Articles Posted in Separation

In some cases, divorce mediation can be the best solution for a couple who want to find an amicable way inwhich 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

New York Domestic Relations Law § 236 (B)(3) sets forth that prenuptial and postnuptial agreements are valid and enforceable if they are in writing, the parties subscribe to them, and they are proven in the way required to entitle a deed to be recorded. The difference between these types of agreements is that prenuptial agreements are entered into before marriage, while postnuptial agreements are entered into after marriage.

The agreement can include, among other things, provisions for the custody, care, maintenance, and education of the parties’ children, subject to Domestic Relations Law § 240. § 240 provides that the court has the discretion to enter custody and support orders as justice requires, based on the circumstances of the case, the parties, and the child’s best interests.

In other words, prenuptial and postnuptial agreements in New York can’t conclusively establish child custody or child support. Postnuptial agreements, made after a child is born, may be influential when they address education, child support, and care. However, judges make a final determination on child custody and support based on the child’s or children’s best interests. The terms of an agreement are only enforced if the terms serve a child’s best interests and needs at the time of the divorce.  A separation agreement, however, which is in proper form, can deal with child custody and child support terms.  The difference between a separation agreement and a postnuptial agreement in this context being that either when the separation agreement is made or very soon thereafter the parties must being living apart and intend to do so.   Of course custody, parenting time and child support terms are properly included and should be part of a stipulation of settlement settling a divorce.

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According to the New York Domestic Relations Law, as part of a matrimonial case, such as for divorce, annulment, separation, or obtaining maintenance or equitable distribution following a foreign divorce judgement, the court may award counsel fees. In New York proceedings it is well established that the Court in domestic relations cases has the discretion to award fees depending on the parties’ circumstances, the merits of each sides positions and the complexities involved in the particular case.  As part of a post nuptial agreement, pre nuptial agreement, separation agreement, or stipulation of settlement of a divorce, often times a provision is included about future payment of the other side’s counsel fees by the party that takes a non meritorious position.  In those situations the court will usually seek to enforce the terms of the parties agreement regarding counsel fee applications.  The balance of this blog is about cases that are not covered by counsel fee clauses.

The underlying purpose and rationale behind many counsel fee awards is to make sure that a “needy” spouse has the ability to defend themselves, or carry out legal actions in court. Through counsel fees, the New York court is able to situate both spouses on an equal economic footing when it comes to using legal help and carrying out court proceedings. What’s more, these fees can help to ensure that during litigation, both spouses have equal leverage. The Supreme Court of New York may deliver an order to either spouse involved in the case, requesting them to directly pay counsel fees to an attorney for the other spouse, so as to enable that spouse’s continued participation in the case.  Courts can consider:  type of services rendered; the actual time used; the professional experience and reputation of the counsel; and the respective financial situation of each side. Continue reading

Filing for a divorce, regardless of where you live or what the underlying circumstances may be, can sometimes require some thought to ascertain in which state in this Country you should file. There are rules to follow throughout almost every aspect of the case, from determining where you will be able to file for a divorce, to figuring out exactly who has the rights to what through equitable distribution. Before you can go ahead with filing for a divorce, regardless of the process chosen to sort out the issues to dissolve your marriage, be it mediation, litigation, or collaborative law, you must ensure that you meet the residency requirements for a divorce case to take place in New York. After all, throughout the United States, each state has its own jurisdiction, and you must apply for legal action in the State that applies to you.

Those who apply for divorce without meeting the residency requirements for New York may find that their cases are dismissed. To apply for a divorce within New York, it is crucial for at least one party to meet with one of the following requirements regarding residency as is outlined in the New York Domestic Relations law:

  1. The ceremony for the marriage of the couple seeking a divorce must have been performed within the State of New York, and at least one of the spouses involved had legal residence within the state of New York for at least one year continuously prior to the beginning of the action; or,
  2. Both spouses lived and held themselves as husband and wife within the State of New York, and one (or both) has been considered a resident for at least one year before the commencement of the action; or,
  3. The reason (grounds) for the divorce took place within New York, and one of the spouses has been a resident of New York for at least one year before the action commenced; or,
  4. The reason for the divorce took place in New York, and both spouses were residents of New York at the time that the grounds for divorce occurred; or,
  5. If both spouses were not married within the State of New York and were never living as a “husband and wife” couple within the state, or the reason for the divorce didn’t occur within the state, either spouse must have lived within New York as a resident for a minimum of 2 years before the case is filed.

