Articles Posted in Mediation

Addressing your Most Frequently Asked Divorce QuestionsLawyer-with-Judge-300x200

As a divorce attorney, I do my best to keep my clients informed and educated about each step of their divorce procedure. Often, this means answering some of the most common questions that might arise about the complications of marriage dissolution. To help people facing family law issues to address some of the most typical concerns surrounding divorce, I’ve put together this list of some frequently asked divorce questions that I have answered in my previous blogs and web site pages.  Child custody, parenting time, child support, maintenance (spousal support) are important issues that need to be decided in a divorce as well but I do not discuss them in today’s blog.

Question 1: What Are New York Divorce Residency Requirements?

Parties to a divorce in New York must meet the residency requirements for the state, or their case may be dismissed. To apply for a divorce, residents must meet with the following requirements:

  • The marriage ceremony must have taken place in New York, and one spouse must have had legal residence for at least one year prior to action taking place.
  • Both spouses lived as a married couple in New York, and one or both residents has been considered a resident for at least one year prior to action taking place.
  • The grounds for divorce took place in New York, and at least one spouse has been a resident for at least one year prior to action taking place.
  • The grounds for divorce took place in New York and both spouses were residents at that time.
  • At least one spouse was living in New York as a resident for at least 2 years prior to filing the case.

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As a divorce lawyer for the regions of Long Island, the surrounding areas and New York, I like to inform my clients Senior-Couple-300x212that I’m capable of offering them a range of solutions when it comes to dissolving a marriage. While some people will find that litigation is their best option (and I do litigate), others will prefer to access the often time, and cost-effective solution of mediation instead. As a trained mediator, I can offer clients a more collaborative experience when it comes to settling divorce issues.  I routinely litigate, as well as settle cases under the more traditional system, which is set up as an adversarial system (ie.  Plaintiff versus Defendant).  I also work as a mediator or a review attorney for those that choose divorce mediation as their process to dissolve their marriage. Here, I’ll address some of the common questions I encounter about divorce mediation.

Question 1: How Can I get My Spouse to Agree to Mediation?

Often, both spouses need to feel comfortable in a mediation setting for this process to work. As such, my clients often ask me how to convince their spouse to take part in mediation as an alternate source of dispute resolution. Often, I find that the best option is to simply approach the topic from an angle that both of you understand. For instance, if you’re concerned about money, you could acknowledge that mediation is often cheaper than litigation. Alternatively, if you want to defend the children from an emotional process, mediation is often a much calmer approach to divorce. Continue reading

gated homeWhen two spouses get a divorce in New York, they must address multiple complicated issues, including the equitable distribution of marital property. This often includes the marital home. A divorce agreement, or a court order granting a divorce, usually includes provisions for the disposition of the marital home. The sale of a home might not be practical or even possible at the time of the divorce for a variety of reasons. What happens when a home is to be sold after a divorce? Should the person paying the mortgage get credit for the full amount of the payments or some other amount? As for the person waiting to receive their share of the sales proceeds, should they receive interest in some form? These questions have no easy answers, but they are worth exploring.

Section 236(B)(5)(a) of the New York Domestic Relations Law requires a court to resolve all issues of marital property distribution in, or prior to, a final judgment of divorce, except for issues regarding which the parties have entered into an agreement. Postponing the sale of a marital residence requires careful planning in the hopes of avoiding a return to court. A court is unlikely to approve the future sale of the home without both parties’ agreement, along with a plan for either selling it or otherwise disposing of one spouse’s marital property interest.

Divorcing spouses have several options when postponing the sale. One spouse may buy out the other spouse’s share of the marital interest, either in cash or with a promissory note. This arrangement, along with most other postponements, creates potential problems with a mortgage lender. Any postponed sale means that one spouse must continue making mortgage payments, while the other spouse remains liable for missed payments.

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Different people approach divorce from different angles. While some are limited to litigation, others will prefer to Mediation-Coupleexplore alternative solutions like collaborative law and mediation. I offer mediation to couples as a way of helping them to sort through the various issues that commonly arise during a divorce or separation. As a mediator, I try to ensure that the discussion is calm, constructive, and open, so that both parties are able to have their say. Because of this, mediation is often seen as a very flexible process, and it can be used to address matters regarding children, visitation, and custody rights, or consider concerns about the financial side of dissolving a marital relationship.
Using divorce mediation properly is all about understanding what you’re getting involved with, what the benefits are, and who you need to be in contact with. It’s important to remember that mediation isn’t there to deal with your relationship problems or get you back together, but instead assist you in agreeing on the issues that will allow you and your ex-partner to move on with your separate lives. Continue reading

The first thing to understand about divorce – is that no matter how you go about it, you’re probably going to face Happy-Couplesome emotional complexities and other personal difficulties. Divorces are a difficult process – after all, most couples enter a divorce after years of trying to make it work with their spouse, and find themselves suddenly considering the prospect of single life all over again. It can be extremely difficult to regain your confidence, find financial stability, and make sure that you’re ready for the change in lifestyle that lies ahead, but that doesn’t mean that everything about divorce is negative. As I often tell my clients – it’s up to you to decide when your marriage is over. If you simply can’t be happy in the relationship that you’re in – for any reason, then divorce may well be the answer.  My last blog article discussed some of the negative, as well as positive aspects of divorce and separation.  This article will focus on the up sides.

