DIVORCE & FAMILY LAW FAQ's
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HOW LONG DOES A DIVORCE TAKE IN NEW YORK STATE?
It is hard to answer this question with any degree of preciseness. Depending on
the level of complexity, a divorce can take anywhere from a few months to a
few years.
WHAT ARE THE PROCEDURES FOR A DIVORCE FROM THE DAY I WALK
INTO THE DAY I RECEIVE WHAT I AM ENTITLED TO?
The initial consultation will either provide you with a wealth of general
information and a handshake whereby I wish you well or it will result in you
retaining this law firm. If you should retain this firm, you will need to sign a
retainer agreement and provide us with a check, money order, or credit card.
Major credit cards are acceptable.
WHAT IS A RETAINER AGREEMENT?
A retainer is an agreement between the law firm and the client. The retainer
for divorces (unless it is an uncontested divorce) will be based on an hourly
rate. The average retainer involves ten hours of legal service, together with
necessary expenses for filing and service of process.
After signing the Retainer Agreement, there are several ways a divorce
can proceed:
(1) A Separation Agreement;
(2) A Summons with Notice;
(3) A Summons with Verified Complaint;
(4) An Order to Show Cause for Emergency Relief;
(5) Family Court Petitions followed by items 1-4
The Summons with Notice can be generated immediately and served upon your
spouse as early as the same or next day.
I HEARD THERE ARE NO LONGER GROUNDS NEEDED IN NEW YORK AND
THEY MOVED TO A NEW "NO FAULT" SYSTEM?
Yes, that is basically true. The old grounds still exist in the divorce statute,
known as the Domestic Relations Law (DRL), however, an additional "ground"
was added and went into effect on October 12, 2010. This known as the "No
Fault" divorce law. What this additional ground accomplished, was it made all
the previous grounds virtually obsolete, as the Plaintiff no longer has to prove
his/her spouse was at fault. Under this new ground (section DRL 170(7)), a
Plaintiff must swear under oath only that there has been an irretrievable
breakdown of the marriage for a period of at least six months. The intent of the
lawmakers was that it cannot be challenged by a Defendant.
The grounds available for a divorce are as follows:
1. Constructive Abandonment;
2. Abandonment;
3. Cruel and Inhuman Treatment;
4. Adultery;
5. Imprisonment;
6. Living Separate and Apart for more than a year.
7. Irretrievable breakdown of the marriage (DRL 170(7)- New as of 10/12/10)
Some 99% of all divorces used to end up with Constructive Abandonment for
the ground for the eventual divorce. This meant there was no sex in the
marriage for one year prior to the divorce. However, with the passage of DRL
170(7), I would suspect that 99% of all new divorces will be under this ground.
CAN THE OLD GROUND STILL BE USED?
Yes. Often, there are specific reasons another ground would be used in
conjunction with or as opposed to DRL 170(7). Typically, divorces are served
alleging several grounds. The chief reason for using some of the other "fault"
grounds would be to cause embarrassment to the faulting spouse, or if the fault
was "egregious" (i.e. so serious as to warrant a greater financial award).
WHAT IS A SUMMONS WITH NOTICE?
The Summons with Notice is generated and then filed with the County Clerk's
Office. This does not require your signature. The County Clerk accepts it and
receives a check for $210 immediately. Thereafter, there is 120 days to serve a
Summons with Notice. These are often served immediately. Service on a spouse
will be done by a professional process server hired by this firm, and an Affidavit
of Service will be prepared. It will then be filed in the County Clerk's Office.
Your spouse will then have 20 to 30 days to answer. When your spouse
responses, the issue is "joined" or as we could say, the "ball is in play."
WHAT IS A SUMMONS WITH VERIFIED COMPLAINT?
