Matrimonial and Family Law, Divorce Mediation & Collaborative Law Forum

Are Budget Cuts Creating Hardship for Our Children?

2012-02-01T16:17:00.000-05:00

“The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.” - Charles Dickens

It is no surprise that there have been severe budget cuts in New York State’s court system in the last fiscal year. Most of them came in May of 2011, some followed in the Fall and others in December.

The New York Law Journal’s article on January 20 entitled “Family’s Plight Illustrates Adverse Effect of Budget Cuts on Courts”, highlights the way in which children suffer as a result of the “system” where children end up getting removed from their parents by Child Services and linger in foster care because a judge’s hands are tied by time frames imposed as a result of budget cuts.

Current New York State budget cuts require courtrooms to close at 12:30 pm which is a half hour before the regularly scheduled lunch hour (usually 1 to 2) and at 4:30 in the afternoon, a half hour before the regularly scheduled closing time of 5:00 p.m. These time frames are enforced strictly to avoid overtime pay for court personnel and judges are required to adhere to the schedule. Therefore, at 12:30 or 4:30 if lawyers are “on the record” and even if a person is in the midst of a sentence, the judge is required to stop the proceeding and adjourn the case.

This seemingly “minor” change can result in dire consequences for families and children, who are forced to be parties in the Family Court system. The absurdity of the process was clearly demonstrated by a recent Brooklyn family court case, which involved a 7 year old boy, Jesse Lugo, his sisters and his parents, who were living in a homeless shelter. On Dec 8, the father was badly beaten by three men in the shelter and according to the police report, he was taken by ambulance to King’s County Hospital where he was treated for multiple injuries. The mother was not at the shelter at the time and was not expected back.

The three children who are 7, 9 and 14 were left without adult supervision, so the police took them to a residence in Manhattan for children who are waiting for placement in foster homes. They remained there overnight. The following day, child welfare workers from the New York City Administration for Children Services (ACS) filed a neglect case in family court against the parents. When ACS files a neglect case, the agency usually has reason to believe that the children have been neglected or mistreated by their parents. Here, ACS assumed that since the father was in the hospital and the mother was not at the shelter but presumably at a drug rehab facility, the 3 children had been neglected.

The case came before a judge at 3:45 PM on Friday, December 9. The judge was already trying to juggle two other neglect cases, one of which required a translator, so he gathered all the lawyers and reminded them that the courtroom had to close at 4:30 to avoid overtime. This particular case, was called at about 4:15 but at that hour the judge said he wouldn’t be able to handle the case and it would have to be held over until Monday. The ACS attorney asked for an order authorizing the children to remain in their care, away from the parents for the weekend. The mother, in the meantime, told her lawyer that she was not in a drug rehab but she was actually at that time serving 3 days at Riker’s island for failing to report for community service as a result of a year old subway turnstile jumping case.

Unfortunately, on Monday all seven judges assigned to hear neglect cases were supposed to be in a training session so the case was adjourned to Tuesday, December 13. At 4:29 PM, the judge ordered the children to remain in the care of ACS. As a result of this ruling, over the weekend and until Tuesday, the 7 year-old was sent to one foster home and his sisters, who are older, were sent to another. The children remained separated from their parents and from each other for the next 4 days. When the case reconvened on Dec 13, ACS changed its mind and asserted that the children could now return to the parents.

Unfortunately, this nearly Dickensian saga has not been a single unusual occurrence. Rather, the bureaucratic failings and deficiencies of an already broken ACS system have now been exacerbated by the time frames imposed as a result of another bureaucratic deal, - between State government and unions.

The poor victims of this particular case, the children, were already in the shelter, and instead of helping them, our system served to traumatize them even more. They were removed from their parents, put in a temporary foster situation, then, even worse - separated from each other and put in two separate foster homes for 4 days, after which our illustrious ACS came back and said OK you can now return to your parents and be united with your family. Will the government then pay for therapy that these children will need to get over their ordeal? Incredible!

Sadly, results of this kind are all too common. The only difference now is that as a result of strict time frames in the courts, the children are likely to linger much longer awaiting decisions on their lives. Before, conscientious judges would keep their courtrooms open until 7:30 or 8 PM or even work as late as 11 to ensure that the children’s needs were appropriately met. Unfortunately, this is no longer happening. They are calling it a culture change, but I think it is a lot more severe than that. It’s understandable from my perspective that there is a financial piece and there are budget cuts and union rules, but the effect of such cut-backs in Family Courts falls on the most vulnerable members of our society, - our children. The purpose of Family Courts is to act in the best interests of children and not let them get lost amid the power struggle between State government and Unions. Something urgently needs to be done.

Do you know anyone who would also find this blog of value? Please feel free to forward it to them. If you have any comments or follow-up questions, click on the “Comments” link at the bottom of the blog.

How Do You Find and Select a Good Lawyer?

2012-01-15T21:37:00.000-05:00

“The leading rule for the lawyer, as for the man of every other calling, is diligence.” - Abraham Lincoln

It’s very important that the attorney you work with has experience and is specializing in the specific areas that are of interest to you and that you want to pursue. But how can a client find out this information?

Google seems to be the default method lately, but all that Google does is to lead you to lawyers or people who market themselves the best. It doesn’t necessarily mean that they have the experience needed to deal with the situation for which the person needs an attorney.

Here is a list of ideas to follow:

1. An attorney has to be an attorney.

This statement may seem really laughable, however, many clients have appeared in my office over the years, especially clients for whom English is not their first language, saying something along the lines of the following: “I was involved in a car accident. I found an attorney in a Russian language newspaper. I signed some sort of papers and since then I have no idea what is going on with my case.”

Something like this can happen in real estate cases, matrimonial cases or other general legal matters that are very important and take a certain amount of time to conclude. Usually I ask these people to give me the name of the attorney and the phone number of the firm. Sometimes, when I make a phone call and ask a few leading questions, it turns out that the person with the Russian name who is the main contact person for the client is not an attorney at all but some sort of middle man who meets with a client and then shuttles the matter to an attorney. The client never really sees or deals with this lawyer and never really understands who represents him and/or if that person is competent.

2. Does your attorney have the right to practice law?

In New York State, checking on whether your attorney can practice law is fairly easy to do. All attorneys must complete a bi-annual statement and pay dues and each of them has a distinct id number. All that is needed is to go to nycourts.gov (make this a link) and click on the attorney tab. The site has a directory of all lawyers who:

are licensed and in good standing;
have not been disbarred or suspended;
are paying their dues; and
have been admitted to the Bar in the State of New York, which means they are allowed to practice in the state of New York.

This directory is online and a client can very easily confirm that a lawyer is:

licensed to practice;
that the license is not lapsed;
that the license is not suspended; and
that he or she has not been disbarred.

This is extremely important, especially important in cases where a client is giving money to the lawyer to hold in an escrow account.

It is also important to check that your attorney has the right to practice in the state where your case is taking place. For example, if an attorney has a license to practice in New York but you have a family law matter or a negligence matter in New Jersey, it is very likely that your attorney is going to have to delegate or refer most of the work to someone who is licensed in New Jersey. Your New York lawyer cannot really handle the matter without having a New Jersey license.

3. Meet your attorney.

If you are hiring someone to work for you and are paying them a “salary”, you would not do so without first interviewing that person. Every client has an absolute right to meet with his/her lawyer.

