Articles Posted in Separation

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

In previous blog posts, we’ve discussed the benefits of separation agreements, and how they can affect the divorce procedure in New York. When you’re unsure whether you’re ready MatureBusinessPeople-300x200to go through with a full divorce, or you need to come to terms with your partner about your future before a divorce takes place, a separation agreement can be a useful process. Whether addressed as part of a divorce mediation process or negotiated between divorce attorneys, these agreements allow clients to lay out the details of their upcoming divorce as quickly and efficiently as possible.

If a couple negotiates a separation agreement and signs the appropriate documentation, they will have more options available to them in the future. For example, if a couple decides that they no longer want to get divorced and instead want to pursue opportunities to fix their relationships, they can simply nullify the separation agreement and go back to living together as normal. On the other hand, if the spouses involved in a separation agreement decide that they do need to get a full divorce, they will be able to apply for an uncontested divorce as all the issues were ostensibly settled in the separation agreement. This means that they won’t have to argue about issues like equitable distribution, child support, child custody and maintenance in court. Continue reading

In recent blog posts, I have discussed the concept of separation agreements, used both as a way to give couples a break when they’re not sure whether they want to Mediating-Couple-Bright-Window-300x200end their marriage and as a precursor or first step in full divorce experience that ensues immediately thereafter. A separation agreement is a document that outlines various answers to questions that a couple might have at the end of their marriage. For instance, your separation agreement might dictate what’s going to happen to your family home when your divorce is final, or who will be responsible for having custody of the children.

Because separation agreements require both parties to agree on what happens when their marriage comes to an end, there is a lot of negotiation involved. As a divorce mediator, I’m able to help parties collaborate during this complicated process and discuss the things that are most important to them. For instance, I can provide a safe environment, where both parties can come together to discuss everything from equitable distribution to visitation or parenting time agreements. Acting as a mediator, my job won’t be to provide any legal counsel or guidance, but to provide instead a neutral space where decisions can be made about your future after marriage. Continue reading

In a previous blog post, I spoke about separation agreements, and how they can sometimes be helpful, regardless of whether or not a couple decides to progress with Mediation-Therapy-pic-300x200their divorce. While there doesn’t necessarily need to be a legal agreement written up for people to start living apart and to say how parties should act during their separation.  These kinds of agreements, however, can be helpful in some circumstances legally. Many couples find that going through the details of their separation with a divorce attorney or divorce mediator, like me, can help them to protect their rights, improve the predictability of the experience and eliminate unnecessary arguments.

Frequently, separation agreements are particularly useful when the two parties considering divorce are involved in attempting to work out their finances. For instance, if one partner has been raising the couple’s children up until now, and hasn’t had a job, and the other is the wage earner, separation agreements may help to ensure that the needs of the family continue to be met. Some of my clients also find that separation agreements are useful if they haven’t yet decided whether they’re ready to officially dissolve their marriage with a divorce. Discussing the details of how you’ll live after the divorce may help you to decide whether completing the process is the right thing to do. Continue reading

It’s common for couples to think of separation agreements and divorce as two separate options when it comes to ending a marriage. When you decide that your MediationPictobeusedlater-300x200relationship can no longer continue as it is, you may choose to draft a separation agreement to determine how you and your ex-spouse will live your lives outside of the marriage. A separation agreement isn’t just an alternative to a divorce. Indeed, it’s possible to go ahead with a divorce or full dissolution of a marriage once your separation agreement has been drafted and signed. What’s more, by entering into a separation agreement, you may find that the divorce procedure itself is more amicable, straightforward and simple.

The formation of separation agreements is a kind of negotiation that takes place usually outside of the court setting.  The settlement document that we enter into after mediation sessions is in most instances a separation agreement.  Most of my mediation couples choose to and can get an uncontested divorce immediately after entering into the separation agreement.  Separation agreements can also be made outside of the mediation setting through lawyer to lawyer negotiations or lawyer to opposing party negotiations if the other side chooses to represent themselves.

Like the mediation process during a divorce, the concept brings both parties together for a discussion of crucial concepts like equitable distribution, spousal maintenance, parenting time, and more. For many people, separation agreements feel a lot less stressful than a standard divorce. The court will not be involved in the preparation of the separation documents. What’s more, the couple will be able to maintain more control over their negotiation, without the consistent input of the courts. With the help of the lawyers, couples drafting a separation agreement can come to terms on what they would like to happen when their marriage ends.

Separation Agreements & Uncontested Divorces

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Divorces may surge in 2018 due to the new tax law that was just passed.  The end of a marriage can bring several concerns to the front of mindfor people in New York, and across the United States. After all, divorce isn’t just an emotional issue for everyone involved, it’s also a financial quagmire. Beyond the expenses of a divorce attorney or child custody lawyer, those seeking a divorce will also need to think about how they’re going to dissolve the family household and transition to two. This means making decisions about everything from parenting time and visitation, to maintenance payments (otherwise known as alimony).

The guidelines that are set in place to help divorce lawyers and courts come to terms with the amount of maintenance that should be paid to a spouse in certain circumstances are designed to make the process as simple and streamlined as possible for everyone involved. However, thanks to the recent changes in tax law that was just signed into law in December 2017, the considerations involved with planning a divorce are about to change. Continue reading

Equitable distribution is one of the matters that I deal with most often as a divorce attorney for New York and LongIsland. 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 actualfiling 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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The 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, anex-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