A Summons with Verified Complaint is more elaborate than the Summons
with Notice. It states the allegations set forth in the Verified Complaint. There
are many reasons for an attorney to do a Summons with Notice and/or a
Summons with Verified Complaint. For example, if we start with a Summons
with Notice, we later have to prepare a Verified Complaint. If you believe your
spouse will be represented by an attorney then we will most likely start with a
Summons with Notice and later supplement with a Complaint. This way, we can
negotiate the grounds of the Complaint and possibly do it in a more cost
effective manner. If your spouse cannot be found or be represented by an
attorney, we would want to start immediately with the Summons and Verified
Complaint so that only one service of process is needed by a professional
process server. If your spouse has retained an attorney, we do not have to use a
process server to serve the Verified Complaint.
WHAT IS AN ORDER TO SHOW CAUSE?
The Order to Show Cause is a method in which we receive "ex-parte" relief
immediately. An Order to Show Cause is an emergency application. The order
is a blank order requesting emergency relief. It is granted for such things as:
(1) exclusive use and occupancy of the house; (2) a temporary
restraining order;
(3) immediate custody of the children;
(4) restraining a bank accounts;
(5) temporary restraining order preventing assets from being
transferred;
(6) maintenance and alimony;
(7) payment of bills from your spouse;
(8) payment for child support immediately;
(9) payment of the mortgage and carrying charges;
The Court will read the blank order we provide together with the Summons
with Notice and/or the Summons with Verified Complaint; and an Affidavit
(your statement as to why you need an emergency order); and our Affirmation
showing the legal basis for the order. The Court will then sign the order and
grant the relief asked for or not. If the judge grants the relief, it is done so
without hearing your spouse's side of the story. It will then be incumbent upon
us to immediately serve the Order to Show Cause upon your spouse and have
them hire an attorney and tell the Judge why the relief should or should not be
granted. This is an aggressive way to start a lawsuit. It "front loads" all of the
work and at this point the ball is certainly in play.
WHAT ARE SEPARATION AGREEMENTS?
Separation Agreements can be a prelude to a divorce. In general, the law
provides that if you prepare a Separation Agreement and file it with the County
Clerk's office one year later it can be turned into a divorce via a conversion.
This is not often recommended. Quite simply, I will charge you twice. What
happens is a man and a woman show up and enter into an agreement and they
legally separate. From that moment on, they are separated by this agreement.
In one year, a divorce must be started and there will be multiple documents
filed at the Court and a divorce Judgment will be granted on the basis and
grounds set forth in the Separation Agreement.
This scenario rarely occurs. The reason it rarely occurs is that as soon as the
Separation Agreement is signed there are many promises one party has made
the other. Additionally, each party can receive income or assets, depending on
how the agreement is worded. This will result in one of the spouses not wanting
to share in his or her income or assets. It is my experience that in most cases,
one of the people will be unhappy with the Agreement within that year. This
causes challenges to the Separation Agreement. Quite simply, after the
Agreement is signed one of the spouses is going to be living better than the
other. The spouse who got the "short end of the stick" will, most likely,
challenge the Separation Agreement. He or she will seek more relief or money
at the time the divorce is contemplated. If you are thinking of a Separation
Agreement be aware of the following: Why would you want to separate one year
before your divorce? Why not just get a divorce now?
One of the best answers to this question is health insurance. If you are
contemplating a Separation Agreement, we will gladly provide you with an
airtight Separation Agreement. All of our Separation Agreements have been
upheld by the courts, and none of have been effectively challenged in court.
Additionally, our Post-Matrimonial as well as our Pre-Nuptial Agreements have
never been successfully challenged.
However, they have been challenged. Anyone can challenge an Agreement.
This will cost money to defend the challenge. If the Agreement says whoever
challenges it and loses pays the other sides attorney's fees, that is fine.
However, that happens only after the case has been won. We need to be paid
throughout this transaction. Therefore, if we prepare a Separation Agreement
for you and several months later your spouse decides it is unfair or that they
want more they will certainly challenge the Separation Agreement. We will
need to defend the Separation Agreement and we will win the case. However,
until we win the case we will ask you for our normal hourly rate. After the case
is won, we will most likely receive a Judgment, which forces the other side to
pay your legal fees -- which have already been paid. It will require several
months of you paying fees to enforce an agreement where everybody has
already signed. Quite frankly, spouses do not always live up to the Agreements
they sign.
