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After agreeing upon the terms of a settlement in a divorce mediation, the drafting attorney usually will put together the settlement agreement. It might be in the form of a separation agreement or a stipulation of settlement. Since I am a New York City area, Suffolk County and Nassau County divorce lawyer and divorce mediator, I have always been the drafting attorney on my mediated cases. It is recommended that each party take that settlement agreement and have it reviewed with their own attorneys. The purpose of the review attorneys is to make sure that each party understands their rights, understands what they are signing and that what they agreed upon is in fact in the agreement. This is the person that could give them the legal advice they need.

Everyone that goes through alternative dispute resolution has questions. Would I do better if I went to court? Is this a fair agreement? People that go through collaborative law or litigated cases receive the advice and representation of an attorney throughout the process. Collaborative law, for those, who have not heard about it, is another non-adversarial way to resolve matrimonial and family law cases. I like to think of collaborative law as a method somewhere in between mediation and litigation however it is non-adversarial, like mediation. Feel free to click around my blog, website or call to talk about collaborative law. This blog entry is geared more so about divorce mediation.

The divorce mediator’s role is as a neutral to help people settle their differences and formulate an agreement to move on with their lives. When I shift gears into my role as drafting attorney my job is to ensure that the understanding that the parties made is put into proper form to be a legally binding agreement that settles the case. Usually, in the case of a divorce, that means to settle all of the issues that a Judge would have to decide had the case proceeded to litigation and a trial. In this blog I will go through topics that I include in my settlement agreements when acting as a drafting attorney. For each topic I will touch upon some of the considerations that a review attorney, which is sometimes my role, can address with their clients to make sure their client is armed with the legal information they would need to making a knowing, intelligent, and voluntary agreement for their divorce or other family law issue that is mediated. Continue reading ›

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Each County has some particular nuances that make practicing divorce and family law a little different in each venue.  Although most of the same laws are applicable throughout the state, besides differences in geography, each court, as well as each judge has their own rules and procedures.  As a New York City, Long Island and Nassau County Family Law Attorney, I have had the opportunity to see geographic differences in my practice.  Although I do cases all around the area, my highest volume at this time is in Nassau County.  The purpose of this blog entry is to provide information about divorce and family law practice in the Nassau County Supreme Court and Nassau County Family Court.
Separation proceedings, divorces and post judgment divorce proceedings are the types of cases that we mostly handle at the Nassau County Supreme Court.  The Supreme Court of Nassau County has an address of 100 Supreme Court Drive Mineola, New York 11501.  Matrimonial cases are usually assigned to a court room at the Nassau County Supreme Court Matrimonial Center, which is located at 400 County Seat Drive Mineola, New York 11501.  Divorce cases are initiated by purchasing the Index Number at the Nassau County Clerk’s office which is located at 240 Old Country Road Mineola, New York 11501.  All the legal documents on file for the Supreme Court cases become part of the records maintained at the Nassau County Clerk’s office.

At the Nassau County Matrimonial Center a case is assigned to a:   Justice of the Supreme Court; Judicial Hearing Officer; or a Special Referee.  There are mediation services to help aid in resolution of matters to minimize the litigated issues.  There is a Model Custody part at the Nassau County Matrimonial Center specifically designed for child custody and parenting time disputes.  I frequently find myself at the Nassau County Supreme Court, which is less than five miles from my office, whether it is to follow up or appear on one of my cases. Continue reading ›

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In this blog I will attempt to outline some of the elements of common family offenses, which I have seen in my practice as a New York City and Long Island Order of Protection Lawyer.  If a family offense is proven, it usually entitles the victim to an order of protection.  Under the New York Family Court Act, if someone that meets the definition of Family under the Act commits a Family Offense against the other then there should be a finding that a Family Offense has been committed and a decision as to what order of protection, if any, is appropriate among other possible dispositions.  Orders of protection might direct a person to stay away from the protected individuals and/or to refrain from committing certain acts against them, among other things.

At a hearing, facts that are not alleged in the petition, if properly objected to, may be inadmissible to prove that a family offense was committed.  Only relevant, competent and material evidence should be admitted to prove or disprove a family offense.  Each case is different and whether or not a Family Offense was committed and the appropriate action to take if there was an offense, is up to the discretion of the trier of fact or judge in each particular case within certain evidentiary requirements and standards.  Usually Family Offense cases are heard in the New York Family Courts.  They may, however, also be heard in the Supreme Court such as during a divorce case.  Often times the Family Offense case may initially be assigned to a Referee, instead of a judge, who can be given the authority by the consent of the parties to be the judge that decides the case.