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I recently wrote about the revisions to the New York maintenance (alimony) law which was passed in September 2015.  It became effective for the temporary maintenance provisions on October 25, 2015 and for durational or permanent maintenance (the maintenance ordered for some period of time after the divorce if there is any) it will be effective as of the end of January 2016. This article will be about the narrow issue if maintenance should exist when a spouse/former spouse is living with a new romantic partner. The law about this situation is contained in New York Domestic Relations Law Section 248 (DRL 248) which also received some changes in the recent law update. It seems, mostly, that section of the law remains intact. The language, though, was updated to be more gender neutral and reflective of our modern times.

The current old law, which is effective only until January 23, 2016, states that when the wife remarries the court must terminate any support payments (not child support) that are to be made by the Husband for the Wife. The antiquated language here I think is apparent – “Husband” and “Wife”. While courts have in recent years read gender neutrality into these terms, those terms are changed in the new law to “payor” and “payee”, thus recognizing that either spouse might need to pay maintenance. The current/old law goes on to say that the husband can make a motion, and the court in its discretion may grant the motion, for termination of support payments for the wife if the husband can prove that the wife is habitually living with another man, and holding herself out as his wife, even though they are not married. The updated law, again, modernizes the terms to “payor”, “payee” and “spouse” (which is also reflective of the fact that same sex couples can now marry). Continue reading

 Mediation is one of the most popular legal solutions available when it comes to negotiating the terms of a divorce. As I have stated in various blog posts before, I myself am a huge advocate of divorce mediation (and collaborative law) when it comes to settling disputes between couples that are willing to take an alternate route. For the process of divorce mediation to work as it should – both of the parties involved in the case must have some willingness and exert at least a little effort. Mediation is a voluntary process, and neither party can be forced into it – making it a highly different approach to litigation or the adversarial divorce case.  Most likely, the couple pictured above, however, would benefit by utilizing some of the tips contained within this blog.  Please consider the picture then, advice on what not to do.

In the traditional court centered divorces, a divorce proceeding can be started within the court without the consent of the other party, as one side and their lawyer will draft the initial pleadings, file them, and serve them to the other side. In New York, the other spouse involved will then have twenty days to “appear” within the case, which then makes both sides participants in the adversarial divorce. If your goal is to settle your divorce case “amicably”, then mediation is potentially the best route to pursue. In divorce mediation, yourself and your spouse – or in certain cases, the two of you and respective lawyers, utilize a mediator that will help you to resolve and discuss the issues in your divorce. Though the mediator will not make your decisions for you, they will serve as a facilitator to help you determine what is best with your spouse. Continue reading

Preparing for Divorce Mediation

Hopefully your mediation won’t look like this picture (at least because the mediator should be in the picture too), but following these suggestions might help for a smooth process.  For some people, mediation will be the preferred legal process that they can take to access the results that they want, while maintaining an agreeable relationship with other parties involved. Mediation can be a possible way to ensure that your relationship ends in a healthy way, promoting an easier future for yourself, and any children involved. However, even if you have decided that professional mediation is the ideal option for you, this doesn’t mean that you won’t be nervous about your first session. The chances are you’ll find yourself wondering what you should expect, how you should prepare, and what might be expected from you.

