Is an Uncontested Divorce Right for You?

If you and your spouse have already agreed on:

• How to split up your home and other real estate
• How to divide your retirement assets and business interests
• How to divide your debts
• How you will make decisions for your children, and how you will resolve disagreements in making these decisions
• With whom will the children maintain primary residence
• The parenting schedule during the school year, summers, school breaks and holidays
• The amount and duration of child support and spousal support
• Who will claim the Children on his/her tax return
• What type of additional expenses you will share for the Children and how responsibility for these expenses will be divided
• Who will maintain health insurance for the children, will there be health insurance for each of you?
• you may be able to obtain an Uncontested Divorce.

The Process

To begin an Uncontested Divorce, one spouse is designated the Plaintiff and the other the Defendant.  Usually the Plaintiff completes and files most of the paperwork. Click here to read more.

Choosing to Adopt? We Can Help!

In today’s world, more and more families, particularly in the United States, are choosing to adopt children. The Law Firm and Mediation Practice of Alla Roytberg, P.C. has recently expanded its practice to include adoptions.

For many, the adoption process may seem overwhelming:

• Should you adopt domestically or internationally?
• Do you want to formalize the relationship with an existing child in your family through a step-parent adoption?
• Are you a same-sex couple trying to decide what types of legal paperwork need to be prepared to secure your rights as parents?

The process is cumbersome, but not impossible, and we can guide you through it.

Under New York law, all adoptive parents have to be certified by the court if they want to adopt a child in the United States. Click here to read more.

Innocent Play or Child Pornography?

                                    “… I know it when I see it.” – Justice Potter Stewart

In the December 20, 2013 Law Journal, there is a very interesting case called Matter of CW v. CYR. This case comes from Kings County Family Court (Brooklyn Family Court) and it started on November 20, 2013 when the Administration for Children Services (ACS) filed an emergency petition against parents to remove their 4 children. What happened?

The father lost his Blackberry in April of 2013. The person who picked up the Blackberry found on it pictures of naked children and turned the phone over to the police. The police issued a warrant to search the house and to examine all the computers because allegations were made that the pictures were showing children in sexually explicit poses.

The District Attorney’s office got involved and then involved the ACS, which removed the children. Fortunately, the children were not removed into foster care because there were family members that were willing to take them, but they were removed from the parents.

The parents were upset and did not cooperate too well with the ACS, which made the ACS even more angry, so as a result, there was a full fledged lawsuit in Family court which ended up in a hearing. The issue? The ACS alleged that the parents had sexually explicit photos of their children. In addition, the parents refused to bring the kids to their social worker appointments or forensics and would not speak to the case worker.

Click here to read more.

Determining Where to File for Divorce in the 21st Century World of Mobile Families

                   
                   “Not all those who wander are lost.” – J.R.R. Tolkien, The Fellowship of the Ring

In the world of mobile families, complex international marriages and overburdened courts, would a New York court accept a divorce case, filed by the husband, an Irish resident, British passport holder and citizen of the European Union against the wife, a U.S. citizen who prefers to reside in Ireland? Apparently, the answer is yes.

In a recent Putnam County Supreme court case, Mr. S. filed for divorce in New York and his wife opposed it, claiming that New York State had no jurisdiction to end the parties’ marriage. Under New York State law, when you commence an action for divorce, the first thing that needs to happen is that the court needs to verify that there is jurisdiction.

Click here to read more.

On Undiagnosed Mental Illness and Mediation

“The best way out is always through.”

– Robert Frost

What is mental illness? What is mental instability? Scientists and mental health professionals have grappled with questions concerning the human mind for centuries. From artfully crafted screening questions to wires transferring electrodes to images, we live in a society that tries to unravel why some people act in unfathomable ways. Sometimes we feel we are closer to an answer. But the inevitable anomaly continually sets us back.

In the setting of divorce, we are concerned with identifying an environment that offers an optimal space for a child to flourish. In a litigated process, our system attempts to investigate these environments through forensic evaluations, court ordered investigations into home environments of the parents, supervised visits and other compartmentalized vehicles. One person visits the home of a parent who assumes a requisite, cavalier smile for an afternoon. Another person explores the home of a parent who is absent, balancing two jobs and in no position to tidy. A third person interviews a young child who enthusiastically chatters about the parent who provides more sweets and fewer boundaries. Each of these individuals files a report with the court. Attorneys, equipped only with brief anecdotes told in confidence by their clients and often skewed summaries of opposing party’s positions, advocate for their clients to the best of their abilities. A judge evaluates to the best of his or her ability based on what is presented in court. No one thinks about the gaps that will never be filled.

There is little opportunity in a courtroom to observe the engagement between divorcing spouses without the filter of their attorneys, coaching them on what words to use and how to temporarily temper their habits by polishing the virtual or real image they present to the world at large. There is little opportunity to emote, to communicate freely, to problem-solve constructively and collectively. And there is certainly little opportunity to flag whether an individual is concerned with love of a child, or an unsavory obsession with simply winning a game.

