Articles Posted in Divorce

Swearing-In-300x211Assets aren’t the only thing that may need to be distributed between two parties when a divorce takes place. Some couples need to think about distributing their debts too – particularly when there is a dispute about whether the couple agreed to take on those financial commitments together or not. In order to prove to the courts of New York and Long Island that a debt should be split, parties must provide some crucial information. Most commonly, the courts will require some evidence that the debt was incurred either for the benefit of the other party, the household, or with the other party’s permission. This is a way that something may be considered marital debt, rather than just “individual” debt.

In most instances the debt that exists at the time of filing the divorce will be open to consideration by the courts. Usually, any debts that are taken on after the divorce case is filed won’t have any traction in the case. However, I have found some exceptions to this rule. For instance, in the case of G.T. v. A.T., 43 Misc. 3d 500, 501, 980 N.Y.S.2d 255, 256, the court was prepared to consider any debt incurred when the divorce was ongoing. However, the court ended up ruling that it was not going to distribute the debt that was incurred during the pendency of the divorce, simply because neither side was able to show evidence that the debt was made with the other’s permission.

In the case above, the plaintiff had a discover card in their name and a Visa and Mastercard in the name of the defendant. The two parties had accrued debt on all of the cards during the pendency of the case. However, as no evidence was available to suggest that the debt was incurred for the benefit of the other spouse, or with the other spouse’s permission, that debt was not be treated as marital debt. My experience is that if post filing expenses or debt is going to be an issue that the parties would want to attempt to get a Pendente Lite Order from the court. This is an order that provides for payments to be made for support and expenses while the divorce is ongoing. Continue reading

Caucus-Session-300x200In my last two blog posts, I’ve discussed the considerations that take place when a divorcing by mediation couple is wondering whether or not to engage in divorce mediation by caucus. For some people, caucusing is an excellent way to keep emotions under control and support the successful outcome of divorce mediation. For others, caucusing may cause more problems than it solves. In this blog, I’ll be discussing the procedures and ground rules that divorce mediators like myself consider when clients opt to take the caucus session route. For me, the most important initial rule is to make sure that both parties are completely comfortable with the idea of caucusing. I can do this by discussing the options that both clients have with them during a joint mediation session. Once that decision has been made, the couple will sign an agreement on confidentiality of information.

It’s important for the clients in a divorce mediation to know what will happen to the information shared in private caucus sessions. For instance, is some of the information to be kept confidential, or should it all be shared in a joint environment? Does each piece of information need to be identified as either confidential or public? I ask the clients in divorce mediation sessions to opt in and agree to the confidentiality clauses that they feel comfortable in within a joint session before the caucusing sessions can begin. Continue reading

Mediation represents an excellent opportunity for parties in a divorce to settle their issues using negotiation, rather than litigation in front of the Mature-Mediator-Meeting-300x200family or supreme courts. In the right circumstances, working with a divorce mediator such as myself could also mean that you get to maintain more control over what happens with your divorce, as you can come to an agreement that can be drafted and sent to the courts for approval. However, there are many different kinds of mediation available in the world of family law, and it’s important to decide which option is right for you before you get started. My last blog was about the positives involving caucusing in divorce mediation. In this article I will point out some of the counter considerations.

I, and other divorce mediators like myself, can offer clients the opportunity for caucusing in mediation, in situations where it may be appropriate. In divorce mediation with caucus sessions, each party will have the chance to take a moment away from the joint session so that they can discuss an issue with their divorce mediator in private. Crucially, this isn’t an opportunity for either party to get exceptional legal help from their mediator or guidance on what to do next. Instead, caucusing moments can be used to gain clarity on a situation, or discuss what might be possible if a specific negotiation path is suggested.