Unless there is, a final divorce there is always an opportunity to challenge
within the year. In addition, the divorce occurs one year or so after the
Separation Agreement is signed. Based on the fact that only the Agreement
was signed, the parties then have to sign additional documents; lawyers have to
get involved again. For example, if an Agreement was signed for a certain
amount of support or a certain amount of suitable distribution or the value of a
house has increased; a spouse has lost their job; health insurance no longer
becomes available; or one of the children wants to live with the other spouse,
this will create a problem. It is only be a problem if the parties do not live up to
their Agreement. However, I can tell you from personal experience that people
who are separating can agree to something one day and disagree to the very
same thing eleven months later. Be careful with Separation Agreements.
Contact me and I will discuss this matter with you and provide you with a free
consultation.
WHAT ARE PETITIONS IN FAMILY COURT PRIOR TO DIVORCE?
There are three main types of Petitions in Family Court. They are as
follows:
(1) Custody and Visitation;
(2) Support; and
(3) Orders of Protection.
With respect to Custody and Visitation, this is not a wise idea to do it in Family
Court prior to coming to Supreme Court for a divorce. There are many reasons
for that. Quite simply, it is only a good idea to start it in Family Court if the
custody is a simple matter. For example, if you are a stay-at-home mom and
you want to make sure that you have the custodial label, you should do it in
Family Court. If custody is going to be a problem or highly contested then do it
in Supreme Court. Divorces are done in Supreme Court. Family Court is for
people who were never married; use to be married; or are still married but wish
to have the issues of custody and support handled there. In Family Court, it is
possible to get a Law Guardian for free or at panel rates. A Law Guardian is a
lawyer appointed to protect the children. The lawyer is appointed by the judge
and it is the lawyer's job to represent the best interests of the children as well
as the children's wishes. This involves walking a fine line. For example, after 14
years of age, children can often express their own wishes and Court's will
usually bend over backwards to give the child what they want. In any event,
sometimes a child does not want what is best for him or her. This is often the
case when a child seeks to live with the parent who has a "no rules" or "relax
rules" household. The Law Guardian treads a fine line between advocating what
the child wants and what is in the best interest of the child.
When children are over the age of 14, the Law Guardian's job is especially
precocious. Courts will listen to anyone who is mature, especially if they are
over the age of 14. A child over the age of 16 can live with whomever her or she
wants --- so long as it is not harmful to the child's interest.
In Supreme Court, the Law Guardian is often provided with a psychiatrist or
psychologist to assist the Court in connection with their determination of
custody. In Family Court, this is also the case. It is usually not a good idea to
start a custody battle in Family Court if a divorce is going to ensue. It's better
to do it in a divorce and this can be done by Order to Show Cause or by a simple
Summons with Notice and/or Summons with Complaint and later at the
Preliminary Conference a Law Guardian and a forensic will be appointed.
There is a much higher caliber Law Guardian in Supreme Court. In addition,
there is more attention to the parties and the children in Supreme Court then
in Family Court. This has been my experience.
With respect to support, the Family Court can be a way to start a support
proceeding immediately prior to divorce. If you have moved out of the house or
your spouse has moved out of the house and you need support for yourself
and/or your children, the Family Court may be the place to do it prior to the
divorce. Be careful here. I usually obtain a greater amount of support in
Supreme Court then Family Court. However, it will take much less time to get
child support and/or maintenance from Family Court. Indeed, it can be done
immediately. If the Petition is filed and it is served in a timely fashion, on the
first Court appearance the Family Court will ask how much the spouse is
making and make an Order of support granting one spouse support from the
other and/or granting the children support from the other spouse. This is as
good as it gets. It is speedy and subject to reallocation after financial affidavits
are prepared.
In any event, the Supreme Court is a better vehicle to obtain support, but it
takes longer. It can be done by Order to Show Cause but it may take as long as
60 days or more. It will be retroactive to the date filed whether it is in Supreme
Court or in Family Court. In Supreme Court not only can you get support but
you can get maintenance, and most importantly carrying charges for things
such as: all utilities; mortgage; car bills; health insurance; life insurance; and
restraining orders against the transfer of assets.