Beware of lawyers that are promising to get you absolutely everything you are asking for.

Beware of lawyers that have not responded to your phone calls or to your letters.

Be aware that when the case is pending you, as the client, have the right to receive copies of all papers related to your case. You have the right to receive regular bills and the right to receive status updates on the progress of your case.

4. Be sure you understand the retainer agreement before you sign it.

Usually when you meet with an attorney, you are asked to sign a retainer. A retainer basically is an agreement, which may be very simple or very complex, which describes the financial arrangement and the scope of work that the attorney is going to be doing for the client. In New York State, any matter where the attorney’s fee is expected to be at $3,000 or more, requires a written retainer agreement to be signed by the client.

Make sure that you very carefully read the retainer agreement together with the attorney. If you have doubts or are not clear, take the papers home, speak to some friends and relatives to help you go through the document because sometimes the legal language is a little difficult to understand. Do not rely only on the explanation the attorney, or a secretary in the attorney’s office, gives about the retainer.

5. Don’t be afraid to get a second opinion.

If you have started the case but are not thrilled with the attorney you have, I recommend that you go to someone else and get a second opinion just to make sure that your case is being properly handled. You always have the right to switch lawyers and usually if there is a retainer amount of money that you pay up front, the lawyer is only allowed to keep the earned portion of that retainer. That means that if you gave an attorney $25,000 and three weeks later when the attorney has done 5 hours of work, you decide to switch to another lawyer, the first lawyer can only retain a reasonable amount for the hours actually spent on the case and needs to refund the rest to the client.

However, there are certain retainers that provide for a minimum fee and they are legal and enforceable. Be very wary of these retainers before you sign them because if you switch lawyers or if your case ends very quickly, there may be a certain amount of money that the lawyer will receive, even if it is more than the actual number of hours spent on the case.

Overall, the process of hiring an attorney is probably the most important part of a case, regardless of what area of the law that case is in. How you start, the lawyer you select, the personal relationship that you have with the lawyer, the financial relationship, and the understanding of the process as you go along are probably the most critical elements of a successful case.

Do you know anyone who would also find this blog of value? Please feel free to forward it to them. If you have any comments or follow-up questions, click on the “Comments” link at the bottom of the blog.

A Good Divorce?

2011-11-16T15:51:00.003-05:00

“What do we live for, if it is not to make life less difficult for each other?” – George Eliot

Some people think that having a “good divorce” is an oxymoron. In her October 28th NY Times article entitled “The Good Divorce”, Susan Gregory Thomas admits that “. . . there is precious little upside to divorce. “ She goes on to talk about how she and her husband were able to focus on their children rather than focusing on their pain, hostility and feelings of betrayal as they were going through the process.

According to statistical studies, people are marrying a little later in life, and tend to live together for a certain period of time before they decide to officially tie the knot. Couples who live together before they marry are often able to successfully overcome the obstacles inherent in the initial period of cohabitation between two strangers. If they become friends, their marriage generally strengthens. Sometimes, however, even these marriages don’t work out, but when they fail, they fail “differently”. Couples that have been good friends during their marriage tend to approach their separation and divorce very differently than those who married in the midst of their passion, and had a heated marriage followed by a very heated divorce.

Susan Thomas says that based on Generation X research (people born between 1965 and 1980) conducted by Betsy Stevenson, an assistant professor at the Wharton School of Business, nearly 60% lived with their future spouses before marrying. Of that group, about 80% have made it past 10 years of marriage which is a very positive statistic.

Of those marriages that did not work out, the couple’s approaches to a divorce differ greatly. Among them, divorce mediation and collaborative divorce are on the rise, as parents want to spare their children the horrors of the types of divorces that they remember in movies like Kramer vs. Kramer or that they recall from their childhood. These couples read the studies; they understand the effect of divorce on children:

Children of divorce are worse in math and social skills.
They suffer from lower self-esteem than those from non-divorced households.
Girls struggle with low self-esteem if their father abandoned them or if there is little exposure to the father in real life.

They prepare for the divorce the same way as they prepare for anything else in their lives. Their diligence enables them to approach the divorce process as a problem to be solved rather than an injury to be healed or inflicted on the other side. They are able to focus on the children’s well being and on common-sense solutions to financial problems rather than just dealing with the whole issue emotionally.

Susan Thomas talks about her particular situation and how she and her husband actually ended up strengthening their core friendship as they went through the divorce and discussed things together. They focused on the children and although as a couple, it didn’t work out, they continued being good friends for years to come. So she poses the question: “Do those marriages that suffer from a lack of heat while intact generally produce better divorced parents?”

The clients that cross the threshold of my office seem to confirm Thomas’ viewpoint. Generation X couples are more likely to mediate or be involved in a collaborative divorce process than younger couples or those, who, having lived together for 25 years are now going through a very hostile divorce. With younger couples the sense of betrayal often overwhelms and actually impedes the ability to make decisions during a divorce. Among older families, where children are emancipated, there is often long term resentment mixed in with concerns about financial stability later in life. How will the divorce landscape change in the future? I believe, that much of it will depend on what cultural direction our society would choose to undertake in the next few years.

Is It Fair? - - A Temporary Shared Custody Deal Between the Families of the Murdered Mother and the Accused Father

2011-10-26T13:56:00.001-04:00

“Peace is not an absence of war, it is a virtue, a state of mind, a disposition for benevolence,confidence, justice.” - Baruch Spinoza

In the New York Times article dated October 24, 2011, reporter Liz Robbins describes an incredible event that has taken place in Brooklyn Family Court and involved two very distraught families. In August, Nazish Noorani, a married mother of two small boys was shot and killed. It had later turned out that the murder was allegedly arranged by her husband, Kashif Parvaiz. Prior to this tragedy, the family resided in Brooklyn with the paternal grandparents who acted as primary caretakers.

According to the NY Daily News article dated October 4, 2011, the lawyer for the mother’s family stated that the children were afraid of their paternal grandparents. The maternal grandparents, who live in Brooklyn as well, have only seen the children once since their daughter was murdered on August 16. The Brooklyn judge was to make a decision on custody in three weeks following a hearing held on October 4.

So, what happens now? Both families, with the help of the attorney for the children have worked out a temporary plan to share parenting time. Is this justice? Is it in the best interest of these children? Will the mother’s family bury its grief and anger and work constructively toward these children’s best interest with the family that raised their daughter’s alleged murderer? Should they? And how will these children fair under the circumstances?

Only time will tell.

Roytberg Legal Alert

2011-08-30T22:12:00.010-04:00

Mediator successfully quashes a subpoena in Suffolk County -
Rosenthal v. Rosenthal, NY Supreme Court, Suffolk County, Justice Garguilo (August 5, 2011)

When the parties started their mediation, they signed an agreement with the mediator with the following clause:

To preserve the integrity of the mediation process it is agreed that neither Mediator, nor Mediator's records or notes shall be subject to subpoena by either Participant or anyone acting on either Participant's behalf in the event that this matter proceeds to litigation. Each Participant makes this covenant with the other as a condition of your agreement with each other to attempt mediation. Each of you also makes this covenant to Mediator to induce Mediator to serve as the facilitator of your negotiations. Participants agree to be responsible for any costs (including attorney fees) which Mediator might incur in order to prevent noncompliance with this paragraph.

