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Articles Posted in Collaborative Law

For some litigation works, but many find litigation to be a frustrating process.   Litigation can be a time consuming, expensive, emotionally draining process that is hard on any children of the family.  Some cases settle relatively quickly after one, two or a few court appearances.  Others find though, after being embroiled in a divorce for months, sometimes literally years (depending on the complexity and the location of the court), without a definitive end date in sight, that they are weary from the court process.  As a Long Island Divorce Lawyer, mediator and collaborative law attorney, I can definitively say that it will take longer from the start of a divorce case to the end of a trial than a mediation or collaborative law case.

Why might it take so long?  Due to the volume of divorces filed in areas like Nassau County, Long Island and Queens, New York City, many cases can not be settled right away and need the courts to either decide the cases or help them settle.  The amount of judges and judicial hearing officers that can deal with the cases is simply not enough to be able to resolve the cases in the amount of time that the parties would like.  A lot of people going through a divorce are under the misimpression that the first time they go to court they will stand at the microphone in front of the judge and have their turn to tell the story.  The belief is that then the judge will rule upon their case and the divorce will be over.  I think we have television shows like the People’s Court, Divorce Court, and Judge Judy to thank for this misperception.

Most of the time, the first time people go to court in a New York divorce it is for a preliminary conference.   At a preliminary conference a schedule for the case is made including when discovery demands need to be served and responded to, when examinations before trial should take place (depositions), and when a case should be ready for trial among other things.  The ready for trial date is usually six months to a year after the preliminary conference.  Routinely, however, the dates set forth in the schedule in retrospect were hopeful dates. In most cases, every step of the way takes longer than was anticipated in the schedule. Even if the lawyers and parties met the initial deadlines set forth in the case, the court’s calendar needs to be able to accommodate a trial. Trials can take many days that might not be consecutive.  At times a trial begins and then is continued at a later date weeks or months later.  Accordingly, it might take months to complete the trial and get a decision out of the court.  Also, the decision, might not be what either side wants.  A common example of this is with a parenting time schedule.  The court usually will make a “cookie cutter” type parenting time schedule, such as every other weekend to the non-custodial parent that may or may not fit either side’s schedule. Continue reading ›

Whether a case is settled before it is filed, after some litigation, or a Judge decided it, at the conclusion of the case a number of documents must be prepared, signed and filed with the court in order for the divorce to be finalized.  These same documents are required throughout the state and regardless of the method used to decide the case such as mediation, collaborative law, litigation, or settlement negotiations.  Therefore, in my practice as a Long Island Divorce Lawyer, or in my New York City and surrounding area cases, the same forms are used.  The first document that always needs to be filed in a case is called the Summons.  A divorce can be started simply by filing a Summons with Notice alone, in the local Supreme Court along with the payment of the filing fee to purchase an index number which is $210.00.  A Summons is filed along with the Complaint, but when a Summons with Notice is filed the Complaint can follow at a later time.  Both a Summons and a Summons with Notice dictate the time period for the spouse to appear in the case by serving a Notice of Appearance.  A Summons with Notice must also contain the grounds for the divorce, be it the “No-Fault” or otherwise, along with a description of the ancillary relief that is requested such as child support, maintenance and equitable distribution of marital assets.

The Notice of Automatic Orders and Notice Concerning Health Care Coverage need to be attached to the Summonses. The Automatic Orders essentially provide that the status quo be maintained until written agreements or court orders otherwise are made.  For example, retirement accounts can not be drawn upon and insurance that is in place must be maintained to name some of the orders.  The Notice Concerning Health Care Coverage informs that upon the entry of the divorce that spouses may not be able to stay on the health insurance of their spouse.  COBRA benefits are usually available for a period of time, however this comes at a cost.

A Verified Complaint needs to be filed and served. The Complaint sets forth if the residency requirements are met, the children of the marriage (if any), health insurance plans, grounds, if the ceremony was religious or civil, and the relief sought again.  The Verification sets forth that the Plaintiff has read the complaint and that it is true and is signed before a notary public.  If the parties were married in a religious ceremony, an additional document called the Sworn Statement of Removal of Barriers to Remarriage must be included in the filing package.  Each party signs these before a notary to set forth that they have or will take any necessary steps to make sure the other side can get remarried in their religion. Continue reading ›

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 ›

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 ›

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 ›

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 ›

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 ›

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 ›

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 ›

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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