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Comparing Divorce Litigation, Collaborative Law, Mediation and Negotiated Settlements

In the process of a divorce or case involving family law, you will often find that there are many different routes available to you. As a trained mediator, litigator, collaborative law attorney and legal professional, I have had experience with all of these varying paths, and have noted that what may be the ideal course of action for one couple or individual, may not be the right direction for another. Neither mediation, nor collaboration, litigation nor negotiation will be the worst, or best choice in all cases. The choice of which approach to use will depend on a deep consideration of your personal circumstances, your individual preferences, and your legal needs.

Litigation

The first, and perhaps most well-known option for divorces to consider, is that of litigation. Litigation is the term that is used to describe the proceedings that may be initiated by two opposing parties in an effort to defend or enforce a given legal right. Cases can settle at any time before or during a trial, but ultimately litigation will be decided by a court after the argument has been heard and decided by a judge or jury on the issue of grounds only. The process of initiating litigation proceedings is voluntary for the plaintiff, but mandatory for the defendant once selected and served, and the formality of the case typically surrounds a formal process bound by a number of crucial rules. Continue reading ›

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An Overview of Private Placement Adoption in New York

Adoptions take place when one or two people take another individual (generally a child) to be their own child. When someone chooses to legally adopt a child, they will have all of the responsibilities and rights of a natural payment, and the child will retain all of the rights they would have had they been born naturally to the new family. The adopted child will be given a new birth certificate, and their last name will be the same as yours.

According to the New York Domestic Relations law, a single adult, two intimate adults, or a married couple may be permitted to adopt. Adoptions can be conducted through private placements including adult, step parent and foster parent adoptions. Individuals in need of further information regarding the topic of adoption should speak to a Long Island or New York family law attorney about their rights. Continue reading ›

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Decisions to be made on Child Support

Whatever the process chosen, be it mediation, litigation, collaborative law, or settlement negotiations certain decisions can be made regarding child support issues for the children. After a divorce, or pursuant to a child support application by the non-residential custodial parent whether married or not, child support is the money that will be paid to the custodial parent, as a method of helping them to pay for reasonable needs, such as food, clothing, shelter, education, health and maintenance. Sometimes, additional support is required to cover extra costs, such as extracurricular expenses, private school tuition, life insurance, college and more. There are numerous important decisions to make when it comes to understanding and arranging child support, and perhaps the first thing that needs to be considered, is how the amount will be determined.

Establishing Child Support Amount

There is a formula used by New York child support lawyers and judges which is set forth in what is called the Child Support Standards Act. The Child Support Standards Act may be found in both the New York Family Court Act and the New York Domestic Relations Law. This formula was designed to provide an insight into the amount a non-custodial parent should be required to pay for child support. The policy behind this statute was to provide standard amounts which people of a similar income should be expected to pay. The decisions that need to be made on child support can range from caps on the income considered, to when it will be paid, how extracurricular activities will be paid for, and how modifications will be made and cost of living adjustments will be dealt with. The first step is to consider each party’s gross income. Continue reading ›

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Decisions to be made on Equitable Distribution

The term “equitable distribution” refers to the method that is used to divide obligations, property and assets between spouses as a part of divorce proceedings. An important concept to understand is that equitable distribution doesn’t necessarily mean that things are divided “equally”, only that they are divided fairly according to the law. The doctrine of equitable distribution is utilized to consider the future financial circumstances of each spouse following the termination of the marriage. Although equitable distribution is a somewhat flexible system, it can be difficult to predict the outcome of any case, as some of the factors that the court considers are quite subjective.

The process of equitable distribution in regards to property involves three major steps:

  1. The determination of which property can be established as part of the equitable distribution
  2. The valuation of the property to be considered
  3. The actual division of the property or assets

Continue reading ›

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Decisions to be made on Custody and Parenting Time                                                

Over the years, I have handled a number of cases associated with custody and parenting time (or visitation), particularly throughout Nassau County, Suffolk County, Queens, New York City and nearby areas. In my experience, I have found that often, the process of dealing with custody and visitation can differ widely from one situation to the next, however, a certain collection of considerations and decisions will need to be made in any case. In any legal matter concerning children, if an agreement is not made, the court will be required to consider the situation and decide these issues according to the best interests of the child(ren). Whether the topics are decided upon in a mediation, litigation, collaborative law case or settlement negotiation, the same topics need to be covered.

