent or the parent’s home, against the will of the parent and for the purpose of avoiding parental control.  New   York courts have held that in these cases the child forfeits his/her right to demand support.  It is a difficult case for the moving party to win.  I have argued both sides of the issue at trial as a Long Island Child Support Attorney.

Economic independence is usually an easier concept to grasp than the abandonment cases.  Economic independence commonly occurs, according to the Child Support Standards Act law, when a child is working full time and is self supporting.  The debate under this aspect of constructive emancipation usually comes under the topic of whether or not the child is generating sufficient income even when working full time.  Therefore, when a child of employable age is working but still receives help from a parent for important economic items like food, utilities and insurance the child likely is not to be deemed emancipated.  This might even be the case when the child does not reside with either parent but still needs help for financial support.

Although economic independence is not always an easy call, abandonment cases can even be trickier and more subjective.  The courts in New York have held that a child’s right to support and the parent’s right to custody and services are reciprocal.  A parent may impose reasonable regulations.  When the abandonment fact is that the child left a parent’s home, the debate can be whether or not it was against the will of the parent to avoid parental control and whether or not there was good cause.  Good cause is the key phrase in that situation which the court would need to decide in disputed matters.  The foregoing abandonment situation applies when dealing with the leaving of the home of what was the residential custodial parent. 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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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 single adult, a married couple or two adult intimate, even unmarried, partners together may adopt according to the New York Domestic Relations law.  Adoptions can be done through an authorized agency or by private placement including step parent, adult and foster parent adoptions.  Anyone that needs more information on the topic should consult with a New York or Long Island Family Law attorney to learn about their rights.  My office happens to handle such cases.

Petitions for adoptions can be filed in the Surrogates   Court or a New York Family Court.  The petition should include the names, addresses, age, marital status, religious faith (if applicable), and occupations of the proposed adoptive parents.  Similar background information about the adoptive child needs to be submitted, as well as the health and medical history of the child at birth and thereafter.  Known hereditary illnesses or conditions including any drugs or prescriptions taken by the biological mother while she was pregnant with the child should be disclosed.  Care should be taken to include any supplemental information that might have bearing on the child’s well-being including any special skills, hobbies or interests of the parents.  This kind of information can help make a court feel more comfortable about the adoption.  In the final analysis, a court needs to feel that the adoption is in the child’s best interests.

The birth certificate of the subject child should be attached to the application.  The petitioning parents will need to set forth when and how it is that the child came to be with the adoptive parent(s).  Information about the other members of the household in which the child will be living needs to be disclosed.  Anyone having legal custody of the child should be stated in the petition including their addresses.  If possible, a consent form from the birth or legal parents should be included with the application, however, consent is not always required under Domestic Relations Law Section 111 in situations such as when a parent has surrendered their child to an appropriate agency or a parent that has indicated an intent to forego their parental rights.  The consent of a child over fourteen years of age is usually necessary for the adoption.  The court reviewing the adoption application can determine whether consent is necessary for each specific case. 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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