In this case, both parties during a subsequent litigation joined in their desire to call the mediator as a witness to testify, but the mediator was against it. The court cited the New York State Manual for Administrative Law Judges and Hearing Officers and Judge Judith S. Kay's ADR Task Force report, which stated that “The mediator shall not be called as a witness at trial.” Justice Garguilo agreed with the mediator that as a matter of public policy confidentiality was important. However, he noted that in this case both parties wanted the mediator called. The court’s decision to quash the subpoena finally rested on the fact that the parties contracted with the mediator by signing an agreement with the clause noted above. The Court chose not to disturb their contract.

THE TAKEAWAY: - For Mediators : include this language in your retainer agreements. For Parties: make sure you understand the consequences of contracting with the mediator to keep him/her out of court.

The Making of a Parenting Plan

2011-08-24T23:29:00.000-04:00

“When you teach your son, you teach your son’s son…” – The Talmud

Children are precious. They are incredibly unique and yet they carry within them characteristics and mannerisms of our favorite ancestors, - a familiar twinkle, a turn of the head, a dimple on the left cheek… Yet for a family in conflict these wonderful traits and mannerisms sometimes serve as an unpleasant reminder of the other spouse’s hurtful actions or annoying habits. It often takes a force of will for a parent not to snap, “You are just as stubborn as your father!” or “You are incompetent, just like your mother!” When parents are unable to control their outbursts their children suffer. They learn to hide their true feelings, to try and fit into the acceptable mold anticipated by each of the “enemy camps” they visit on alternate weekends.

It does not have to be that way. Most parents truly love their children and want them to become happy adults. This love can actually unite rather than divide the parents who are involved in a divorce or separation process, and often a lot depends on how the actual conversation about the children is begun.

In any family dispute that involves children whether it is a separation, a divorce or some other negotiation, parents need to devise a parenting plan which will address such questions as:

Do we make decisions jointly?
Does one parent have the final decision making authority in case the parents disagree?
How will parenting time be divided?

Depending on the model of the process used there could be different ways in which these questions are addressed and the ultimate creation of the plan is accomplished.

Mediation

In mediation, the mediator will sit down with the two parties (and their lawyers if they choose to bring them) and review together the unique situation that exists within the family. The mediator will then help the parties come up with an appropriate parenting plan by facilitating a discussion and empowering them to agree on the best way to make decisions on behalf of the children.

In rare cases where there are specific disagreements on certain issues or professional input is needed, the mediator might suggest that the parties seek advice of a psychologist, child specialist, or another professional to clarify those issues.

Collaborative Process

In a Collaborative process that uses a collaborative professional team model the parents will have two lawyers, each representing one of the spouses and a child specialist who is usually a mental health professional. The child specialist may meet with the lawyers and the parties or may just meet with the parties. Based on his or her experience in the mental health field, he or she will help them work out a parenting plan which is then summarized and given to the lawyers to draft.

Traditional Court Process

In the traditional court model, when the case for divorce appears before a judge each side is usually represented by an attorney. If they cannot agree on decision making or parenting time, they are considered to have a custody dispute.

In a custody dispute, the court will appoint what was previously known as a Law Guardian but is now called an Attorney for the Child. This is a separate lawyer who is trained specifically to represent children of different ages and whose role is to advocate for the interests of the child in the divorce process. Depending on the age of the child, the Attorney may echo the child’s requests and desires or substitute his or her own judgment. The Attorney for the Child will interview the parents and possibly other people such as caretakers, pediatricians or teachers. He or she will then come up with a recommendation to help the parents decide what is best in terms of the parenting time and decision making for the child. The Attorney for the Child also makes recommendations to the court.

If a dispute still cannot be resolved, the parties will often reach out to a forensic psychiatrist who will perform a more thorough forensic evaluation. He or she will interview both the parents and the children and then write a report to be later used at trial to recommend what kind of parenting arrangement is in the child’s best interest.

One thing that most judges and child specialists would undeniably agree on is that in most cases what is ultimately in every child’s best interest is for the parenting agreement to be devised by the people who know him or her best – i.e. the child’s own parents. Children should be spared and kept out of the court process. They must be sheltered from being dragged through a hostile divorce between two people whom they love the most. Ideally, all parenting issues should be resolved through Mediation or Collaborative Negotiation, so that the children can hold on to their childhood and, in the words of George Eliot still feel that “the acorns and the swallow’s eggs are a wonder”…

The Consequences of Equality

2011-07-20T20:58:00.000-04:00

“Any intelligent woman who reads the marriage contract, and then goes into it, deserves all the consequences.” ~Isadora Duncan

Recently the New York State legislature finally passed changes which now permit registration of marriages between persons of the same gender. Many rightly celebrate the triumph of equality under the law, yet for some, the prospect of “legalizing their relationship” may evoke concerns about the potential transformation of something special into something “legal” that can be regulated and ultimately dissolved through a divorce process. In his 1908 work, entitled “Getting Married”, George Bernard Shaw wrote, “When two people are under the influence of the most violent, most insane, most delusive, and most transient of passions, they are required to swear that they will remain in that excited, abnormal and exhausting condition continuously until death do them part.” Of course, that was satire, but the Hand of the Law and Government is now firmly involved in the households which choose to register their same-sex marriage in New York, and this, ladies and gentlemen, brings with it all of the legal consequences of matrimonial law. Let us take a look at just two areas which will be affected by these changes.

Parenting Issues

Before: If a same sex couple wanted to adopt a child they needed to go through a very serious adoption process. Even if the child’s biological parent is one of the partners in a same sex relationship (two women and one of the women is the biological mother of the child; two men and one of the men is the biological father of the child), the second partner would have to go through a “Second Parent Adoption” process in the courts in order to become the legal parent of the child. This way, if the relationship between two same-sex partners deteriorated, each of them would have parental status, regardless of the existence of a biological connection. If no formal adoption took place, rights of the biological parent had clear priority.

After: The existing New York family and divorce law presumes that a child born within the marriage is the legal child of both parents. New York Courts strongly oppose attempts to delegitimize a child of the marriage, and although this presumption is rebuttable, the burden of proof is quite high.
Logically, when applied to same-sex marriages this law should obviate the need for a Second Parent Adoption, as each parent should have legal status as long as the child is born after the date of the marriage.

Equitable Distribution – Real Property

Before: if a same sex couple lived together for over 20 years and owned a piece of property, the legal owner would generally be the person(s), whose name appears on the deed. Thus, if two partners jointly owned their house, each would have rights to the property. If only one of their names was listed on the deed, only that person would be considered the owner. Even if they jointly own the property, since the parties were not considered “married” when it was purchased, dividing it, if they cannot agree is rather difficult and often requires a “partition” action unrelated to dissolution of their relationship.

After: All property acquired after the date of the marriage is presumed to be joint property, even if it is acquired in the name of one of the spouses only. The other spouse is usually entitled to his/her equitable share (in most cases 50/50) of the property. If the parties cannot agree on what to do with their property, these issues are resolved by the same matrimonial judge, as part of their divorce process. There is no need to commence a separate action in a separate court.

In short, the State now has the legal right to “meddle” in same-sex relationships, which choose to register their marriages. Will the legal institution of marriage, now that it is available to all, remain appealing to so many? I suppose, the good thing about it is that the questions and answers related to “To Wed or Not to Wed” will now be the same for couples of same and different gender, and this is what we call “equality”.

