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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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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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Extraordinary circumstances must exist for someone who is not a parent to be able to prevail against a parent for custody or guardianship in New York.  Only if these extraordinary circumstances are found by a court to exist should the court then consider if it is in the best interests of the child(ren) for the grandparent, relative or other person to be given guardianship or custody.  Further consideration will be given below to guardianship and custody requests by grandparents or other non-parents. But first I will address the topic of grandparent rights to visitation which I have seen come up a lot in my practice as a New York City and Long Island Child Custody Attorney.

Whether or not a grandparent has “standing” to petition for visitation is the first thing that must be established for a court to decide a grandparent visitation petition.  Standing means whether or not the person has the right to be heard in court.  If the petitioning party does not have standing the case should be dismissed.  There is automatic standing if one of the parents of the child has died.  In other cases, courts need to determine if equitable circumstances, dictate that a court should intervene to hear the grandparent visitation request.  Such equitable circumstances could be extended disruption of custody by a parent, parental abandonment, physical or mental unfitness of a parent, among other scenarios.

If a grandparent is found to have standing, then a court must determine if it is in the child(ren)’s best interests for the grandparent to be given a visitation order.  Usually if it is necessary for a grandparent to petition for visitation, a parent or parents with custody are opposed to the grandparent getting a visitation order.  Because the care, custody, and control of children is considered a fundamental right of parents, there is a presumption to be given that “fit” parents are acting in the best interests of their children.  Courts are therefore supposed to give “special weight” to a fit parent’s wishes about a grandparent visitation order.  Courts still have the final decision on the matter, but the parental preference in such a situation needs to be considered by the court.  The nature and extent of the relationship that the child already had with the grandparent(s), the child’s preferences, the needs of the children, and the reasons for the opposition to the visitation should all be weighed by the court before determining whether to grant the visitation order or not. Continue reading ›

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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 ›

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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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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 ›

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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 ›

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People that are considered family, by the law, have the ability to get orders of protection against other family members in New York Family Court (or New York Supreme Court while in a divorce) if a Family Offense has been committed by the person against whom the order of protection would be made.  Otherwise, orders of protection can be given in favor of victims or alleged victims of crimes against the perpetrator or the defendant in a criminal prosecution.  What that means is that family members have the unique ability to get orders of protection against their family members without having the person go through the criminal prosecution system.  Of course, the victim, or alleged victim, has the right to seek a criminal prosecution instead, or in addition to, seeking the order of protection through the Family Court or Supreme Court.

If a person properly alleges a Family Offense in the petition, the court will usually grant a temporary order of protection, just based on the one sided presentation by the petitioner, for the accused to either stay away from the protected person(s) or to refrain from doing prohibited acts against that person (such as harassment, disorderly conduct, assault, etc.).  Frequently, agreements are made to settle an order of protection case for an agreement to have an order of protection in place for a specified period of time such as six months, one year, or two years with the accused not admitting any of the allegations.  If there is not an agreement for an order of protection, the court must hold a hearing to determine based on a fair preponderance of the evidence whether a family offense has been committed.  This is a much lower burden of proof than is required in a criminal case which is guilt beyond a reasonable doubt. If the court finds a family offense was committed then the court must decide what order of protection would be appropriate to issue on a “permanent” basis which means for some duration after the completion of the case.

So, you might be wondering what is a family offense.  A family offense is defined as conduct between family members that are crimes or violations under the New York Penal Law. Section 812 of the New York Family Court Act has the list of crimes and violations that qualify as Family Offenses.  In order for a New York Family Court to award an Order of Protection after the filing of a Family Offense petition, it must find that one of these specifically enumerated Family Offenses was committed.  Since these are activities are crimes and violations under the Penal law, it is possible that the alleged perpetrator could also face criminal prosecution.  The more detailed elements of each of these family offenses can be found in the Penal law.  But remember, a family offense proceeding in family court is not a criminal prosecution, it is a civil proceeding that is usually about obtaining an order of protection not having someone put in jail.  Although, if someone violates the order of protection, jail is a distinct possibility. Continue reading ›

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I have handled a lot of Long Island child custody and visitation (aka parenting time) cases, particularly in Nassau, Suffolk, Queens, New York City and the surrounding areas.  I will discuss below how custody cases are decided in the Family Court and Supreme Court in contested child custody litigation or, what is aptly called a custody battle.  Mediation, collaborative law, and uncontested cases are alternative methods which will be addressed in other blog entries.

If a couple is not married, or they are married but there is not a divorce case pending, parents can consider using the Family Court for a custody case.  If a couple is married, living together, and co-parenting then the Family Court might decline to hear the case.  Parties should discuss with an experienced family law or matrimonial lawyer whether the Family Court would have jurisdiction in their particular situation.  Once a decision is made to file in Family Court or Supreme Court then appropriate papers must be drafted, filed, and served.  Although parties may represent themselves, it is advisable to use an attorney as navigating through a custody case in court can prove to be a tricky process.  The first court appearance is a conference date, whether in the Supreme Court or Family Court, in which the parties are free to consent to an agreement on what the custody terms and parenting time schedule will be for their children.

If an agreement is not made, often, an attorney to represent the child or children is appointed.  Usually, in the Family Court, the County will pay the fee for the attorney for the children.  In the Supreme Court, where a divorce must proceed in New York, usually the parties pay the costs for an attorney for the children.  The attorney for the children is required to advocate for the children’s’ desires.  In the case of very young children, sometimes it is appropriate for the attorney for the children to substitute their own judgment despite what the children are expressing.  This is determined on a case by case basis based, in part, on the maturity of each child. Continue reading ›

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