After you receive those final divorce papers, it’s easy to find yourself mourning the loss of your relationship, but it’s also important to focus on the positives that could come your way now that you’ve removed yourself from a potentially toxic situation.

Divorce Could Make You Happier

I often find that it can be difficult for some clients to believe that they may enjoy a happier life after their divorce is over, but I frequently see ex-spouses moving on to live more peaceful, fulfilling lives once their divorce is settled. Though the initial feelings that you experience during the onset of a divorce may center around a fear of the unknown, that anxiety and sadness will in most instances eventually get better. Continue reading

Nobody gets married with the belief that a few years, or even decades, down the line they’ll be considering visiting a Business-People-Fightdivorce lawyer. In fact, most couples get married with enthusiasm and hope for an ever-lasting relationship. Unfortunately, marriage can be a difficult construct to maintain, and can break down in ways that we are unprepared to deal with. While some problems in a relationship can be overcome, others lead to the dissolution of a marriage that is impossible to repair. Rather than continuing to live in a painful or unhappy situation, this is when many people consider divorce.

Of course, no matter how bad the situation may seem, there’s always a nagging question in the back of your mind when you’re considering divorce – a question that many of my clients ask me: “How can I know for sure that divorce is the right choice?”  This is not a question that I can answer for them.  Many clients may hope for a checklist of features that can convince them whether divorce is the right step forwards or not, the truth is that dissolving a marriage will always be a personal decision. Only the people within a marriage can know whether it is right for them to divorce or not.  In many instances chances are you’ll have a lot of considerations to address regarding whether to divorce or not.  This article will touch upon some of the more negative aspects and mention the positive.  My next article will enumerate the benefits that many find from moving on from what they view as a negative marriage.  Continue reading

When it comes to using the process of mediation to settle disputes in divorce, I believe in meetings with both sides of Caucus-lunchthe dispute together with the neutral mediator.  Therefore caucusing is not the first method I would employ if I do at all in resolving issues with a couple. A caucus in family law and divorce mediation takes place when private meetings between each participant and the mediator are held. Depending on the circumstances, a caucus may be a one-time occurrence, something that happens several times, or something that takes place throughout the full course of the mediation. In my opinion, usually separating the clients involved in a dispute resolution is a disruptive and problematic process that removes some of the empathy and understanding that goes into making mediation work. On top of that, the use of private sessions can frequently make clients feel as though they are being conspired against, as during high-conflict divorce cases, emotions are often running high, leading to feelings of anger and paranoia.

Of course, there are exceptions to the rule in most cases, and in some circumstances, caucusing may be considered as a useful solution to a divorce mediation problem. For instance, one goal that I try to keep in mind while working as a divorce mediator is to help de-escalate conflict and assist clients in overcoming difficult emotions. Ideally, this would mean allowing each spouse to discuss their issues face-to-face, however in some instances one spouse may refuse to reveal something in the presence of the other client – particularly when physical violence has existed in the past or other threats may be in place. Sometimes, even when communication appears to be honest and open, divorcing spouses may struggle to break free from old patterns of communication, which leaves them unable to speak up about important concerns.

When Do Mediators Consider Caucusing?

When divorce mediators choose to utilize caucusing, I believe that they should only do so because they have considered all of the circumstances and determined that it’s the best approach for making progress. After all, providing a caucusing opportunity opens up possibilities for suspicion developing amongst parties – thereby risking the appearance of neutrality and transparency of the mediation process. Continue reading

In the world of divorce and family law issues, there are many different types of dispute resolution available, from BusinessManAloneclassic negotiations, collaborative law, litigation, and of course – mediation. When a couple opts for mediation as a way of settling their divorce concerns outside of the courtroom, they generally come together as two opposing parties with one neutral party in the middle – the mediator. However, some people perform the mediation process differently – offering their clients the opportunity of “caucusing”.  In caucus-style mediation, the mediator provides separate meetings for both parties involved in the divorce – while the other party is absent. Some professionals use this method once or twice during the mediation to help resolve significant issues, whereas others maintain the caucus format throughout the full mediation, shuttling backwards and forwards between clients.

