Articles Posted in Separation

Equitable distribution is one of the matters that I deal with most often as a divorce attorney for New York and Long CoupleShakeHands-300x204Island. Though all the intricacies involved in equitable distribution can be a concept that’s difficult to understand without a background in family law, it can become more challenging when an individual is facing the concerns of splitting unique elements, such as retirement benefits.

It’s relatively well know that the marital portions of retirement plans like 401ks, pensions and deferred compensation plans,  are typically subject to equitable distribution in the case of a divorce. However, determining the right course of action can become more complex when it comes to disability pensions. After all, the divorce lawyers and the New York courts in cases of disagreements need to determine whether the asset is one that was accumulated during the marriage and what is appropriate as far as equitable distribution, or something that should be regarded like a personal injury award. Continue reading

 

Until “no fault” divorce became possible in the state of New York in 2010, couples wishing to file for divorce typically went through a process that included a period of separation prior to the actual Sophisticated-couple-fightfiling of a summons for divorce. Although legal separation is no longer technically required in New York, some couples still choose to follow this procedure or sign a separation agreement, in order to make sure all the issues are settled, and then immediately file for divorce on the no fault grounds without waiting.

Spouses who enter into a period of formal separation must do so through a written separation agreement, which addresses financial issues such as temporary child support and pendente lite spousal maintenance (aka “alimony”) while the parties are living separately.

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wedding ringsThe Uniform Interstate Family Support Act (UIFSA) and its amendments limit the modification of child and family support orders. The purpose of developing this uniform law was to get rid of multiple lawsuits dealing with child support and alimony payments across state lines. UIFSA has been adopted in some form in New York and every other state.

Under New York Family Court Act section 580-205, New York courts that issue a spousal support order under New York law keep exclusive jurisdiction over those orders throughout the existence of the support obligation, even when both spouses move out of state. That means that only New York courts can enforce this obligation.

New York courts cannot modify spousal support orders issued in other state courts that also have continuing exclusive jurisdiction over a spousal support order under their own state laws. Once a state has issued a spousal support order, only that state can modify the order, even if neither of the parties continues to live in that state.

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In the state of New York, it is possible for a spouse to request maintenance, or a modification to maintenance that has already been awarded under very specific circumstances. Crucially, an woman-with-moneyex-spouse cannot simply request additional maintenance because they believe that the first award was unfair. During my time as a family and divorce lawyer, I have seen cases in which an ex-spouse has requested a modification of maintenance payments without the correct proof to show that such an alteration is necessary. If a plaintiff cannot produce any evidence that they are suffering from financial hardship, or that their income, assets, or job status have changed, then there is often no need for the court to hold a hearing regarding a change in maintenance. According to how the  Domestic Relations Law is applied in New York, if a party wishes to modify a maintenance obligation that was set forth by stipulation that was incorporated, but not merged into the judgment of a divorce, that party is responsible for showing a substantial change in their circumstances that warrants such modification, ie:  extreme hardship.  The standard is slightly relaxed when the obligation comes from a court order or judgment.

People are free to alter what the default law is by including specific language in their agreements.  For example, without specifying that maintenance is to continue upon remarriage of the recipient spouse, maintenance should end upon the new marriage.  Where either the ex-husband or wife wants to change or modify the amount or duration of the alimony, now known as maintenance, set forth in a divorce, that person needs to demonstrate a substantial change of circumstances that merits the consideration of maintenance again.  The cases stand for the proposition that the change can be financial hardship, but extreme financial hardship is usually what must be shown.  The desire to get more or pay less money alone is not enough.

The New York court considers changes in circumstances by measuring the scenario that a spouse is in at the present time, against the situation that was presented during the original court order. When no evidence representing a significant change has been provided, then a court does not need to have a hearing on maintenance, as there is nothing to evaluate.  A situation that might qualify to look at maintenance again is a financial emergency such that one of the parties is at risk of becoming a “public charge”.   The presence of sudden huge medical bills or another disaster that requires additional support or a decrease in the support to be paid might be a factor to consider modifying the prior award. 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

When you and your spouse agree that it might be time to consider a divorce, you’ll discover that there are a number of different routes available for you to choose from. Divorce doesn’t OlderCoupleautomatically have to be about stressful litigation – it can be something that you come to terms about collaboratively, with the use of mediation. Mediation is a flexible process that can be used to help you sort out existing problems regarding the financial results of your divorce, or what needs to be done about child custody and parenting time. Unfortunately, just because one spouse decides that mediation may be the right call for their divorce needs – doesn’t mean that the other spouse will agree.

Sometimes, simply broaching the topic of mediation with caution and patience is a good way to get started in encouraging your spouse to agree to an alternative form of dispute resolution. After all, divorce is easily one of the most uncomfortable experiences a person can go through. Although you might be getting a divorce, that doesn’t mean that you shouldn’t be mindful and respectful of the other person’s feelings.