Unbundled Services or Limited Scope Representation

2011-06-15T23:56:00.007-04:00

“The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings.” – Charles Dickens, “Bleak House”

During the tough economic climate of the last couple of years, people’s needs for legal services have increased tremendously. Unfortunately, their ability to pay for lawyers has drastically diminished. While those below the poverty level are able to qualify for free legal advice, middle class clients who are barely able to pay their everyday bills are finding themselves in a predicament where they have to completely drain their limited financial resources if they need to hire an attorney to represent them in a traditional litigation. Particularly in family law cases in New York, people usually pay a hefty advance retainer in order to start a case. While most clients don’t feel confident enough to represent themselves in court, they don’t have the financial resources to hire an attorney and pay tens of thousands of dollars right away.

Over the past decade many paralegal or non-lawyer type agencies sprang up across the country and especially in New York. These agencies help clients prepare basic legal documents in uncontested divorces, bankruptcy filings, incorporations or immigration petitions. In some cases the paperwork is prepared incorrectly and the people who are doing it are really unqualified to provide an appropriate legal service or needed legal advice. There is definitely a need for competent legal advice but at a reasonable cost.

Lots of small firms and solo practitioners are willing to offer reasonably priced legal advice. They can meet with clients for concrete consultations. They can help them prepare documents through the “unbundled or limited scope services” model. In this model the lawyer is not really retained to represent the client from start to finish but is retained for a specific limited task either to counsel a client who is representing himself or herself during a court case, to prepare a specific document, or respond to a specific letter.
For example, the lawyer may:

Give advice and information during a consultation;
Coach a client on how to negotiate with the other side;
Coach a client on what to expect and how to behave in court;
Help draft an answer or complaint
Prepare discovery documents in a litigation case or a motion; or
Appear in court in some type of a limited capacity.

Rather than being retained to handle the entire “bundle” of a case, the attorney unbundles the service and only performs a certain portion of it. The client saves a lot of money by being able to get the benefit of the lawyer’s advice then do his or her own work instead of just sitting back and having the lawyer handle all of it.

The Small Law Firms Committee of the New York City Bar Association has recently issued a report on best practices for small firms. In it is a section that specifically describes how limited scope representation works and how it can help clients.

While this approach is not a panacea for all types of cases, it may provide many people with an effective method of obtaining competent legal help.

Click Here to view the New York City Bar Association report.

In my practice, I use a separate retainer form for limited scope representation. It outlines specifically what I am hired to do and outlines specifically what the client has committed to do on his/her own.

Often clients who have run out of money in litigation would come to me asking for consulting advice, as they continue to represent themselves in court. They need a consulting attorney who is going to explain to them how to navigate the court process. Clients pay me for the hour of consultation. The next time they need my help they may pay me for my time as well, but I am not really representing them in a case. They receive appropriate legal advice which helps them feel more confident, save a lot of money and effectively represent themselves in a legal process.

Mediation - The First Session

2011-05-23T20:19:00.000-04:00

Many people want to know what we do during the first mediation session. In that session, whether it is a family or business mediation, we usually start by reviewing and discussing what the process will be like. Sometimes people say:

“Well isn’t this just a waste of time to be going over the mediation agreement and the process. We already know what the mediator does, we know what we are supposed to do.”

But the success of the process really depends on both parties understanding it well and thinking in a way which is very different from the way they used to think or are told to think if they are involved in an adversarial process.

The mediation is designed to help them discuss issues and reach informed agreements. The focus is on their needs and on their interests not necessarily on what their rights are and/or what their entitlement is. This doesn’t mean that the result of the mediation would be very different from what would have happened in court but the process is very different and the way people communicate with each other is very different. If mediation is truly successful, the process and the mediator have helped the parties not only resolve the particular problem that they have come to solve, but have also helped them to move on with their lives and communicate/ resolve other problems going forward in a very different way than they had been doing before.

So it is extremely important to set the right tone at the beginning of mediation. What I usually do is go over the mediation process summary and agreement that the parties sign when they come in. This outlines the purpose of mediation and the role of the mediator.

It is very important for the parties to understand that the mediator does not make decisions and is not a judge. The mediator’s role is to facilitate their communication and understanding of all issues that need to be addressed. They also need to understand that they are involved in a voluntary process and in order for that process to succeed, they have to be fair to each other and willing to voluntarily exchange important information in order to make sure that each side is fully informed of all the issues that need to be addressed.

One of the most important things is communication guidelines. The most productive mediation atmosphere is created when each person shows respect for the opinions and attitudes of the other even when there is a disagreement. Difficult conversations can be improved if one speaks for him or herself and refrains from telling the other what that person needs, wants, or thinks. Sometimes, of course, especially in family cases, tensions are often high and in the beginning, people want to vent and accuse each other because there may be a lot of pain involved. When this happens, we can go back to the mediation process agreement and remind the parties:

Do you remember the communication guidelines that we went over?
Do you remember how to make this process most productive?
You both chose it; both wanted to do this in a different way, so let’s go back to that.

And that is another way in which going over this process summary is very important because throughout the mediation when sides veer off from the process we can then return to it and confirm that this is what we agreed on and that we should stay within that framework.

In the first session, there are other things that are important to go over, such as:

The level of confidentiality that is involved. What parties can or cannot expect.
The fees and the costs of the process and what will happen financially with the parties and their needs while the process is going on.
Mediation is not binding and any agreements that the parties reach in the sessions do not bind them legally to anything until they are set down in writing and signed and notarized as an agreement.
We are trying to provide a safe environment for them to communicate in and if it turns out that that environment does not appear to be safe for either of the parties or the mediator, you, the mediator, can terminate the sessions and say that this is not working. Mediation will only work when a safe environment is maintained.
Most importantly they must understand that the mediator is not there to provide them with legal advice. A mediator can give them general legal information but they are encouraged to reach out to separate council if they have specific questions about the law.

Mediation provides a safe environment and a neutral facilitator to help people resolve differences in a fair and equitable way. If you think you could benefit from a Mediation, please give us a call.

Mediation: Helping Achieve Clarity in a Business Formation Process

2011-03-24T12:09:00.000-04:00

“More important than the quest for certainty is the quest for clarity” – Francois Gautier

Sometimes relatives or good friends decide to go into business together. If they choose to form a corporation, they will need to prepare corporate documents and a shareholder agreement. If it is a partnership, a partnership agreement will probably govern the way business is done. As they sit down to formulate the way their new company would operate, these friend/relative partners often fail to take the time needed to discuss how to divide duties and responsibilities and/or how important decisions will be made in their new company.

Very often when things start out everything is wonderful. When Jeff and Susan decided to open up a deli, they wanted to do everything equally. After all, they are the best of friends and really think alike when it comes to running a business. They were both extremely excited with the prospect of having their own store and do not want to consider what would happen if they would disagree on an important matter, if one of them would become ill, or if one of them would no longer want to own a deli. When Jeff became gravely ill, Susan came to my office and we struggled, at the eleventh hour, to revise the buyout and disability provisions in a boilerplate partnership agreement, which failed to address any of these circumstances. We have found a way out, but it was a struggle that could have been avoided.