It is true that mediation may not be a feasible process for every couple. It is true that a minimal amount of willingness on both sides is imperative to participating effectively. However, mediation is still one of the few forms of dispute resolution in which certain critical human elements can be brought to light. Click here to read more

Do Court Orders Protect from Violence or Can They Potentially Increase its Threat?

“Litigation: A machine which you go into as a pig and come out of as a sausage.”
– Ambrose Bierce

Do any of you see disturbing patterns in recent news? Patterns where people who, as it turns out later, have mental health issues, end up snapping and committing murder? These patterns are not limited to our country and unfortunately, they are becoming more and more frequent, especially in the area of family disputes.

In September 2013, a man kidnapped his small children in Tel Aviv, Israel, and ended up throwing them off an 11-story building, then taking his own life. That man, whose name was Eli Gur was estranged from his wife. After being found “unfit for duty” and released from the police force, Gur lost his mother and was living with his brother in her house. There was a restraining order in place and he could only visit his children under a social worker’s supervision. However, the court order did not prevent him from storming into his wife’s home, choking her, snatching the children and taking off. Click here to read more.

Mediating Secondary Education in NYC

By Lara Traum (mediator with the Law Firm and Mediation Practice of Alla Roytberg, P.C.)

“He who opens a school door, closes a prison.”
― Victor Hugo

In a city of unique academic options and restrictions, parental decision-making is perhaps the single most significant force that determines a child’s educational path. Unlike the idyllic American dream that depicts a wholesome Brady bunch in a balanced local high school, successfully stumbling through a system of well meaning and artful instructors, the school system in New York City is varied, inconsistent, competitive, and without guarantee.

Just as some kindergarteners spend their afternoons with tutors, preparing for admission into elite elementary school programs, many of New York’s seventh graders spend their summers indoors, drilling for the gamble of the specialized high school’s admissions test. As competition becomes more fierce and programs become more rigorous, more and more parents are finding it necessary to adjust their children’s educational plan. Click here to read more.

Is Anyone Thinking About the Children?

And the king said: ‘Divide the living child in two, and give half to the one, and half to the other.’ Then spoke the woman whose living child was unto the king, for her heart yearned upon her son, and she said: ‘Oh, my lord, give her the living child, and in no way slay it.’ – The Bible, Kings 3:16-28 – The Story of King Solomon and “Splitting the baby”.

On February 11th, a grandfather shot and killed his grandchildren’s mother in a Delaware Family Court. Christine Belford, a contact lens technician, and David Matusiewicz, an optometrist, were married from 2001 to 2006. As reported by delawareonline.com on February 12th, they had 3 daughters, who were the subject of a custody battle during their divorce. One of the girls is autistic. #childrensrights.

Click here to read more.

Thoughts on the Hague Convention

In my last blog, we talked about the U.S. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and its application on an international level. The Hague Act can further complicate an already complex situation. To read the actual text of the Hague Convention of October 25, 1980 on the Civil Aspects of International Child Abduction, click here.

In the 21st century, family members often reside in different parts of the world. What happens if the parties live in one country and one of the parents just leaves and disappears with the children? Or, the parties’ relationship is amicable and they are simply trying to understand which country’s laws should govern their separation and divorce?  Click here to read more. 

 

 

The Quagmire of Divorce, International Style

Different states in the United States view custody, jurisdiction and enforcement pieces of a divorce differently. Because of that, there is what is called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). UCCJEA was drafted in 1997 and was adopted by all States except for Massachusetts and Puerto Rico. Basically, the UCCJEA gives exclusive and continuing jurisdiction for custody cases to the child’s home state.

The child’s home state is generally defined as the state where the child has lived with a parent for six consecutive months before the case was started in court. To read more, please click here. 

Parenting Within the Radius

For every thing you have missed, you have gained something else; and for every thing you gain, you lose something” – Ralph Waldo Emerson

Parental relocation post-separation or post-divorce often creates unprecedented challenges for the parent who wants to move, the parent who stays behind, and especially for the children. Most frequently, a dispute arises when the parent with whom the children primarily reside, moves from the residence where they are currently located and far away from “the frequently visiting and involved” parent. For example, if the children’s primary residence is with the mother and the father sees them both during the week and on weekends, what happens if the mother has to move?  To read more, please click here.

Mediating the Multi-Cultural Fugue of Divorce Mediation

Although many of us live in the most multi-cultural State and City in the world, for New York mediators a dispute between participants of unfamiliar cultural, religious and ethnic backgrounds brings unprecedented challenges. In her article on Neuro-Literacy, Pauline Tessler rightly points out that “our clients experience divorce as an extended human transition of operatic dimensions, with emotionally exhausting peaks and valleys involving betrayals, bad faith, and narcissistic wounds that call into question identity, core values, and even the will to survive.”¹ Add to this a mix of centuries’ old beliefs, traditions and rituals, sprinkle it with a committee of advisors, comprised of family, clergy, and community elders, and you get a cacophony of contrasting voices which exacerbate an already looming emotional headache of a human being facing a divorce.  To read more, please click here

All families are "Broken" and then "Blended"

"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

"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.

ON CHILD SUPPORT AND CHILDREN IN NEW YORK

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.