Should I do a Separation Agreement Before My Divorce?

April 6, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

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-300x200 relationship 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

The Changing Tax Laws on Divorce Maintenance Payments (Alimony) After 2018

January 5, 2018 | Law and Mediation Office of Darren M. Shapiro, P.C.

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 ›

Divorce, Disability Pensions, Pensions, Retirement Assets and Equitable Distribution

June 4, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

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 ›

How Do Nassau County Divorce Courts Handle Attorney Fees Following Legal Separation?

March 3, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

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.

Alimony After Both Parties Move Away from New York

February 23, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

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.

When Can Someone Request Maintenance or Modify Alimony After a Divorce in New York?

February 3, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

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 ›

Should We Try Divorce Mediation By Caucus?

December 24, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

When it comes to using the process of mediation to settle disputes in divorce, I believe in meetings with both sides ofthe 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 ›

How Do You Get a Spouse to Agree to Divorce Mediation?

October 14, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

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’tautomatically 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:

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 ›

Can Divorce Mediation Work in High-Conflict Relationships?

August 21, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Many people assume that the only way to handle a divorce with a high-conflict partner is to buckle down for arollercoaster 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 ›

No-fault Divorce and the Residency Requirement in New York

July 6, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

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.