Family offenses are enumerated in the New York Family Court Act and are violations and/or crimes under the New York Penal Law.  A family offense proceeding in Family Court or Supreme Court, however, is not a criminal prosecution and thus is usually simply about whether or not an order of protection should be issued.   Again, the following is not a complete list as there are many more acts or crimes enumerated under the law, but the intent is to illustrate of what might constitute some of the more common.  Continue reading ›

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No matter how amicable or contentious a divorce case was, issues can arise after judgment that can be dealt with in the Supreme Court.  As a Nassau County Divorce Lawyer, I frequently defend against or bring applications in the Family Courts in Long Island, New York City and the surrounding regions of New York involving post judgment child support, child custody, maintenance or orders of protection issues for both my ex-husband and ex-wife clients.  The Supreme Court, however, is usually available to deal with these post judgment issues as well.

Sometimes, the issues must be dealt with in the Supreme Court such as for enforcement of a property settlement, an attempt to vacate certain terms of the divorce, or in the event that exclusive continuing jurisdiction is reserved in the Supreme Court for future matters involving child support, child custody, or maintenance. Often times the Supreme Court is selected to deal with issues over the Family Court as the Supreme Court can deal with the issues as part of one case, while the Family Court requires the issues to be dealt with in separate cases.  For example, support issues are assigned to a Support Magistrate while custody issues may be assigned to a Referee or a Judge in the Family Court.   This blog entry is intended to outline some of the more common issues that the Supreme Court can deal with that come up soon after or many years after a couple has divorced.  More specifics about the specific areas of law are covered in other blog entries and on my website.

Contempt or enforcement applications often come up after a divorce.  These applications are done when either the former wife or husband is asking the court to punish the other party for their disregard of the order or to help them enforce the terms of the divorce.   The contempt allegation may be that one of the parties violated:  an Order of Protection that was issued as part of the divorce; the provisions involving a property settlement; the requirement to sell the marital residence; the custody and parenting time provisions in the divorce; the terms of the payment of child support or maintenance (formerly known as alimony); or other provisions that were a part of the terms included or incorporated into the Judgment of Divorce.  Remedies for contempt could be money damages, incarceration, modification of the previous terms, or the award of attorney fees among other possibilities. Continue reading ›

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People are free to make arrangements in their settlement agreements concerning the circumstances that would allow for child support to be changed as time moves on from their last child support order.  Absent an agreement, however there are two different methods to try to change child support.  The first, which most people know about, is filing a petition, application, or motion in the Family Court or Supreme Court to modify child support.  The second method, not as widely known, is to serve and file a timely written objection to a notification by the Support Collection Unit of a Cost of Living Adjusted Order.  If a timely written objection is properly made to the notice of the COLA increase or Cost of Living Adjusted Order, the court is required to then determine what child support would be based on current income or circumstances.  This is called a “denovo” hearing on child support. This blog entry is intended to provide a general outline of these two different techniques.  I am a Long Island Child Support Lawyer that handles cases on Long Island and all around the New York City area.  Through experience, research and education, I gained my knowledge and experience with child support.

The law in New York regarding child support is commonly referred to as the Child Support Standards Act and is set forth in both the Domestic Relations Law and the Family Court Act.  As the law stands in New York today, the default rule is that a party to a support order may seek to modify child support if since the last order:  there exists a substantial change in circumstances; three years or more elapsed since the order was entered, modified or an adjustment made; or since the entry, modification, or adjustment of the order either party to the order has had a change to their gross income of fifteen percent or more.  This is the law for cases filed subsequent to the law change in 2010.  For orders that were before the law change, the old standard applies which was that absent an agreement for modifications otherwise, there would need to be a substantial change of circumstances.  It was more challenging to obtain modifications under the old law.     Continue reading ›