Usually, when clients come to me in search of an experienced divorce mediator, they’re looking for someone to help them with their negotiation that they both feel as though they can trust. For the most part, to this point, I and the people that I work with have engaged in mediation without caucusing. I have felt that this keeps all information out and in the open, rather than causing one party to worry about what the other says behind closed doors. Mediation often works best when both parties feel comfortable with the idea that their mediator is neutral and objective. However, if both parties in the divorce are comfortable with the idea of caucusing, then the solution can offer a range of benefits too. Continue reading

Caucusmeeting-300x222The concept of caucus in mediation was originally designed to provide parties in a mediation dispute with some time to move away from joint sessions and discuss concepts with an advisor or divorce mediator on their own. These separate sessions weren’t intended to give the parties more support or an unfair advantage over their counterpart. Instead, the caucus sessions allow for the clarification of issues, the opportunity to reflect on short-term and long-term goals, and the chance to reflect on proposals and options for the future. According to Steven Leigh’s, article linked to here in Mediate.com the best times to use caucus are:

  • When mediators need to explore or clarify statements made by a party
  • When information is revealed that a party would like to remain confidential
  • When parties need privacy to determine the options, they want to explore in mediation
  • When options suggested in front of the other party may be seen as a premature commitment
  • When parties feel uncomfortable exploring their options in front of each other.

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Kitchen-Fight-300x200In Nassau County and Suffolk County, as well as the surrounding areas of Long Island and New York, the law generally allows for concurrent jurisdiction in either the Supreme or Family court to tackle issues of spousal or child support for married couples not living together. For a married couple living together, usually, unless it was clear that one of the parents has custody over the other, if one of the parents filed a child support case in family court, the family court would usually dismiss the case and direct that the issue of child support should be the topic in a matrimonial case. Matrimonial cases are dealt with in the Supreme Court.  Proceedings for legal separation or divorce are the most common marital cases, although an annulment proceeding is also a matrimonial case.  The family court does have jurisdiction to hear a child support case for a married couple not living together.

If there isn’t a matrimonial case pending already, spousal support cases can be filed in the family court. This may be true even in a situation where a married couple remains living together, without support for the non-monied spouse. The family court does not have jurisdiction to hear newly filed cases for assistance when a matrimonial case is pending with the Supreme court. However, there’s a general exception to this rule which allows for the filing of a support petition in the family court, even when matrimonial cases are pending if one spouse and the children are likely to become public charges or are already on public assistance.

Examining Spousal Support Cases Before Matrimonial Cases Begin

But what about a situation where a spousal support case is filed in family court, before the filing of a matrimonial claim, but then a matrimonial case is started immediately afterward? We can go to the case law for guidance. Continue reading

Negotiationpic-300x207The courtroom is rarely a place that most people want to visit when dealing with their matrimonial issues. More often than not, a day in court is a stressful experience, particularly when it comes to dealing with things like divorce, child custody, and visitation rights. It’s no wonder that many individuals prefer to negotiate their divorce outside of court if possible. While there are ways for people to avoid the courts, such as using divorce mediation, not all spouses know for definite whether their spouse will agree to an alternative dispute resolution process like divorce mediation or collaborative law. In these circumstances, it’s important to keep your options open.

When a spouse contacts my office to arrange their initial consultation (free for up to 30 minutes with the potential to move to paid consultations after), we try to screen them first to see if they are looking to utilize me as their neutral divorce mediator. It’s important for us to find out whether they want a one-on-one consultation with me as an attorney, or whether they are looking for a divorce mediator. Meeting with someone one-on-one when they’re considering mediation could compromise my position as a neutral party in the eyes of their partner. If the individual tells me that they want to have a one-on-one consultation with me, I may not be able to be their mediator, but we can keep their options open. Continue reading

Mediation-Couch-300x200Divorce is rarely straightforward. There are a lot of things that couples need to cover when a marriage comes to an end, including figuring out how debts and assets should be divided between parties, and determining who should have primary custody over the children. However, depending on the nature of your relationship with your ex-spouse, and the strategy you choose for managing your divorce, it is possible to make things a little simpler.