What often happens in small family businesses is that people come to a lawyer’s office and say, “We want to form a company.” The attorney then helps them prepare and file corporate documents and once they are done, drafts the agreement that describes how the business will be run. This lawyer usually represents the entity, which is being formed, and does not represent either of the partners. In other circumstances, the prospective partners informally visit an attorney who has had prior dealings with one of the partners. That lawyer drafts the partnership agreement based on what the parties instruct, but formally only represents the one partner. The other often chooses not to hire counsel; why waste money, if they trust each other? But the unrepresented partner is not adequately protected, the agreement is often boilerplate and it does not reflect contingencies which may occur in the partnership or the corporation.

In matters of business formation, mediation can serve as an effective tool to help partners identify potential areas of concern and figure out ways to address them to their mutual satisfaction. The partners can meet with a neutral attorney/mediator who is also familiar with what it takes to form a business or to draft a partnership or shareholder agreement. The neutral mediator can sit down with them and facilitate a conversation that will illuminate all the issues that could possibly come up in their co-ownership of this new business, deal with their concerns, and help them reach an agreement on each one of these items ahead of time so they know that if these points arise in the future, they have developed an effective mechanism for dealing with them. Once drafted, the partners can then share the draft with their individual attorneys, who can advise them as to whether the agreement really reflects what they want to do.

Using mediation during business formation provides a better, cleaner, more comprehensive approach and avoids inevitable conflicts of interest that may arise when an attorney for the entity or for one of the partners is asked to take on this role. The mediation process is also able to be effective, while maintaining the amicable relationship between the partners, and preventing them from feeling awkward about discussing and negotiating business terms with their best friend or close relative.

You Have a Choice

2011-02-21T20:55:00.000-05:00

People who are going through a separation or a divorce are often frustrated with the emotional and financial cost of the divorce process. They seek a fair and cost-effective solution that will enable them to get closure. At the same time they want to ensure that someone will adequately address their concerns. The initial choice of process in their family dispute will often determine its outcome.

As Leo Tolstoy remarked in the opening sentence of his novel, Anna Karenina, “Happy families are all alike; every unhappy family is unhappy in its own way.” In my office, we take that statement to heart.

During my initial meeting with a potential client I try my best to understand in depth the unique emotional and financial issues facing my client and his/her family. We then discuss the choices of an appropriate process in view of that client’s unique family circumstances and unique family dynamic.

Are family members able to have a conversation while they sit in the same room?
Is there a history of physical or verbal abuse?
Is there a power imbalance?
What is the level of education or sophistication of the partners when it comes to family finances?
What is the level of the case’s complexity? Parenting disputes, Mental Health issues, Businesses, Pensions, Homes, Degrees, Debts, etc.
What are the financial circumstances of the parties and how much money can the parties afford to allocate to their divorce or separation process?

In the ideal situation, family divorce mediation should always be the first option for separating or divorcing couples. In mediation, an experienced, well-trained neutral mediator helps facilitate a conversation between the parties and, through a series of sessions, helps them reach an agreement which works for their family in a unique way. The partners to a dispute are much more likely to comply with a mediated agreement, which they themselves have negotiated with each other, taking into consideration the unique needs of their family. The statistics on compliance with court verdicts and even settlement agreements reached in court are not nearly as positive.

However, mediation is not a panacea for every family dispute. Sometimes the parties cannot even conceive of coexisting in the same room during negotiations. Even if they can handle it, they may feel that each of them needs a firm ally, - someone who can advocate for them during the negotiation process. They can use lawyers during mediation, but want someone who would actively represent them during each and every negotiation. For those parties, the collaborative divorce process may be more appropriate than the mediation process. I will address the details of the collaborative law process in a different blog, but if you would like a quick glance at it click on this link. http://www.goodlawfirm.net/Practice-Area-Overview/Collaborative-Law.shtml.

And then again there are other times when the parties are not able to sit in the same room and can’t even stand looking at each other. Of course in those circumstances probably neither collaborative divorce nor mediation will work, at least not in the beginning. In such circumstances the traditional divorce process is appropriate, with lawyer-to-lawyer negotiation, if possible, or immediate commencement of a lawsuit.

Although mediation is not a cure-all for every case, in 95% of the cases that I see in my office it should at least be attempted. Even when the parties’ first mediation session consists of screaming at each other, it does not necessarily mean that the mediation process would not ultimately succeed. During the alternative dispute resolution process the spouses actually learn how to communicate with each other and they carry this knowledge to their future. At the end of the day their relationship and the way it affects those they love is transformed, and they are better equipped to go on with their lives and effectively co-parent their children post-divorce.

Mediation and Killer Shoes

2011-02-07T15:19:00.000-05:00

Thursday, January 20, a new TV show debuted on the USA Network called Fairly Legal. The show is about a Mediator and while it is obviously show business, shallow and meant to attract an audience, it is still the first show that actually portrays mediation as a profession.

The central character is a mediator and the show is about her and the real job that she does. She is cute and sexy and runs around in these killer high heeled shoes but is not some flakey person like mediators portrayed in the movie The Wedding Crashers. She is smart, intelligent and was a lawyer but decided to quit the law because she felt she could do more good as a mediator.

The show obviously does not portray Mediation the way it is or should be done in terms of how the process takes place, but it does introduce the public to and give information about Mediation. It shows that Mediation is an alternative dispute resolution tool and something that a judge doesn’t do or can not handle. It is also something that a lawyer cannot handle.

The show illustrated the value of Mediation through 3 different scenarios. The first was as she stopped for her morning coffee and stepped into a robbery in progress. Before things could escalate into violence, she asked the would-be robber what he wanted and what his needs were and then asked the same thing of the store owner. That piece of mediation most closely resembles what is supposed to happen in real-life although it was in an absolutely ridiculous setting.

The common message of all of the scenarios was that the Mediator was delving much deeper into the issues that were underlying the actual cases, and it is this more profound approach that actually helped the parties come up with a better solution than otherwise would have been available to them – through the legal system.

Does following the letter of the law really work in achieving the fair result? Or does it often fall short? The Mediator does not analyze and apply cases and statutes to a given problem, as would a Judge or a lawyer. She tries to delve into people’s interests and needs, in order to help them find a real long term solution that is going to work for everyone.

And did I mention? She wears killer shoes!!

And the Winner Is . . . . .

2011-01-13T19:46:00.000-05:00

“Litigation ... merely continues conflict and offends nature; it does not heal.”

– Confucius

In a recent NY Times article, entitled “Religious Divorce Dispute leads to Secular Protest” Mark Oppenheimer describes how a recently divorced Jewish man, Aharon Friedman, who serves as tax counsel for the Republicans on the House Ways and Means Committee, has become the subject of scrutiny and rallies due to his alleged refusal to give a Jewish religious divorce, called a “GET” to his ex-wife. At the center of the parties’ litigious dispute is their 3 year old daughter and a custody court order, which, according to Mr. Friedman, deprives him from spending quality time with his child.

Historically, the “GET” issue has been a tough one. An observant Jewish woman cannot remarry within the faith without a religious divorce, which can only be given to her by her husband. In recent decades various groups have emerged to help women ensure that their husbands do not withhold the “GET” for strategic reasons. (This is why in a New York State divorce proceeding, a litigant must actually swear that he/she will remove all barriers to the other person’s remarriage before a Judge would grant a divorce). According to Mr. Oppenheimer some of these groups have been actively trying to help Tamar Epstein get a religious divorce from Mr. Friedman.

