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.

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. 

Which Court Do You Go To With a Family Dispute in New York? Part 2

Part 2: The Limited Resources Divorce

As I explained in my last blog,  a  family where one party is just seeking custody, can go to Family Court.  If a person just seeks child support or spousal support, he or she can go to Family Court. If,  however, a party is asking for a divorce, that party must file an action for divorce in a Supreme Court. If  he or she needs a judge to help divide pensions, assets or liabilities, he or she must file in the Supreme Court as well.

TO READ MORE PLEASE CLICK HERE

New York Becomes a "No Fault" Divorce State

“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"

"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.

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

"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

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?

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.

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.