Divorce mediation is often a more straightforward way to deal with divorce for the couples I work with that want to avoid things like litigation. During mediation, couples have the chance to discuss the outcomes that they want to achieve with their divorce and negotiate the terms of things like maintenance aka spousal support, maintenance, equitable distribution and more. For many parties, a divorce mediation is a more relaxing and fast-paced strategy for handling the various complications that arrive during divorce. That’s why I’m so committed to giving the people I work with the opportunity to choose mediation if they feel that it’s right for them. Continue reading

Mediation-Consultation-300x200When an inquiry comes in for someone inquiring about getting a divorce, someone from my office attempts to ascertain from them whether they are interested in using our office as a neutral divorce mediator.  If they’re interested in mediation, we invite them to bring their spouse to come in for a free initial consultation to meet with me.  We explain that I do not, at least initially, meet with the couple one on one, or have an initial consultation with either one of them before meeting the couple together.    The consultation is usually up to a half hour in length, although some couples choose to immediately begin mediating that day after the initial consultation. 

I might start by telling the couple that I am a divorce lawyer, but in a divorce mediation, I do not act as the lawyer for either side.  I inform them that it is recommended that each of them hire and use their own individual review attorneys.  I explain that review attorneys are the individuals that will explain the law, their rights, and advise each of them.  A review attorney might say, “This is a good deal” or “You might want to change this deal a little bit” or “You won’t do better in litigation” or “You will do better in litigation”.  Either side could prepare for mediation sessions, prior to each session, with their review lawyers.  They can then debrief with the review attorneys after sessions and prepare for the next.  If not beforehand, the time to consult with a review attorney would be when an agreement is drafted.  I might mention that in the perfect world everyone uses review attorneys, however, the reality is that not everyone takes me up on that recommendation.  I am not sure of the exact number but perhaps half of the mediating individuals use review lawyers and the other half do not.  The half that do not perhaps believe that they have educated themselves on the issues and think that the mediated agreement is fair and are ready to do it.  Either way I do tell them that review attorneys are recommended but usually not required (there are exceptions).  
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Review-Attorney-Picture-300x199Most of the time, the appellate courts recognize that the trial courts of New York are given a great deal of discretion to make decisions about child custody and visitation aka parenting time matters. This is because it is recognized that these courts are in the best position to determine what is in the best interests of a child.  The trial court’s opportunity comes from the ability to assess the character and demeanor of the parties, witnesses.  The theory is that combining the court’s observations of the witnesses in the case, combined with the submitted evidence puts the trial court in the best position to make custody determinations. As I mentioned in my previous blog post, it’s unlikely for the appellate court to overturn the decision an appeal is made by a parent or parents who want to appeal a custody or visitation decision. However, it does happen at times and it may be possible for the matter to be overturned in an appellate court if the attorney for the appealing party can prove that that there was not a substantial or sound basis for the custody decision in the first place.

For instance, in the relatively recent case of Weisberger v Weisberger,  154 AD3d 41 (2nd Dept. 2017) the court found that the trial court’s previous decision to modify the stipulation and award full custody of the children to the father in the case was made without a substantial and sound basis in the record. According to the details of the case, the trial court gave excessive weight to the religious upbringing clause in the case, rather than focusing exclusively on the children’s best interests. There’s nothing to show that unsupervised visitation was detrimental to the children, and it was therefore inappropriate for the court to order supervised visitation. Continue reading

Lawyerlaptop-300x200Child custody is a complicated part of divorce and family law.

Parents will often fight tooth and nail to get the custody order that they believe is right for their family. Even after a court order has been ruled on by the trial court, one or sometimes both parties to the case may seek to appeal the decision of the trial court. However, because the trial court is vested with broad discretion to determine what is in the best interests of the child in mind when making custody decisions, it’s unlikely that arrangements will be changed in most situations on appeal. The courts in New York strive, in theory, to keep the disruption to a child to a minimum when making decisions about their future.

Typically, the decision of how to award custody is made in a trial court which is either the Supreme Court, in cases of divorces, or Family Court can also deal with child custody cases. The case law stands for the propositions that the trial court needs to be able to weigh various factors, including the character, sincerity, and testimony of the parties involved. The trial court has access to both parties and can supplement the information it learns from everyone with professionally prepared documentation and reports if such evidence is submitted. If one party in the case is unhappy with the outcome, then they can ask to have the matter reconsidered by the appellate court. However, appellate courts are often reluctant to re-evaluate the subjective factors addressed by the trial court. Additionally, decisions of trial courts are usually upheld, on an appeal, unless the party can prove that there was a lack of a sound or substantial basis, in the record, for the trial court’s original order. Continue reading