WHAT ARE RESTRAINING ORDERS?
If there is family violence, Family Court can get you a restraining Order
immediately, ex-parte. Ex-parte means without the other side having anything
to say about it in the first few days. All that is required is for you to come to my
office and we'll discuss this issue with you. We can get an immediate
Temporary Restraining Order whereby one spouse is actually thrown out of his
or her house.
On a best-case scenario, Temporary Restraining Orders have a "Stay-Away
Provision." This provision states that a spouse must stay away from the hildren
and/or the other spouse. The lesser restraining order will say that it is a "no
molest harass or annoy" restraining order. These restraining orders simply tell
one spouse that if they "molest, annoy, threaten, or harm" the other spouse
They'll be arrested. They are not as powerful. If your spouse is striking you,
they will be arrested. This would happen with or without a restraining order.
FAMILY COURT DO'S AND DON'TS
In general, do not go to Family Court alone under any circumstances. Contact
me immediately if you have any intention of entering the Court complex. No
one should be exposed to the Court system without a proper representation.
You'll get more respect if you show up with a lawyer –– no matter what you do.
We are widely known and recognized. Whoever your Judge may be and
whatever type of case you have, I've done it and am familiar with him or her.
Showing up in Court with me as your lawyer indicates to the Court that you are
responsible and care about your case.
WHAT HAPPENS AFTER A DIVORCE ACTION IS STARTED?
If we prepare your divorce action and filed it,we have a certain amount of time
to serve it. If by Order to Show Cause, the Judge tells us how long we have to
serve it. It must be served by a Process Server within a few days if it is an
Order to Show Cause. If the action is started by a Summons with Notice or a
Summons with Verified Complaint, we have 120 days to serve your spouse. If
we can't find your spouse, we will make an application to serve by publication.
Nevertheless, our Process Servers and investigators almost always can locate
your spouse.
ONCE AN ACTION IS BEGUN, WHAT HAPPENS NEXT?
If you are served with an Action for Divorce, Order to Show Cause, or any
Family Court papers, you should contact my office immediately. Do not even
think about it --- hire an attorney immediately. If we have started this lawsuit
on your behalf, your spouse will be obligated to hire a lawyer. If they do not,
things will actually be more difficult for us. We will spend most of our time
explaining to them about their right to hire a lawyer and that we represent you
and will be enforcing your rights, to the fullest, without any regard for them.
There are exceptions to this rule, one is mediation, and other is non-spouses. It
is not necessary to serve a spouse in Family Court and service can be made on
a co-parent or another individual.
WHAT IS A MEDIATION?
We often perform mediation services. If we are going to mediate a divorce, it
should be done where we represent one of the spouses. In the event the
mediation is unsuccessful, we will continue to represent one of the two parties
as their lawyer in a divorce. Mediation, in our experience, is often unsuccessful.
The reason mediation is often unsuccessful is due to the fact that if the spouses
are contemplating divorce or separation they usually antagonistic to each other
and cannot agree. There are a litany of issues that must be agreed upon in
connection with mediation. If we are mediating a divorce, the spouses must
agree to every issue without exception. If the spouses cannot agree to one
single issue, the result is a complete breakdown of the negotiations with one
spouse leaving the mediation table and hiring a separate lawyer.
ARE DIVORCES WINNABLE?
Yes they are. If the children are in a safe environment free from emotional
and physical abuse and both parties are able to move on with their lives and
pursue happiness elsewhere, that would be a very successful divorce. It is our
experience that we have seen many satisfied clients a year or two after their
divorce enjoying their lives free from the entanglements of marriage. Many of
our client's feel that they should have divorced earlier. By the time a client
walks through our door they have already moved on in their minds. We rarely
seen a divorce where the parties truly love each other. When there is no longer
love and the relationship is unsafe; unhealthy; or unmanageable --- divorce is a
solution to the problem. It is better to take action if you're unhappy and you
have tried everything. Divorce should be the last option, not the first. We urge
counseling; and urge our clients to remember why they got married in the first
place. Unfortunately, we rarely see clients reconciling. On the other hand, it is
very common for us to see clients doing much better in their new lives and who
seem happier; more well adjusted; and, in many cases, better parents.
