Divorce

Can a Divorce Mediation Child Custody Agreement Later Be Modified?

February 7, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

Over the past few weeks, we’ve taken a look at the process of New York divorce mediation, in which parties work together to come up with an agreement regarding Parentswithbaby-300x200 many issues that would otherwise be decided by a judge. Last week, we discussed the fact that a New York divorce mediation can include terms that cover the custody of minor children, and provided an example where the court upheld a parties’ agreement although it was later contested by one of the parties.

It is important to note, however, that courts retain discretion in determining New York child custody issues. So, while the parties to a New York divorce are free to come to an agreement between themselves regarding child-custody matters, if the court determines that the parties’ agreement is not in the best interest of the children involved the court can set aside the agreement.

There are two common ways this situation arises. The first is during the judge’s initial review of the parties’ agreement and the second is if one of the spouses requests a modification to the child-custody agreement after the court has approved the agreement and the divorce is final. Once a child-custody agreement is approved, courts will not modify that agreement unless there is a substantial change in circumstances and the party seeking modification can show that modification is in the best interests of the children. A recent case illustrates a situation in which a court found that each of these elements was met and, thus, modified the agreement.

Can the Parties to a New York Divorce Mediation Provide Their Own Agreement Regarding Child Support Payments?

January 21, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

While some New York divorces are long, drawn-out, and contentious affairs, others are much more amicable such as when the parties use divorce mediation as the ChildSupportMediationCouple-300x200 process. In the latter type of divorce, it is not uncommon for the parties to agree on many of the issues that a court would otherwise need to decide. Among matters that are commonly worked out between divorcing spouses are the division of marital property and the payment of spousal support.

Some couples will also be able to agree on the payment and amount of child support with their divorce mediator or through settlement negotiations. However, because the right to receive child support technically belongs to the children for whom the support benefits, courts retain the final decision over a New York child support agreement.

Under New York Domestic Relations Law section 240, the parties to a child support agreement must aver that the agreement provides the correct amount of child support. If, however, the mediated divorce agreement or settled agreement between the parties deviates from the basic child support amount that would otherwise be appropriate, the parties must explain what the necessary amount of child support would be and why there is a deviation by agreement. Importantly, this cannot be waived by either party.

The Costs of New York Divorce Mediation Versus a Traditional Divorce

January 12, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

Going through a New York divorce can be an extremely difficult time for both spouses. However, it does not have to be. When the parties can agree on some of the businessmeeting-300x200 fundamental issues, New York divorce mediation is an excellent option to decrease the amount of time, money, and stress expended in the process of getting a divorce.

As anyone who has been through a New York divorce understands, filing for divorce is not free. On top of the legal fees that will be incurred by each party, various filing and trial preparation fees can add up to thousands to tens of thousands of dollars. In addition, the time it takes for a New York divorce to become final differs, but it is typically a lengthy process that lasts between six months to over a year.

Divorce mediation is an alternative to court litigation for people who want to separate their lives and obtain a New York divorce. The mediation process involves the parties sitting down with a neutral third-party mediator who helps the parties discuss all the relevant issues of the divorce and come up with a mutually acceptable plan. Once the agreement is reached, the end result will be the same as if the couple had gone through the court system to obtain a divorce – except the parties will have saved themselves a significant amount of time and money.

What Sort of Issues Does a Good New York Prenuptial Agreement Cover?

December 29, 2018 | Law and Mediation Office of Darren M. Shapiro, P.C.

When a couple gets married in New York, they are legally entering into an “economic partnership.” Thus, absent a clear indication to the contrary, courts assume that Mediating-Prenuptial-300x202 the couple agrees on certain default rules regarding the couple’s assets. However, not all relationships are formed on the same set of expectations and many couples find that the process of drafting and executing a New York prenuptial agreement is beneficial, in that it requires the couple think about difficult issues that may not otherwise have come up.

A prenuptial agreement is a contract between prospective spouses that clarifies what will happen with the individual and marital assets if the marriage ends, either by death or divorce. Without such an agreement, New York’s default rules will apply, which may not result in a satisfactory outcome for some couples.

Unfortunately, New York prenuptial agreements have a negative connotation, and one spouse’s suggestion that the couple enters into a prenuptial agreement is often met with skepticism from the other spouse (and potentially that spouse’s friends and family). However, drafting a prenuptial agreement is more about providing clarity to both parties in the event that the marriage ends.