According to the article, the mother accuses the father of “psychological terrorism” and the father is angry about the “religiously insensitive” custody order, which starts his visits with the child after sundown on Fridays, making it impossible for him, as an observant Jew, to exercise visitation until Sunday.

The article goes on to describe the details of the litigious process that the family has undergone both in the religious Jewish court, “Beit Din” and in Maryland Civil Court. Yet the most important issue is not addressed at all. Who wins? The real result of all this is a sad one. Instead of moving on with their lives and effectively co-parenting their daughter, these parents continue to be enmeshed in hostility and conflict.

If this couple has had the opportunity to meet with an experienced mediator early in this process, perhaps much of this could have been avoided. The parties could have negotiated a parenting plan, which would be uniquely tailored to fit their needs, religious observances and sensitivities. The Wife would have received the “GET” and through the mediation process maybe this couple would have learned to communicate as partners in child rearing of their daughter, whom they both undoubtedly adore.

No-Fault Law Strings -- Temporary Spousal Support Formula

2010-12-23T18:50:00.000-05:00

“Everything is more complicated than you think.” - Charlie Kaufman

To follow up on my prior blog post, the new No-Fault Law in New York did not come without strings attached. One of those strings has to do with the spousal support formula that came into effect as part of the new matrimonial legislation.

Before October of this year, in the State of New York, child support was calculated pursuant to a formula that has been in effect for decades. When it came to spousal support, which means the money that the spouse that makes less money would receive from the spouse that makes more money following a divorce, there was no formula or guideline to follow.

There were some generally accepted guidelines and a list of factors for a judge to consider. Some of these were based on:

Case law
Length of the marriage - The longer the marriage, the bigger the chance that the non-moneyed spouse would be awarded some kind of post-divorce monthly income.
Ability of non-moneyed spouse to be self-supporting - whether the non-moneyed spouse was able to get a job or had the education and/or skills that could transfer into some type of employment
Lifestyle of the marriage

As an example, let’s say we have a marriage where the husband makes about $100,000, the wife is a homemaker and the marriage is more than 25 years long. The children are grown but the wife doesn’t have any skills or education that would allow her to make more than $20,000-$30,000. In this case, there would be some kind of maintenance that would be awarded for a certain length of time.

In recent years it would be very rare to see an award of lifetime maintenance unless it was clear that the non-moneyed spouse could never work or there was some kind of a serious medical issue or serious fault on the other side. If the wife cannot work at all often the duration of maintenance was tied to the date of retirement of the moneyed spouse. So let’s say, in the standard situation, the husband who earns $100,000 retires approximately at the age of 67. The court may decide that the wife will get some kind of maintenance until he retires, at which time the wife, instead of maintenance will get half of his pension.

Courts in New York State are divided into four different departments. The first Department, for example, includes the island of Manhattan. The second would cover Queens, Brooklyn, Long Island, etc. There was often disparity among the four Departments in terms of how the maintenance was calculated so, the amount and duration of the maintenance varied depending on the department you were in and the judge you were in front of.

As of October, the legislature came up with a formula, but the formula addresses only temporary maintenance, temporary meaning during the pending of the lawsuit. If the parties filed for divorce, in the beginning of the divorce process, there can be a motion made by either party for the courts to set some kind of temporary orders of child support and maintenance. This temporary maintenance will be in place for the duration of the court proceeding and that is what is really addressed by the statute.

Before, the courts would still order temporary maintenance, but there was no formula used to calculate the amount. The new formula does take subjectivity out of that piece of the process, but it doesn’t give us enough guidance to say “well, this is the formula that should be applied as permanent maintenance and this is how long this maintenance will be payable.” However, it is possible, that ultimately, judges are going to use the new maintenance formula as a guide in the way that they look at maintenance awards going forward.

Basically the formula is this:

Income < $500,000

A. 30% of Payor Income - 20% of Payee Income

B. (Payor Income + Payee Income) x 40%

C. “B” - Payee Income

D. Use the lower of “A” or “C”

If “C” =0 ===> maintenance = 0

Income > $500,000

Use guidelines up to 500K ==> additional maintenance based on the factors

One problem with this formula is that it does not really address the duration at all. It will tell you how much the monthly amount should be, but it does not tell you how long it should last. It doesn’t say if the marriage is 10 years long you pay this maintenance for 3 years or anything like that. That is still up to the courts and the judges, who are very subjective. They are supposed to determine duration based on a number of factors that are asserted in the statute but it is still a list of factors and dependent on the judge’s interpretation. The long and short of it is that litigating the divorce is still extremely unpredictable and dependent on which court they are in and which judge they are in front of.

But when it comes to the final financial picture of a family going through a divorce process, the new maintenance formula provides little guidance. It doesn’t really give us any sense of predictability as to what a particular court would ultimately decide to do in a given situation. So it is still quite a gamble for a husband or a wife to say “I would rather have a judge determine the issue of maintenance”. A spouse may think that he or she would do better in court, but a lot still depends on how a particular judge would decide to use the new formula in making the final decision on maintenance.

The best way to achieve a good result is still for the couple to negotiate with each other the fair amount and duration of maintenance in a safe and productive environment with the guidance of neutral professionals and/or lawyers who will help them reach the best solution in the most cost-effective process.

Some families come to mediation with a good idea of what is fair, and even after they receive information of what is likely to happen in a litigated divorce, they still decide to follow their own sense of “fairness”. Then there are others that come in and say, “Well what would the court do?” For them, what’s important is to negotiate something that is not very far from what they would get in court. The new formula can be helpful in the latter case, since it gives people the opportunity to plug the numbers in and see what might happen on a temporary basis if a court process is started.

Most people seek mediation during a separation or a divorce, because they hope that staying out of court would allow them to move on with their lives with dignity and remain in a civil relationship with each other, their children and their extended families. Others are attracted to divorce mediation to save money on legal fees. Both are valid reasons, and in most cases, the mediation process should be viewed as the ideal option for families in transition.

New York Becomes a "No Fault" Divorce State

2010-12-08T13:49:00.000-05:00

“Common sense is the knack of seeing things as they are,
and doing things as they ought to be done.” – C.E. Stowe

Finally, after decades of resistance, New York decided to join the other 49 states and offer a “no-fault” divorce option to those couples who want to simply part ways without having to accuse each other of some type of wrongdoing. It took many, many years to get to this point. Every time there would be a proposed bill to add the “no fault” provision to the law it would be defeated because of the resistance from different types of concerned groups and lobbying efforts. Finally this year, it did pass.

What does “no fault” mean? Before, in order to divorce in New York State you needed to come up with a “fault” ground, which means that one spouse had to accuse the other of something. If you had a couple where both sides were in agreement that they wanted to divorce right away, there was no option such as “irreconcilable differences”, which has existed for decades in other states. The only way couples in New York could divorce without being forced to accuse one another was to execute a separation agreement and then wait a year. They could then assert “living pursuant to the terms of the separation agreement for a year” as a ground for divorce. The new “No Fault” ground allows parties to submit divorce documents to court right away without having to wait a year or having one side accept the blame for wrongdoing.

Why the resistance to “no fault”? Historically, some religious groups resisted it because of their concern that if getting divorced became “too easy” people would not try to make an effort to stay together.