Approaching the Topic on Neutral Ground

A good way to encourage a reluctant spouse to reconsider the option of mediation, is to approach the subject from a position that is important to both of you. For example:

  1. Consider the Children

Make sure that your spouse understands that through mediation, you can reduce some of the discomfort typically associated with aggressive court-based battles and litigation. This can be beneficial to the future relationships that both of you maintain with your children. What’s more, throughout the mediation process, you will both be in control of any decisions made about the support and parenting of your children – meaning that you can work together to fashion an agreement that works for both of you. Continue reading

Many people assume that the only way to handle a divorce with a high-conflict partner is to buckle down for a Sophisticated-couple-fightrollercoaster ride of litigation and court appearances. However, one point of view is that this just leads to additional conflict, and a lengthy divorce procedure that can cost a lot in terms of financial input, and emotional sacrifice. During my time as a professionally trained mediator, I have helped couples from a range of different backgrounds and surrounding circumstances to discover an agreeable solution to what may seem, in their eyes, to be an impossible problem. One thing that I have noticed in my experience is that although the mediation process is obviously easier, and less demanding when it’s launched between a pair of ex-spouses who still have a level of communication and amicability between them – that doesn’t mean that the system only works in cases of no-conflict divorce.

There are situation of course, where mediation is not possible, although in almost all circumstances, it is possible to achieve a more lucrative, and beneficial divorce procedure when a cooperative process is embraced – instead of a combative one. This means that it may be worth considering all of the options, before you simply assume that your “high conflict” divorce is limited to litigation.  After all, if mediation and litigation are both avenues that lead to arguments and disagreements between you and your ex-spouse, doesn’t it make sense to attempt to resolve those arguments with an impartial expert before spending time, money, and energy on aggressive litigation? Continue reading

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Residency requirements to obtain a divorce exist so that the person filing for divorce can’t simply choose the state with the laws they want, move to that state, and then sue for divorce. Those who move to New York without their spouses cannot immediately sue for divorce on the grounds that their marriages have irretrievably broken down. They must wait two years, at least according to at least one trial court in New York.  Whether Appellate Courts would agree and come to the same conclusion is an open question but this article will relay how the trial court came to it’s conclusion.

In Stancil v. Stancil, the court considered whether New York’s no-fault divorce statute created a cause that would reduce a divorcing spouse’s residency requirement from two years to one. In New York, either spouse must live in the state continuously for two years or continuously for one year when certain conditions are present. Under Domestic Relations Law § 230 (3), one condition for meeting the latter requirement is when the cause for the divorce happens within the state.

In the case, the husband lived in Virginia and objected to having a divorce in New York, since the wife had only lived there for 14 months before filing. The wife argued that the divorce could proceed in New York because the basis for the divorce was the irretrievable breakdown of the marriage, and this was a cause for the divorce that happened within New York.

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wedding-rings-1567042-e1462307399849The goal of divorce mediation is for a couple to reach a settlement on one or more issues related to their divorce. To that end, a neutral third party known as a mediator helps each side understand the relative strengths and weaknesses in their position and tries to move them closer to a consensus. While neither party may get exactly what they want, they try to come to an agreement with which they can both live. Often, mediation allows for a better outcome than litigation, and it can be easier on a couple’s children.

If an agreement is reached at mediation, it may be formalized in a separation agreement. Courts treat this agreement the way they would treat other contracts. Although a neutral third party may help the parties reach a different outcome than what a judge would have decided, the court will treat the agreement seriously, except in certain circumstances.

In Ruparelia v. Ruperalia, a husband and wife were married in 1994 and had three children. The husband was a doctor, and the wife had a Master’s degree in social work. In 2011, the couple experienced significant discord, causing them to participate in divorce mediation. During the mediation, they reached an agreement as to asset distribution, spousal maintenance, and child support. These agreements were formalized in a separation agreement, executed in the summer of 2011.

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In some cases, divorce mediation can be the best solution for a couple who want to find an amicable way inToo Late Mediate which to end their relationship. It allows individuals the opportunity to settle disputes that typically arise in the instance of divorce, outside of the discomfort of a court-room setting, and promotes a less formal, yet often effective way to overcome and negotiate differences. However, the success of your mediation will not only depend on your willingness, as a party of divorce, to negotiate, but also the skills, techniques, and experience of the mediator you are using to guide you through the process.

Although in most mediations, the legal system only has a minimal amount of involvement, it is still a legal process that benefits from the use of a professional with extensive knowledge of matrimonial and divorce law. Ultimately a court needs to review the papers, approve the agreements and sign off on any divorce judgment. Mediation should provide a structured format in which friction can be minimized during a spousal settlement conversation. Mediators are not judges, arbitrators, or referees, and they cannot make decisions on any party’s behalf about important concerns. However, what they can do is offer insight as a neutral and impartial third party, helping disputants to reach a compromise that they both find acceptable. Continue reading