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.

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.

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.

Does Honoring Individuality Help Resolve a Dispute?

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

“There are men who can think no deeper than a fact” – Albert Einstein.

We live in a world of absolute truths. History, math and science tell us that facts exist, that questions have answers, and that formulas can be applied to resolve many of life’s mysteries. We make firm projections about the future just as we reflect with conviction on the past. We rarely pause to wonder whether the way we experience a situation is indeed that objective – whether the person sitting next to us who has lived on the same block and eaten at the same diner and talked to the same street vendor for the past ten years has experienced the picture entirely differently.

Vantage point is the depth beyond fact that individuates personhood. But what happens when one identity has been enmeshed with another for years? Click here to read more.

Housing Issues For Families – Part 2

Condominiums

A man builds a fine house; and now he has a master, and a task for life; he is to furnish, watch, show it, and keep it in repair, the rest of his days.”

Ralph Waldo Emerson (1803 – 1882)

A condominium is another type of apartment; however, owning a condominium is very different from “owning” a co-op. In a condominium, owners actually own their space as real estate, as opposed to owning shares in the co-op building. They have a deed, the same way you have a deed on a house. When a person owns a condominium apartment, he/she owns whatever is inside the walls/unit and also a proportionate share of the common elements of the building. For example, if there are 4 apartments in the building, the owner would have a deed for their apartment and a 25% interest in the common elements in the building as well.

Just like with the co-op, the building has an offering plan. It has a budget and, depending on its size, they may have a management company and it can borrow money, if needed. Monthly maintenance payments in condominiums are usually called “common charges” and they relate to the unit owner’s proportionate share of the costs needed to run the building. Click here to read more.

Housing Issues For Families – Part 1

The Co-op

April 10, 2013

“A cooperative apartment is an apartment in a building owned and managed by a corporation in which shares are sold, entitling the shareholders to occupy individual units in the building.” – A Definition from Merriam-Webster Dictionary

Very often, one of the most critical disputes a family may have revolves around housing. Where will the children reside? Who stays in the marital home? Do they own or rent? If the parties own their home, it may be a condominium, a cooperative apartment (co-op) or a house. How should one structure a delayed sale, exclusive occupancy or a buyout if a family unit is restructured?

While in other states a co-op is not such a common phenomenon, in New York State, and especially in New York City, a co-op presents a frequent form of ownership for many people. Most pre-war buildings in Manhattan are co-ops and so are many in Queens, Brooklyn and other boroughs. When you own a co-op, you don’t actually own real property. There is no deed, like in a house or a condominium. Instead, your form of ownership consists of a stock certificate that represents the number of shares allocated to your unit by the cooperative corporation, i.e. the building. The co-op has a Board of officers and members. These people make a lot of decisions. If you want to sell your co-op, your purchaser will have to complete an application for Board approval. The Board can approve or deny this application if it believes that the buyer is not financially secure, or, for any other reason at all under the “business judgment rule”.  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.

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.

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.

CHOICE OF PROCESS FOR VICTIMS OF DOMESTIC VIOLENCE

"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

"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.