For the most part, I have not employed caucus mediation (although in next week’s blog I will discuss times when mediation by caucus might be a good idea), but I do believe it can have some utility to handle certain situations which can arise with mediating couples.  This week’s blog will outline the reasons I initially approach a divorce mediation without the thought we will have separate caucus sessions to work through the issues that need to be settled in a legal separation or divorce mediation.     In my mediation sessions, I explain that everything is done with reference to both parties, both parents, or both the husband and wife – together. This helps the people I work with to see me for what I am – a neutral party within their dispute resolution that is there to help them iron out an agreement which can be used to make a binding legal contract.  In most instances (we can mediate issues other than just divorce, such as custody, support, etc.) that contract is a settlement agreement that can allow them to get an uncontested divorce either right away or at some future date.  While there may be instances wherein caucusing is the right move (something I’ll address in my next blog), I am wary to employ the caucus approach at least initially.

Caucusing Can Raise Issues

Perhaps the most significant problem with caucusing is that it removes the intimacy from the negotiation technique. Rather than allowing for both of the parties to be directly involved in the resolution of their various arguments and concerns, the mediator is forced to run back and forth conveying offers and suggestions. There’s no room here to discuss matters thoroughly and examine the different opportunities for negotiation – which means that by the end of the mediation, one or both spouses might leave with questions. At the same time, the caucus method of mediation can shift the position of the mediator so that he or she no longer appears to be neutral within the case. When all of the conversation with the other side of the divorce takes place out of sight of the other client, most clients can begin to feel as though the mediator and ex-spouse are plotting behind their back. Even if this isn’t true, it’s worth noting that divorce and family law issues are emotional and can prompt feelings of paranoia and anger. Continue reading

When it comes to equitably dividing the assets that have been gathered during the course of a marriage in a divorce – formal coupleretirement assets from pensions to IRAs to Annuities are important ones. Though many couples are busy fretting about who’s going to get the house or how custody agreements are going to be determined – there’s also something to be said for the importance of properly splitting retirement accounts and plans. After all, depending on the income of either spouse and the age of those spouses when the divorce takes place, retirement savings can frequently be one of the most valuable assets that any person owns. As such, we regard them as a very important matter to consider when figuring out which assets should go where for the best interests of both parties.

Unfortunately, the issue with retirement savings is that they have their own unique intricacies. These packages of money are subject to various complicated factors, such as tax implications, and this can mean that people struggle to handle them appropriately when figuring out how to divide assets. As a family lawyer, I’m left to do what I can to guide my clients carefully when they’re making decisions about financial plans and the potential options that might be available to them during the divorce.

Do You Have to Share Your Retirement Savings?

This is a question that many people have when they approach me with matters regarding the distribution of assets during a divorce.  The short answer is probably yes to the extent that the assets were earned during the marriage.  Portions of retirement assets which were earned before the marriage or after the end date of the marital estate (often the filing date of the divorce), are usually separate property and not shared on the other hand.  People often wonder whether they can avoid sharing their savings with their soon to be ex-spouse in some way. However, most of the time, if you are going through a divorce or legal separation and your spouse or you have some money sitting in retirement savings accounts, then you will be required to share these assets amongst yourselves in an equitable fashion – either through negotiation with collaborative lawyers, an agreement made in mediation, settlement negotiations or through litigation in which a decision will be made for you by the courts of New York if your case is one of the few that does not settle before the ultimate trial. In certain cases, the assets that have built up within a retirement savings account may be awarded to one single party – but this only takes place when specific circumstances are in play. Continue reading

Divorce and the Marital Residence

Divorces often aren’t easy. I have spent a number of years now guiding clients through the complications of divorce throughout Long Island, and New York.  I’ve seen very few cases, although they exist, where there is a big dispute over lower priced property like furniture.  Often if there is a dispute over assets it involves higher priced items like the marital residence. For most couples undergoing divorce, the biggest shared asset to consider is the family real estate, marital residence or former matrimonial home, as it is referred to in legal circles. The family home is an emotive subject, and often the largest asset to share amongst parties – though investments, businesses, savings, retirement assets and pensions could be worth more or be considerable assets too.

Although it’s possible to leave the concerns of asset distribution to a judge – I often find that this leads to dissatisfaction for both spouses involved. In most cases, it seems that couples are best served when they exercise their right to come up with personal solutions themselves.  My office gets involved with litigated matters, settlement negotiations, and alternative dispute resolution like mediation and collaborative law.

Agreeing on an OutcomeHouse Jealousy

I often find that if both parties within a divorce still have a civil relationship, and would prefer to end their marriage with a simple, clean, and quick break – selling the property might be a good idea. The only issue that presents itself here is that the individuals involved will need to think about how the proceeds from the home are going to be divided between spouses. Regardless of how you choose to break up the family home, it’s important to remember that if you can agree to a solution using mediation or collaborative law, you can often find a solution that both parties can live with. If the attempt to come up with a solution outside of the courtroom fails, like through settlement negotiations between the lawyers on a case, then the judge presiding over the divorce case in New York will need to make a determination based on existing facts and laws. However, that process will remove the parties’ ability to create a better arrangement between themselves – sometimes causing both parties dissatisfaction with the outcome. Continue reading