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An uncontested divorce means that every possible issue necessary to settle the divorce is agreed upon.  There are different processes available to settle all the issues.  Kitchen table discussions between couples is always available, divorce mediation, collaborative law, four way meetings with counsel and clients, and attorney negotiations are some of the more common.   If there is any issue that is not resolved, such as what the child support payments are going to be, or how the equity in the marital residence is going to be divided, then the divorce cannot yet be called uncontested.
It does not mean that the case needs to become a contentious battle if it is not at uncontested status as of yet, rather it just means that there are things that still need to be resolved.  Once the issues are resolved the case can become uncontested.  I have been dealing with matrimonial and family law cases all over the New York City area, Nassau County, and Suffolk County for a number of years now.  As a Long Island Divorce Lawyer, many of my cases start as contested only eventually to become uncontested.  Some cases, however, are not settled and stay contested.  That is how I gained my litigation experience.  Most of my cases that I handle as a divorce mediator end up being uncontested after spending a little time working together.
The first topic that needs to be dealt with is grounds.  One of the seven grounds must be selected as applicable and not disputed to meet this first hurdle.  The most commonly selected grounds since the 2010 enactment of the no fault divorce in New York is in fact the no fault grounds, Domestic Relations Law Section 170(7), the irretrievable breakdown of the marriage.  It must be agreed that one of the parties will be granted the divorce based on the selected grounds.  Under the No-Fault law, it’s nobody’s fault, the marriage just did not work or was irretrievably broken for at least six months.  One of the other grounds could be selected as well which are:   Domestic Relations Law Section 170(1) cruel and inhuman treatment; Domestic Relations Law Section 170(2) abandonment; Domestic Relations Law Section 170(3) imprisonment; Domestic Relations Law Section 170(4) adultery; Domestic Relations Law Section 170(5) living separate and apart pursuant to a separation judgment or decree; or Domestic Relations Law Section 170(6) living apart pursuant to a separation agreement.  Even if one of these other grounds is selected, the party who is not being granted the divorce does not have to admit the grounds, they can simply neither admit nor deny the grounds.  That’s enough for the grounds issue to be resolved. Continue reading ›

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Pendente lite motions are requests made by a party to litigated divorce cases to ask the Court to grant certain relief while the case is ongoing.  Pendente lite is latin for “while the action is pending.”  Pendente lite orders are not intended to settle  the divorce in its entirety as the final settlement or Judgment of Divorce becomes the final resolution of the case.  They are supposed to tide things over, so to speak, until the rest of the case can be decided.  There are various things that your New York City or Long Island Divorce Lawyer  might ask the court to rule upon in a pendente lite motion.  Motion practice usually consists of motions, opposition, cross-motions and any reply papers.

Custody and parenting time might be a part of a pendente lite order.  This can include the issue of residence of the children, a schedule of parenting time or visitation, and the decision making involving the children.  Sometimes the court will appoint an attorney for the child(ren) when there are issues involving the children that are not resolved.  The allocation of fees between the parties for the attorney for the child(ren) is often ruled upon.  A forensic investigation might be ordered by the court to help give insight into the children and the family to aid the court in deciding issues on custody and parenting time.  Courts will usually not make a custody determination without having an evidentiary hearing, but it might be more inclined to issue a temporary order regarding the parenting time to help alleviate any preliminary scheduling issues.

Exclusive use and occupancy of the marital residence might be requested.  Absent an agreement for exclusive use and occupancy, the law in what is called the Second Judicial Department is that a pendente lite award for exclusive use and occupancy should not be made unless there is a showing that the award is necessary in order to protect people and property.  The Second Department covers Suffolk and Nassau County, Queens, Brooklyn, Staten Island, Rockland, Westchester, Dutchess, Putnam and Orange Counties.  In cases where there is shown to be a risk to persons or property, an order of exclusive occupancy while the case is pending is appropriate.  Without a showing or an agreement for the order, a Court should not deprive a person of access to his/her own property. Continue reading ›

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If your spouse refuses to go to divorce mediation or collaborative law, then the question is already answered since mediation and collaborative law are both voluntary processes.  You still can get a divorce, but the process will be under the traditional adversarial litigation model.  Some cases under the traditional approach can be settled right away as an uncontested matter while others might drag on for years with a heavy emotional and financial toll. As a Long Island Divorce Mediation Lawyer, litigator, and Collaborative Divorce Attorney, I am familiar will all of these models.  Divorce mediation and collaborative law are considered alternative dispute resolution methods.  I am a big fan of either of these, in place of litigation, for the right couples.  This blog will describe the two methods and some of the pros and cons of each.

Some people are purely driven by the fees that are going to be associated with going through the divorce process.  As a general rule, mediation is the less expensive alternative.  Each case is different, and the professionals that work with you on your divorce mediation can have their own billing and payment methods, but I can relay details about fees for a typical divorce mediation that I handle.  While mediating the issues with a divorcing couple I charge my usual hourly rate.  Once a consensus is made I am able to offer hourly or flat rates to be the drafting attorney for the settlement agreement and the uncontested divorce filing to get the divorce finalized and entered.  Collaborative law cases will in most instances be more costly than a mediated case. Usually it will be less costly than a fully litigated case however.  The New York Association of Collaborative Professionals, of which I am a member, is now integrating streamlined protocols into our regular collaborative case procedures which are designed, in part, to help make the process more economical.