WHAT HAPPENS WHEN AN ANSWER IS MADE?
After a party is served they must answer. Some answers are more complicated
than others are. For example, if it is a Summons with Notice, the answer is
simply a Notice of Appearance from an attorney demanding a complaint. If is it
a Summons with Verified Complaint, the answer will be a Verified Answer
together with, most likely a Counter-Claim. If it is an Order to Show Cause,
there must be many allegations refuted and a cross-motion is made. The Order
to Show Cause may be seeking Temporary Restraining Orders and immediate
relief. The way to answer that would be to deny the allegations and set forth, in
the form of a sworn statement or affidavit, the clients side of the story.
With respect to the Family Court Petitions, they should be answered. Some
Family Court Petitions do not have to be Answered until the day of Court and
can be answered in person. Never appear in Court without a lawyer.
WHAT HAPPENS AFTER THE ANSWER IS MADE?
In the usual scenario is connection with a Supreme Court divorce an answer is
interposed and the "issue is joined." At that point, there may be no judge
assigned to the matter. The judge is only assigned in the case of an Order to
Show Cause. If it is a Family Court matter, a Hearing Examiner, judge, or
Special Referee has already been assigned. However, with a regular divorce no
judge has been assigned. At this point, if the action has been started an answer
has been made a Request for Judicial Intervention should be prepared and
served. This is a form under New York Codes Rules that must be filed together
with a $95.00 check made payable to the County Clerk. The form will, most
likely Request a Preliminary Conference. This should be done within 45 days
of the answer in a divorce. A Preliminary Conference is a good way to get the
case onto the Court's calendar so that a time frame can be set for the eventual
resolution of the matter.
WHAT HAPPENS AT A PRELIMINARY CONFERENCE?
This is often a very uncomfortable situation for clients. Preliminary
Conferences are usually only for divorce cases, and they occur after the lawsuit
has started and the issue has been joined. During the Preliminary Conference,
the clients rarely see the judge. The attorneys show up at various intervals,
discuss the case, and fill out what is called a Preliminary Conference Order.
The Preliminary Conference Order is a Stipulation/Order which controls the
time frame for the entire case. For example, the average Preliminary
Conference Order lists what issues have or have not been resolved. The issues
set forth on the average Preliminary Conference Order include: fault; custody;
support; equitable distribution; forensic; Law Guardian; grounds. These issues
are usually marked unresolved and with respect to forensics and Law
Guardians, they are often reserved.
The most important part of the Preliminary Conference is the discovery and
the deadlines for various exchanges of financial information. Prior to the
Preliminary Conference, a Statement of Net Worth must be prepared, signed,
and filed by each party. The Statement of Net Worth is a burdensome financial
statement that often runs 20 pages and must be prepared by the clients. Clients
prepare the Statement of Net Worth and submit it to their attorneys along with
two years of tax returns; any W2's; and recent pay stubs. I usually prepare a
final professional-looking copy prior to the Preliminary Conference.
A statement of Net Worth is needed in all contested divorce matters. Once a
Statement of Net Worth is exchanged, the Preliminary Conference will
schedule other things, such as: Interrogatories; Notice for Discovery and
Inspection; Notice for EBT's, Appraisals and Experts. At the end for discovery
Note of Issue date. With respect to Interrogatories and Notice for Discovery
and Inspection, these are very large and burdensome discovery demands.