The first thing to recognize is that the mediation process is intended to help people manage or resolve disputes by reaching mutual agreements about a situation. In order to reach an agreement with the other party involved, you will need him/her to cooperate with you on the pursuit of conclusions that are beneficial to both of you. Mediation is not a debating practice that requires individuals to prove that their stance is the right one. You don’t need to convince the other party to think differently or ignore what he or she thinks is important. The mediation process is not intended to assign blame, find fault or punish any party, and it must be done on a voluntary basis, otherwise it is less likely to end in a successful outcome. Continue reading

Approaching and Understanding the Emotional Aspects of Divorce

In the materials from my mediation training at the Center for Mediation and Training (which this blog article summarizes and is based upon), and as my years of practice as a matrimonial attorney and mediator confirmed, I learned there are the following emotional parts of a divorce. Divorce can be a significant life event in any circumstance. Statistics have frequently shown that even in a divorce that appears to be relatively peaceful, the parties involved can take between three and five years to recover from the ordeal and feel comfortable in their lives again. Just like any other life crisis, divorce can be a process that stirs up unresolved issues and feelings from the past, adding them onto present emotions and creating an intense experience which can translate into outward behavior.

Adjusting to divorce can happen in a number of predictable stages that cannot be rushed or avoided. Similarly to any other developmental process, the successful resolution of each stage will depend fundamentally on the resolution of the preceding one. An important thing to keep in mind when you are dealing with the impact that a divorce has had on you, is that your whole family system will be affected. What’s more, the process of adjusting to a divorce can differ depending on where your current family is in its life cycle. For example, a divorce can feel a lot different to a family with adolescent children than it would to a family with very young children. Continue reading

I am a big fan of alternative dispute resolution such as mediation and collaborative law. Lawyers in New York are guided by the Code of Professional Responsibility. When I am in my role as a mediator, however, I am not acting as a lawyer at that time. Although I am both a matrimonial / family law attorney and also a mediator, mediators do not have to be lawyers. To guide mediators, in 2005 The American Bar Association and the American Arbitration adopted standards of conduct. The purpose of this blog entry is to summarize these standards and how they might apply to a New York Divorce Mediation.

The first standard is the principle of self determination. What this means to is that the decisions in mediation are to be made by the parties to the case, not the mediator. The mediator’s role is to guide and educate about the different options to settle the issues. For example, the mediator can explain different options for child custody like shared custody, joint legal custody, sole custody and joint custody with spheres of influence. Please click around my website or other blog entries for more information about any of these topics.

The second standard is that the mediator should have the qualifications to be able to properly handle the mediation be it from education, experience or training. In the context of divorce and family law this means: having matrimonial and family law knowledge; understanding how conflict impacts families and children; mediation process training as well as experience; and the ability to see how diversity and backgrounds impact people and situations. Mediators should be able to answer questions and provide information about their qualifications to potential mediation participants. Continue reading

Separation agreements, pre-nuptial agreements, post-nuptial agreements, and stipulations of settlement may largely contain the same contents, and serve a lot of the same purposes, but vary in the timing that they are made. One purpose is invariably to define the respective rights of each marital partner in the event of a dissolution of the marital partnership. As a divorce mediator, New York City and  Long Island divorce lawyer, marital agreements are a big part of my practice.

Pre-nuptial agreements are made prior to the marriage.  Post-nuptial agreements are made after the parties are already married.  Separation agreements are a form of a post-nuptial agreements but have the added element that the husband and wife may become legally separated after the execution of the document.  Stipulations of settlement of a divorce are made after a divorce case is filed to settle the issues necessary to be decided to get the parties divorced.

Pre-nuptial agreements can help couples enter into a marriage with the knowledge that  their rights have been defined in the unfortunate event that it doesn’t work out.  As a mediator, matrimonial and family law attorney, pre-nuptial agreements are an opportunity to work with a party or couples in love that could stay married forever.  The stress of the financial uncertainty that could result from a divorce can be removed.  Pre-nuptial agreements commonly identify how the property that the parties have already, going into the marriage, will be split up or retained as separate property, in case of divorce.  It can provide how much maintenance (alimony), if any, there will be upon a divorce.  Child custody, parenting time and child support matters become trickier to try to outline in a pre-nuptial agreement since a court always has discretion when it comes to what the custody and parenting time arrangements will be with a child.  Also, the dissolution of a marriage would in most instances qualify as a substantial change of circumstances to look at what custody and parenting time arrangements are, despite an earlier agreement, in the best interests of the children moving forward.  Still, the agreement could be used as a starting point on these issues and might prove influential if there is a dispute about the determination of the matter in the future. Continue reading