Separation

What is collaborative divorce in New York?

December 10, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

Collaborative law is a process where couples, and their lawyers, agree to settle their differences without the courts or threatening to litigate. This is accomplished by everyone signing an agreement to work together in a cooperative or collaborative fashion, to iron out all the details that need to be settled in a divorce (or other family law issue such as spousal support, child support, or custody). Compliance with collaboratively made agreements is higher than settlements or orders that emerge from litigated divorces. What this means is that the need for future litigation and court processes are less likely for people that go through a collaborative divorce than a litigated case. Couples that go through a collaborative case can often stay friends, even after they are no longer married. The stress on the children of divorcing couples is minimized in this method.

A usual first step for someone interested in a collaborative law divorce is to find a collaborative law attorney that they wish to use on the case. I happen to be a Long Island collaborative divorce attorney, although I work all over the area. A lawyer that is properly equipped to work on a collaborative law case should have substantial matrimonial law experience. The lawyer should have undergone extensive collaborative law and mediation training as well. One sure way to find a lawyer that has the right credentials to work on a collaborative law case is to select one that is a member of the New York Association of Collaborative Professionals. Member lawyers have been screened to ensure that they have the right background and training to handle a collaborative law case.

The lawyers do not use adversarial methods in this process. Clients have the benefit of being represented by a lawyer at all times. Some people feel that they need the representation and advice of a lawyer through the whole divorce process, which they might not get in mediation. The parties in a collaborative case however have decided that they do not want to battle in court as is often a part of the traditional litigation model. The lawyers that work on the collaborative case are not permitted to continue on the case if later there is litigation. This helps to ensure that everyone is committed to the collaborative process. The professionals that work on the case are able to deal with the legal, financial and emotional aspects that are part of a divorce. For people who are not interested in an adversarial divorce, collaborative law could be the alternative approach they are seeking. Continue reading ›

How does a typical divorce litigation proceed in New York?

November 5, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

Each case is unique, however, I am writing this blog entry to give people a broad outline of how a New York divorce litigation might proceed on Long Island, New York City or the surrounding areas based on what I know and have seen in my practice. A divorce case can be initiated by either filing a Summons with Notice or a Summons and Complaint. The Plaintiff then has 120 days, without obtaining an extension of that time from the court, to have the summons served upon the defendant. If the summons is personally served upon the Defendant in New York, the Defendant then has twenty days to “appear” in the action. In the situation where a Summons with Notice is served without a Complaint, the Defendant’s lawyer would usually serve a “Notice of Appearance and Demand for Complaint”.

After being served with the “Demand for the Complaint”, the Plaintiff’s lawyer would then have twenty days to serve the Complaint. Upon being served with the Complaint, the Defendant’s lawyer would have twenty days to interpose an Answer and any Counterclaims. The aforementioned time periods are imposed by statute. Extensions of time are routinely granted to each side upon consent. Before, after, and while all the aforementioned legal documents are being exchanged, the settlement negotiations can be ongoing between the parties and counsel. Negotiations may proceed by telephone calls, letters, or four way meetings (conferences with parties and their counsel) outside of court.

If a settlement can not be reached out of court, the only way for a divorce to be finalized is by “Judicial Intervention.” The attorney for either side might file what is called a “Pendente Lite” motion, to ask a court to order certain things while the case is pending. Typically, the types of things requested in this motion are: temporary orders of custody and parenting time; temporary child support; temporary maintenance; exclusive use and occupancy of the marital residence; payment of carrying charges of the residence; payment of certain costs and fees that might be necessary in the case such as appraisal costs or forensic accounting analyses; orders of protection; requests for lawyer fees and various other possible requests. Continue reading ›

Is Mediation the Right Choice for My Divorce?

October 28, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

This is a question that many people need to answer when deciding whether to try mediation for their divorce. I have been practicing matrimonial and family law, for a number of years now as an attorney all around the area. I also handle Long Island Divorce Mediation at my office in Nassau County, New York. My personal belief is that if a couple can do mediation it is preferable to a contested litigated divorce. Among the many reasons I feel that way is that a mediated case is usually faster, less expensive, more tailored for each individual family, and more dignified than a contested divorce. Couples tend to have less animosity for each other after a mediation. Many can remain friends.

It is important, however, that someone who goes through a mediation gain knowledge to know what they might be entitled to if they did litigate. The reason that this is advisable is that a mediator’s role is not to give legal advice to either side. Mediators that are also divorce lawyers are not acting as an attorney for either side during a mediation. A mediator’s role is to be a neutral third party that is there to facilitate parties coming together to make an agreement. Therefore, a concern when mediating is to be mindful of unknowingly making an unfair agreement.

This can be safeguarded against by using a review attorney to go over what was agreed upon in a mediation. People can find their own independent lawyers to go over the settlement that was reached from a mediation. Some mediators can provide names of lawyers that are willing to act as a review attorney to one side of a mediation. Review attorneys might charge an hourly rate to go over the agreement with their client or even offer a flat rate. The review attorney is there to provide legal advice to their client. A review attorney might give assurance if the agreement seems fair or lopsided. He or she can offer suggestions, if there are any, on changes to make to the agreement. The suggested changes can be considered with your spouse with the mediator. Continue reading ›

What is a typical divorce mediation like in Long Island?

September 13, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

Each mediator has their own approach; therefore this blog entry is not intended to be a definitive map for divorce mediation in Long Island and surrounding areas. The purpose of this article is to be illustrative of how a typical mediation could proceed.

A couple that is interested in getting a mediated divorce can come to the mediator’s office for a half hour no fee consultation. The mediator will meet with the couple together as he or she is a neutral person. Although some mediators are experienced divorce lawyers, as the mediator, he/she is not acting as the lawyer for either party. In the initial consultation a mediator will describe the process and answer the general questions that the wife or husband may have.

If a couple is ready to begin the process after the half hour consultation, then they can usually start to work on a settlement of the issues right away. The first topic that is usually addressed is what the grounds for the divorce will be. More often than not, there is an immediate agreement to use the no fault ground that now exists in New York. All that is required for this ground is that either the husband or wife needs to be able to swear that the marriage has been irretrievably broken for at least six months. It is not the husband’s fault or the wife’s. One person will need to be the plaintiff and the other the defendant when the actual divorce is filed. Usually this is not a source of contention.