What’s the Difference Between Divorce Mediators and Review Attorneys?

December 18, 2018 | Law and Mediation Office of Darren M. Shapiro, P.C.

There are many different ways to handle the complexities of a New York divorce. Often, as a divorce attorney that also offers mediation and collaborative law, I receive calls from Review-Attorney-Picture-300x199 clients who aren’t sure what kind of process they want to use for their marital issues. In some situations, clients may want to access my assistance for legal advice, but then they also want to use me as a mediator too. Unfortunately, this isn’t an option that I can provide, because, in my view, it would potentially harm the neutral ground required for a successful divorce mediation process.

In New York divorce mediation, I find that the process works best when both spouses come together in neutral territory and discuss their issues with a third-party who is objective in the case. If, as an attorney, I met with one side of the case before mediation, then this can lead to discomfort for the other party. Some clients would even feel as though they’re not getting a “fair” experience. Though, in some rare instances, it’s possible for me to have a very brief conversation with one spouse before the mediation begins, however, I wouldn’t give my legal advice until the person indicates that they’re happy to use my service as an attorney, whether that is review attorney, negotiator or litigator.

If it turns out that the person that I speak to wants to use my services as a divorce mediator, and their spouse is willing, then it may help for the spouse I had talked to before to reveal any information he or she had shared with me one-on-one. This can “clear the air” for a mediation process. This way each person can consent to mediate with me with full disclosure of all information. Typically, however, I will recommend that spouses interested in divorce mediation bring the other party to their initial consultation so that we can all discuss the process together. Continue reading ›

Divorce Mediation in the Future: Predictions for 2019 and Beyond

December 11, 2018 | Law and Mediation Office of Darren M. Shapiro, P.C.

It’s impossible for anyone to predict the future with complete accuracy, as the world we live in is often a very unpredictable place. However, we can look back at the Window-Mediation-300x200 lessons that we’ve learned over the years and use what we know in the present to guide predictions about the years ahead. That’s exactly what I plan to do with this blog post about mediation in 2019. This blog is conjecture and should be taken as nothing more than my best guess at what will be available in terms of alternative dispute resolution and mediation options for couples in 2019 and the years beyond.

My previous blog post discussed the complexities that we saw in mediation throughout 2018. Many aspects of mediation are likely to stay the same going forward, while other elements are bound to change. For instance, mediation will always be a helpful alternative dispute resolution option for couples who would prefer to avoid things like court-room trials and litigation. Additionally, as we move into 2019 at least, it seems that the grounds for divorces done with divorce mediators or otherwise will remain the same too. As I mentioned in my last blog, all the couples I have worked with during divorce mediation have chosen the no-fault divorce law for their procedure, since the No-Fault law was passed in 2010, while other grounds do remain available. The no-fault solution simply means that it is neither side’s fault, it’s simply the marriage that is irretrievably broken. Fault doesn’t need to be admitted or proven for the divorce to go ahead. Continue reading ›

Long Island Divorce Mediation for December 2018

December 2, 2018 | Law and Mediation Office of Darren M. Shapiro, P.C.

One important thing that we know about divorce mediation in December 2018 is that we can work through the settlement issues with the knowledge of the current laws that are Mediation-Contract-300x200 in effect. This includes the effect of the taxability or non-taxability of maintenance (alimony) and child support for separation and divorce agreements signed before 2019. I know general taxation principles as they apply to divorce and family law, as every experienced matrimonial lawyer and divorce mediator should. As always, however, I give a little disclaimer here and say check with your tax adviser, such as your Certified Public Accountant or tax lawyer, for tax advice as I do not give tax advice.

Sometimes things seem to wind down a little for a Law and Mediation Office as we move towards the end of the year. People tend to want to deal less with their legal issues. Less court appearances are scheduled because of the holidays, holiday parties and vacations schedules. The same is often true on the divorce mediation side of things. So why does it happen? It could be that people do not want to deal with resolving their family law issues during the holidays. People also might want to save their money to spend on gifts, trips and otherwise. At times a couple might know that they need to move on from their marriages but want to keep it peaceful with the family until after the New Year. Others might want to wait to start their new lives and new resolutions in the New Year. Interestingly, I understand that the belief that January has the highest volume of divorce filings is a myth. Maybe people start working towards that in January, or soon after, but historically, according to an article in the Atlantic, August and March apparently have the most divorce filings. Continue reading ›

Can a Judge Defer the Sale of a Marital Residence in a New York Divorce?