The other groups that were against it were those having to do with domestic violence. These groups advocated for victims of domestic violence, both men and women, though statistically women were more often the victims. The primary concern was that if the husbands had the opportunity to get out of a wrongdoing reason for divorce, they would be able to file very quickly, and then use the spouse’s fear to cheat them out of a claim of financial support or equitable distribution of marital assets. For decades there was resistance based on that, but in recent years, some of the members of the organizations that fight domestic violence, came to realize that the abusers tended to be pretty successful in manipulating the court systems even with the wrongdoing grounds, so that wasn’t really helping the victims.

Thus, finally, as of October 12, 2010 you can get a “No Fault” divorce in New York if, according to either party, the marriage has broken down irretrievably and has been broken down irretrievably for at least six months. This doesn’t mean that the couple has to be actually separated for the six months; they just have to state that the marriage was completely broken down for the past 6 months. Now one side can unilaterally allege that the marriage is irretrievably broken and submit a claim for divorce on the basis of this new ground.

This legislative breakthrough did not come without strings attached, however, and there are many strings. The new law only really helps remove the grounds as an issue in a contested divorce, but couples still have to resolve all of the other issues having to do with the children, with child support, with spousal maintenance, and with division of property. Unless all of these are resolved, they cannot get the divorce. If they cannot reach an agreement on all matters, the issues of custody, child support, spousal support and division of property will still go through the court process, but at least the issue of grounds will not.

All families are "Broken" and then "Blended"

2010-08-03T18:09:00.000-04:00

"Marriage customs bring together two people from different lineages and place them under a common roof. By definition, marriage is a joining of unlike elements. Even when the bond is strong, a seam both connects and divides husband, wife and the web of in-laws they bring to the table. A couple’s biological offspring really are a blend, but the rest of the family is patched together." - Ellen Lupton, "In Praise of the Broken Home", New York Times, August 2, 2010

Imagine, that in addition to joining the "unlike elements" under a common roof and then blending the family through the birth of several children, this blended family now emigrates to the United States from a country like India, Uzbekistan or Japan and settles in the County of Queens, City and State of New York.

To complicate matters, the older husband has a hard time mastering the language and his younger wife is able to go to school, get a job and succeed financially. "Over there" he was an important man, who provided for his family, but "over here" life is different. As his wife works and becomes more independent, he begins to feel worthless, while his children become Americanized and "disrespectful." Sounds familiar?

Unfortunately, such is the plight of many families with strong traditional ties who "uproot" themselves and move to a new country. The rift between parents and children and husbands and wives widens and the extended family members seem unable to comprehend that sometimes adjustments must be made. "In the old country people did not divorce, the husband managed the money and the wife managed the household. The children knew 'their place' ".

One can only imagine the complexity of emotional and cultural issues that such a family must experience if the couple faces a divorce or a separation. However, divorces happen more and more often and have become a regular fact of life in such courts as Queens County Supreme Court in New York City. Queens County is the most multi-cultural county in New York State. It brings together and "blends" hundreds of nationalities into a flavorful stew of small neighborhoods, which usually peacefully interact with each other. However, when the family dispute overtakes them, many members of the extended family find fault with the national original of the other party: " I told him not to marry a girl from ____ city, they don't make good wives".. While everyone is looking for a unique reason why a divorce is inevitable, in reality it is often the unfortunate consequence of too much "breaking" and not enough "blending" in a family of recent immigrants.

In any event, it is imperative to find a culturally sensitive solution for the separating couple and their family, - the type of a solution that would work as they struggle to preserve their national identity and, at the same time, adjust to their new American way of life in a positive way.

On Transformation of a Stressful Marriage into a Separation with Friendship

2010-08-01T14:00:00.000-04:00

"Ever has it been that love knows not its own depth
until the hour of separation." - Kahlil Gibran

In a July 30 New York Times Article, entitled "The Un-Divorced", Pamela Paul discusses a phenomenon of long term separation as the alternative of choice to a divorce for a growing number of American couples of all ages. Often, decision to remain legally married is financial - one spouse's eligibility for the other's social security benefits or health insurance may be extinguished by a divorce.

However, for some couples, a long term separation replaces the irritable hostility of daily life with a distant friendship between two people who still care deeply about each other, but simply are unable to co-exist under the same roof. People may remain happily separated for decades until a death or a new old-fashioned romance prompts them to "legally" turn the page and move on.

For those of you who find themselves personally relating to this, please note, that it is absolutely imperative for separated couples to have a legally enforceable separation agreement. Although, by signing such an agreement, you remain eligible for each other's health and other benefits, you can definitively protect yourselves and each other against disasters, that may intervene and are outside of your or your spouse's control. If one of you becomes ill and the insurance is insufficient to cover the bills, the other spouse and his/her assets can be tapped to cover the ailing spouses medical bills. In a Separation Agreement, you can specify that each of you is responsible for his/her own debts and liabilities. You can waive rights to each other's estates, to each other's assets, homes, cars and valuables.

The money spent on a mediator to negotiate and then on lawyers to review and finalize the Separation Agreement is minimal in comparison to the financial exposure each of you would avoid in the future.

Thoughts on Anne Barnard's 02-04-09 New York Times Article "2 Doctors, a Custody Battle and an Execution-Style Killing"

2009-02-09T23:24:00.000-05:00

"Those who hate most fervently must have once loved deeply;
those who want to deny the world must have once embraced
what they now set on fire.” --- Kurt Tucholsky"

More than a year ago, lives of people in the peaceful community of Forest Hills, in which I live and practice family law and divorce mediation have been turned upside down. Allegiances are firmly split. You MUST either hate the mother’s family or the father’s family in the glorious tradition of Montagues v. Capulets, Malakovs v. Borukhovs. A father’s life is lost. A mother is on trial for murder. A childhood destroyed.

This horrible drama has defined the dynamics of family disputes in the Bukharian community for the past year and may continue to do so for years to come. As the stories will continue to pour out of newspaper headlines during the next few weeks I invite you to explore the course of the escalation of the Malakov/Borukhova family conflict from a separation to a murder.

Did these parents know that they could choose alternative dispute resolution before coming to court? Did their attorney/judge or anyone who addressed them at the start of litigation, educate them about the existence of divorce mediation? In a close-knit community, consisting primarily of Jewish immigrants from Uzbekistan, the extended family’s role in advising the young and raising grandchildren is critical. Shouldn’t extended families be educated about how family mediation can help resolve custody disputes?

ON CHILD SUPPORT AND CHILDREN IN NEW YORK

2009-01-22T22:03:00.000-05:00

Whatever happened to a sense of idealism and embracing
an idea that will help people, and in this case, children?
-- Rod Blagojevich

Isn't it ironic to whose judgment we often entrust most precious and vulnerable members of our society - our children? Just look above. The laws and statutes in New York State appear easy. After all, there is a simple formula with child support percentages which judges in Family Courts usually plug into their computers to make sure that the correct number pops out. This number is meant to quantify how much money your child needs for food, clothing and shelter. And then there are the extras. Does your son need a tutor to prepare for a specialized school entrance exam? Does your daughter exhibit a special talent and should parents contribute to extra ballet classes? Then the next question arises, - can you afford to pay? And what about college?