Typically,  mediating couples will come to the mediator and go through the process without attorneys present during the mediation sessions.  The mediator does not represent either side so is not there to give either party legal advice.  Couples are encouraged to each consult with their own review attorneys at a minimum after a draft of a settlement agreement is prepared.  Some individuals choose to meet with their own attorneys before mediating or in between mediation sessions.  Not everyone does use the recommendation to have review attorneys but it is advised.  The parties work together with the mediator to resolve all the issues that need to be addressed for the couple, and their children to dissolve the marriage and move on with their lives.  In divorce mediation the parties settle their marital issues together with dignity. Continue reading ›

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Custody trials can be a challenging part of a divorce or post-judgment divorce case in the Supreme Court where there is a disagreement over the custody and parenting time of a child.  A custody and visitation (parenting time) case can also proceed to trial in the Family Court.  Although the procedures to get to trial and other aspects of the case might have differences between the Supreme Court and Family Court, the actual trial on the custody and visitation of the children fundamentally will be the same in the two New York courts.  I am a Long Island Child Custody Attorney and have experience handling Supreme Court and Family Court child custody cases all around New York City and Long Island.

There are two general categories of custody trials that I am going to discuss in this blog entry.  The two are an initial custody determination and a modification of a prior order (writs of habeas corpus, contempt and enforcement proceedings will be discussed in later entries).  In both categories, the Judge or Trier of Fact (sometimes called a Referee), must make the final decision on what is in the children’s best interests.  However, in a modification of custody proceeding there is an additional first obstacle that needs to be surmounted.  The requesting party must first prove that there is a substantial change of circumstances that requires the best interests of the child(ren) to be weighed.  It is important for the lawyer and the parties to keep these standards in mind throughout a trial in order to present the most compelling and relevant information to the court.  The judge on your case will appreciate a focused presentation that does not include too much superfluous information or irrelevant material.  There are no jury trials for custody issues in New York so the hearing is what is called a bench trial.  The judge is the audience and the person who decides the case.

The petitioning or moving party goes first and will be given the opportunity to make an opening statement.  The responding party or other side of the case will be given a chance to make their opening statement afterwards.  Often their will be an attorney for the child or children that will also have the chance to make a statement.  Sometimes lawyers, or self-represented parties, will waive their right to make an opening statement and choose instead to let the evidence brought out, or the lack of evidence, speak for itself.  That is because the opening statements are not actually evidence.  They are a recitation of what might be brought out in evidence.  Stylistic preferences, and the facts of the case, will influence whether to make an opening statement or how to do it.  It is important to keep those aforementioned standards in mind, specifically, if a substantial change of circumstances needs to be first shown.  Also, everyone should never lose sight that ultimately what is in the best interests of the child(ren) is most important. Continue reading ›

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Forensics are ordered in custody and parenting time cases by the New York Family Courts and Supreme Court when there are disputes about the custody and/or visitation (parenting time) of minor children.  The custody dispute might be part of a divorce or can be a part of a case when the parties are not married or divorcing.  Forensics is the word used for investigations and reports made by psychological professionals for the court which are then used to aid in deciding how to rule on the dispute.   Usually forensics are employed for cases in which there is a battle for custody.  Sometimes, however, the question might be over time, access, child relocations or visitation with the child (ren).  Your New York City or Long Island Child Custody Attorney will be an important part of your case when forensics are involved.  Using the forensic investigator and report in a case is a technical process.

Forensic investigators are usually social workers, psychologists or psychiatrists that specialize in children and family matters.  The forensic professional will speak with each parent or other parties such as a relative or grandparent, the subject child or children, and other prominent people in the child’s or parent’s life.  Usually, at least a few meetings for each person will be required by the investigator with each parent and he/she will also meet with the child.  It is common for the forensic investigator to meet with each parent alone, the child (ren) alone and then the child together with each parent.

While forensics can be a useful tool for the trier of fact (the judge or referee), to gain valuable insight about what ruling would be in the children’s best interests, another motive might be to put financial pressure on the parties to settle.  Forensics can be a costly process.  The final price will vary from case to case, as the hourly rates of the investigators vary and the time spent on the case will differ.  How much time is required will depend on the specific matter and all the players involved. The allocation of the expense for the forensics is usually pro-rata, according to the percentage share of each parent toward the total combined income.  It is not unexpected, however, for a court to order that the costs initially be split and possibly be reallocated at trial.  Some courts will not decide a custody and visitation case without forensics regardless of the wishes of the individual parties or their financial circumstances.   Other courts are more sensitive to the financial ability to pay of each individual party and might not require them if it is a great hardship. Continue reading ›

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