Legal Custody and Residency

There are two significant areas when it comes to determining child custody that need to be set forth. The first concerns where the children will live. When a child lives with a particular parent, the majority of the time, according to a court order, that parent is said to have residential custody under the law. The second major concept that needs to be defined through a custody order is who has the capacity to make decisions on the behalf of the child. The parent or couple responsible for decision making under court order are regarded as having “legal custody.” Continue reading ›

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People dealing with allegations involving domestic violence, concerning family, as defined under New York law, whether as the victim or the accused, have different forums in New York that they might find handling their case.  Family can be blood relations, people with children in common, and people in intimate relationships.  Please call or see our other blog entries or website for more information on what is defined as a family under New York Law.

Orders of protection may be granted to protect a spouse and/or children by the Supreme Court as part of a divorce or matrimonial proceedings.  An order of protection case, aka a Family Offense, might be started in the Family Courts.  Unlike when someone receives an order of protection through a criminal court, a Family Offense proceeding is not about crime and punishment.  The Supreme Court, Family Courts and the Criminal courts, however, can order incarceration if orders of protection are violated. Continue reading ›

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Most people know what in hand delivery service of process of court papers looks like as they have seen process servers depicted in TV Shows and movies. Courts prefer actual hand delivery of the court papers as that is the surest way to know that someone has received the papers. In New York this kind of service is enumerated under the Civil Practice Law and Rules (CPLR) Section 308(1). The process server swears before a notary in an affidavit that they hand delivered the papers. This affidavit of service is filed with the court. After starting an action, the CPLR allows for 120 days for the service to be made.

We also know that a lot of people like to avoid service of process. In a divorce, the question becomes, can I get a divorce if I do not know an exact address for my spouse or if he or she is ducking service? Yes, it is possible, but permission of the court needs to be obtained. In other words a motion needs to be made requesting the court to allow service by some alternate method such as posting the summons to a door and mailing (commonly known as “nail and mail” service), service by mail, or service by publication. If the time for service will be past the 120 day period from when the case was initiated, then permission to extend the time for service needs to be requested from the court as well. Good practice would be to include this request in the motion for permission to serve by publication or some other alternate method. Continue reading ›

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I wear different hats now in my career since I am a litigator, certified mediator, certified collaborative law attorney and a lawyer negotiator. This blog entry will focus on divorce mediation v. divorce litigation as I do both. Overall, my belief is that the couples that I have worked with in divorce mediation are happier with the process than the people involved in the litigated cases.   I have not given anyone tests to measure their happiness either after the completion of a litigated case or mediation, but this is how I feel.

What makes me say that? It’s the little things and the big things. Most couples that I work with in mediation walk out of the process together. Many of them walk out of each session together. One mediation in particular sticks out in my mind as I saw the couple hug in the parking lot after settling the case and getting in their respective cars. Although the parking lot hugging might be the exception rather than the rule, I don’t think it is such a rare occurrence for mediating couples. And why shouldn’t this be? After all this couple, at one time in their lives, were probably closer together with each other than they were with any other person in the world. Yes, the relationship did not work for whatever reason. They fell out of love, grew apart or something else, but at one time they shared something special. Why shouldn’t they part as friends or at least without bad feelings? Continue reading ›

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Over time, the role of attorney for the child in custody and parenting time (visitation) cases has evolved and developed in New York. Their name has changed as well since they are properly called attorney for the child(ren) now whereas the job used to be known as “law guardian”. While many used to believe the role of the attorney for the child was to determine what’s in the best interests of the child, it is clear now that this is not supposed to be their job. The attorney for the child’s role is defined in Rule 7.2 of the Chief Judge in New York.

The rule requires the attorney for the child, like an attorney for any other party in the case (such as mom or dad lawyer’s), to advocate for their client’s position with zeal. If the child is mature enough to be capable of making a knowing, intelligent and voluntary judgment, even if the attorney for the child believes the child’s wishes are not in his or her best interest, they should advocate for what the child says theywant. The trier of fact, be it a judge or a referee, however is required to make decisions on what they determine is in the child’s best interests. So the best interests standard still controls, it however is not the attorney for the child’s job, usually, to advocate for the best interests. Continue reading ›

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Adult couples involved in romantic relationships in New York, whether opposite sex or same sex, now both have the option to choose to get married in New York or in certain localities enter into a domestic partnership. This blog article will highlight some of the benefits and differences with each. The Marriage Equality Act became law in New York in the summer of 2011 and allowed for gay or same sex marriages to be performed in this state. Prior to the passage of the law, New York recognized same sex marriages performed in other jurisdictions that legalized them, but would did not allow the marriages to take place here.

The Domestic Partnership laws are local laws in many various jurisdictions within New York. This law allows couples, depending on the locality in New York in which the couple works or resides, to register as a domestic partnership if they meet certain criteria. Some localities extend domestic partnerships to only same sex couples or to both opposite sex and gay couples. But, what are the differences between marriages and domestic partnerships? Continue reading ›

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