November 23, 2018 | Law and Mediation Office of Darren M. Shapiro, P.C.

There are several options when it comes to determining what happens with the marital home in a New York divorce. Of course, the court may award the home to HouseRealtor-284x300 either party and require the party receiving the home to buy out the other spouse. A court may also order the sale of a marital residence, and divide the proceeds using the equitable distribution method. Alternatively, the court could defer the sale of a marital residence either by agreement or by order of the court.

It is not common to see a deferred sale of a marital residence when it is not be agreement. This is because a deferred sale by agreement may require the parties to co-own the house for a set period before selling the home or force the non-titled spouse to wait to receive payment for the home. This presents a host of issues, many of which may be insurmountable for a couple in the midst of a divorce. The deferred sale of a marital residence can, however, be included in a divorce settlement if sufficient thought is put into the agreement and the parties are willing to agree on certain issues.

A court can order that the sale of a marital residence be deferred, absent an agreement between the parties. Typically, a court would only do this for the sake of the couple’s children. For example, a court may consider the following when deciding whether to defer the sale of a marital home:

The age of the children and what grade they are in;
How long the children have lived in the home;
The financial ability of the spouses to obtain housing; and
The economic detriment to the spouse who would not receive the home.

Can a Judge Force the Sale of a Marital Home in a New York Divorce?

November 17, 2018 | Law and Mediation Office of Darren M. Shapiro, P.C.

One of the most significant decisions in a New York divorce is what happens with the couple’s marital home. In most cases, a couple’s most valuable asset is their couple-house-move-200x300 home. Aside from the financial value, there are often other considerations such as the emotional value a house has to one or both parties. In most cases, the couple can work out which party stays in the marital home and what offsets are appropriate. However, if that is the parties are not able to agree, then a judge will determine what happens with the marital home.

Usually, on my Long Island and surrounding area cases, I find that the Judge’s position is that if an agreement about the house is not made, the court will order the house sold and the proceeds divided. Given both the financial and emotional value of a home, though, some might prefer not to sell the house unless the parties desire to do so. However, there are circumstances in which a New York divorce judge will force the sale of the marital home. Particularly when the finances would not allow one spouse to remain in the home, a sale of the home is usually the case.

In New York divorce cases, one of the judge’s most important roles is to preserve the value of the couple’s assets. Indeed, under New York law, a judge is given broad discretion to act regarding the determination of title to the property. Likewise, when discussing equitable distribution, if the court believes either of the parties is wastefully dissipating the couple’s assets, the court may make appropriate rulings. Thus, if retaining ownership of the marital home will result in the dissipation of the couple’s assets, the court can order the home be sold. For example, if the parties are not able to afford the mortgage payment for the marital home because the primary breadwinner in the family lost her job, the court may intervene and order that the home be sold rather than go through the foreclosure process. This is even the case if one of the spouses objects to the sale of the home.

Are Ongoing Health Insurance Benefits Considered Marital Property in a New York Divorce?

November 3, 2018 | Law and Mediation Office of Darren M. Shapiro, P.C.

When a court sets out to divide a couple’s assets in a New York divorce case, the court will not simply split the assets down the middle, but instead it will employ a Outsidequarrelcouple-300x200 system called “equitable distribution.” Under an equitable distribution analysis, a court considers several factors when determining the allocation of assets. Importantly, however, only certain assets that are determined to be “marital property” are subject to equitable distribution. Thus, a party’s separate assets – i.e., those that were obtained before the marriage – will remain with the party to whom they originally belonged.

As a general matter, under the New York Domestic Relations Law, courts will consider assets that were accumulated during a marriage as marital property. Of course, certain exceptions can make the determination of what constitutes marital property fairly complex. For example, a question that often arises is how courts consider pension benefits and the provision of future health care benefits.

Pension Benefits Are Usually Subject to Equitable Distribution

The pension benefits that a party accrues while married will typically be held to be a marital asset that is subject to equitable distribution. The portion of benefits that was obtained before the marriage, however, will not be included as marital property because it was accrued before the marriage.