In a recent decision, where a divorce agreement between the parties was silent on the issue of college costs, a judge required the father to pay 85% of the child's college expenses based upon the cost of SUNY (State University of New York). The appellate court agreed with the decision, which was based upon a rationale that both parents were college educated, could afford to pay and their daughter was performing well in college. However, the court held, that the judge erred in failing to offset the father's the child support payments against his contribution to college expenses. Reiss v. Reiss (2008 N.Y. Slip Op. 09234)(Nov.21, 2008).

The moral of the story? Make sure that your settlement agreements now (even if the child is 3 years old at the time of your divorce) include a college expense provision and that the issue of whether child support would continue to be paid during the child's college years is appropriately addressed in the agreement. Otherwise, you are relying on the state of the law 15 years from now as well as a future judge's state of mind.

CAN YOU AFFORD A DIVORCE?

2009-01-08T15:52:00.000-05:00

What a holler would ensue
if people had to pay the minister as much to marry them
as they have to pay a lawyer to get them a divorce.

-- Claire Trevor

Some of the factual circumstances surrounding real divorces are often so incredible that even a film studio would consider them too far fetched for a movie. Just in one week I have witnessed two extremes. One was a court case in Nassau County, New York where a Surgeon-Husband demanded, that his Wife return to him the kidney he donated to her, or pay $1.5 million in lieu of the "pound of flesh". I wonder if counsel intend to refer to the Merchant of Venice in that case.

At the other extreme is the father who consulted with me yesterday. He and his wife have 3 children, ages 2, 4 and 6 and they live in a rental apartment which costs them $1200 per month. There are no assets, the mother does not work and he earns $50,000. The parties were engaged in constant arguments, and the husband moved out 3 days ago. As he sits in my conference room and describes to me the details of his predicament, I wonder, "How can this family afford a divorce"? If these parties end up in court, they will probably pay each of their lawyers hefty retainers ($10,000 per side). If the mother retains primary custody, the father will have to pay 29% of his $50,000 income in child support and possibly some spousal support to the mother. In addition, he will have to get an appropriate apartment himself, so that he can house his 3 children during his parenting time. Even if the mother agrees to get a job, how much can she possibly earn with no work experience and limited qualifications amid an economic crisis at this time? $20,000? $25,000 if she is lucky?

The only way these cases can be effectively resolved is through mediation, where spouses pay one hourly fee to a qualified mediator who helps them address and resolve their financial and parenting issues. Through a series of mediation sessions the mediator facilitates an agreement that actually works for the parties and then puts it on papers. Then the husband and the wife can review the terms with their attorneys, sign it and go on with their lives. Thus the parties can conceivably only pay 2 consultation fees to their lawyers, plus mediation and agreement fees and greatly minimize the cost of the process. Not to mention that in mediation they also learn to communicate and resolve issues which may arise in the future, thus minimizing the cost of handling post-divorce disputes for years to come.

2009-01-05T09:42:00.000-05:00

Family quarrels are bitter things. They don't go by any rules.
They are not like aches or wounds; they are more like splits
in the skin that won't heal because there's not enough material.

- F. Scott Fitzgerald

Welcome to 2009!

The Holiday Season is usually particularly challenging for families in crisis. How should we divide parenting time during children's vacations? Is it better for kids to spend Christmas Eve with Mom and Christmas Day with Dad, so that they can see both parents and extended families? Or, is it better for everyone's peace of mind to alternate December holiday time on a yearly basis, so that the children are staying in one location and are not constantly being shuttled around? What have we done in prior years with our extended families? How can we, as parents, lead separate lives, while minimizing the damaging impact of a fractured holiday time on our children?

During the children's winter holidays most family lawyers and mediators receive barrages of calls from extremely stressed parents, who finally heave the sigh of relief after the arrival of the New Year and the children's return to their school routine.

Believe it or not, but it is actually possible to have a workable and predictable parenting plan which will allow children to look forward to the holidays rather than worry how to navigate the troubled waters between households of their overstressed parents. If you haven't worked this out already, make it your number one priority in 2009.

CHOICE OF PROCESS FOR VICTIMS OF DOMESTIC VIOLENCE

2008-11-14T15:12:00.000-05:00

"Force is all-conquering, but its victories are short-lived" - Abraham Lincoln

For decades the well established rule has been that we, as family and divorce mediators, must screen out cases which involve a history of domestic violence (DV) and refer victims to DV counselors. Most of us still adhere to the rule that cases which involve domestic violence should not be mediated at all. However, as noted by Dee DePorto, Senior Clinician of Psychological Counseling Center at SUNY New Paltz, when we prevent the victim from having a choice to participate in a mediation we, in essence, contribute to the pattern of disempowerment, with which she is all too familiar already.

Many victims of domestic violence fear repercussions from an abuser if they go to court, obtain an Order of Protection or contact the police. The abuser may actually effectively manipulate the court system and use it as a tool to further threaten victim - i.e. accuse her of mental illness, threaten to take away the children, etc.

Fo the last several years, the Domestic Violence and Mediation Safety Project of the Mediation Center of Dutchess County, Inc. has been conducting a bold experiment in empowering victims of domestic violence by allowing them to choose mediation, provided a detailed safety plan is in place. An experienced Domestic Violence consultant works with the Mediator throughout the process, creates a safety plan to be used during mediation sessions and focuses the mediator's attention on specific red flags which may come up during the sessions. If successful, this type of an environment can actually empower the victim to advocate for herself and the parties to make constructive decisions in mediation.

CHOICE OF PROCESS IF YOU SEPARATE OR DIVORCE IN NEW YORK

2008-11-13T17:39:00.000-05:00

"Litigation… merely continues conflict and offends nature
it does not heal." – Confucius

How many of your friends, clients and family members are going through an acrimonious divorce and need help? Our court system is based on adversarial principles. However, when spouses are going through a divorce they, as people, are often vulnerable, emotional and irrational. While they are in that state their judgment is often impaired, and yet they must make some of the most important personal and financial decisions of their life.

When parties separate, they must first address their immediate needs. How will the mortgage be paid while we are deciding what to do with the house? Who will pay the bills and take care of the children? In a traditional litigation, the immediate needs of the parties are often addressed by motion when the action of divorce is filed. The structure of the court process necessarily reshapes the spouses into “adversaries” and escalates hostility between them. If the mother, Jane seeks temporary custody, her lawyer will often paint her as a saint and demonize the father, Tom. If Jane needs temporary financial support, her counsel may exaggerate both her financial difficulties and Tom's income. In response, Tom's attorney may argue that Jane does not spend enough time with the children and that Tom's income is really minimal. What do you think happens when Jane and Tom read each other’s affidavits?

As a matrimonial attorney who has seen her share of nasty divorce cases, I can tell you that the last place where parents and children, who undergo the emotional trauma of divorce should end up is in court. Our litigation system forces one partner to take a "position" against the other. Sometimes, it even forces children to choose between parents or to abide by a choice made for them by a total stranger.

It is unfortunate that many people are not told by their lawyers that there are other alternatives to a litigated divorce. Some states actually require lawyers to inform their clients about it, but in New York we are not yet "that advanced". After all, we don't even have a real "no fault divorce" yet, either.
However, there are other excellent options for divorcing and separating partners in New York State, such as divorce mediation and collaborative divorce. To learn more click here:
http://www.goodlawfirm.com/

If you have any questions and/or comments about divorce mediation and collaborative divorce please post them here.