Interrogatories run over 50 pages in many cases and ask every conceivable
question. The party who answers the Interrogatories must prepare a written
response and sign it. It is our practice to serve Interrogatories and to respond
to Interrogatories in a timely fashion. A Notice for Discovery and Inspection
seeks an incredible amount of financial information from the other side. It is
our practice to serve and respond to such demands. For example, when we
represent a spouse we will serve the other spouse a demand for five years worth
of bank statements; loans; proof of income; investments; retirement accounts;
etc. This insures that we have a full and complete financial picture of the
marriage so we can effectively represent our client. It is our practice to assist
our clients in responding to these requests when they are made from the
spouses' attorney.
With respect to depositions, this is a question and answer period that occurs
before a Court Reporter in an informal setting. It at that time that we ask our
clients to pose conceivable question concerning finances that we could not
determine based on the answers to the Interrogatories or the Notice for
Discovery and Inspection. It is also a time for us to object to any improper
questions posed by the other side. Recall, that this is an informal setting,
taking place either at our office's conference room or in a conference room in
the Courthouse. The judge is not present. It tends to be a relaxed setting. With
respect to a Compliance Conference and a Note of Issue, those are dates that
are put onto the Preliminary Conference Stipulations/Order by the court. The
court puts those dates on the Conference Order to control the final date at
which all discovery must be completed and a final Conference whereby the
parties will be before the court and will Stipulate or settle the divorce or mark
it ready for trial. A Note of Issue marks the divorce as ready for trial.
WHEN IS A LAW GUARDIAN OR A FORENSIC APPOINTED?
There are Law Guardians, experts, forensics, and appraisers. A Law Guardian is
a lawyer appointed by the court to represent the children. Law Guardians
Suffolk County as well as Nassau County are usually excellent resources for
the courts and the parties in the divorce. A Law Guardian is also well-paid for
their services. The respective parties and their attorneys argue as to the pro-
rata share of the expenses to be paid by each party that make up the Law
Guardian's fee.
The Law Guardian will often make a recommendation to the judge as to who is
the better parent in a custody battle.
WHAT ARE EXPERTS AND FORENSICS?
Experts and forensics are very useful in connection with the evaluation of
businesses and/or custody matters. With respect to businesses, we work with
forensic accountants and we are known for our ability to assist the Forensic
Account in evaluating our client's assets and/or the assets of our clients spouse.
There are certain assets and businesses that require the services of a Forensic
Account in order to determine what portion a spouse may be entitled to in
connection with a divorce. For example, a couple marries while one of them is
in medical school, and later becomes a physician in a medical group. That case
would require a Forensic Accountant. The Forensic Accountant would evaluate
the spouses enhanced earning or earning capacity as well as the value of the
medical practice and the spouses share in that medical practice as it relates to
the divorce. The spouse that did not go to medical school or become a physician
would be entitled to a part of the physician spouse's portion of his/her medical
practice. This occurs with many professions including lawyers and other
businesses. We have helped spouses with businesses retain the majority
interest in their businesses when their spouse has been less than an equal
partner; has been less than supportive; and is not truly entitled to 50% or the
customary percentage. On the other hand, we have represented spouses that
were more than supportive; self-sacrificing and exemplary in their selflessness
and were entitled to much less than the average percentage formula in
connection with their spouses business or practice.
Forensic Psychologists and Psychiatrists are a very important resource for the
courts and for attorneys and parties in connection with custody battles. A good
forensic could assist the court in determining parental fitness and the dynamics
of the parent/child relationship. Forensics are often used in custody matters.
Forensics as a whole should not determine the custody case. We have been
quite successful in using forensics as a tool to prove our clients fitness as a
parent and to obtain custody for our client. However, we have also been
successful in obtaining custody for clients when forensics have recommended to
the Judge that our client should not have custody.
WHAT ARE APPRAISERS?
Appraisers set a value on businesses, houses, real estates, automobiles, boats,
yachts, artwork, jewelry, etc. The most common asset in Long Island is the
marital home. Homes purchased ten years ago have dramatically risen in value.
The average divorce involves one of the parties staying in the marital home
while the other party is bought out or vacates the home until the youngest child
is 18 or 21. There are also cases where the parties agree to sell the home and
split the proceeds. In any event, a good real estate appraiser can find us the
numbers that we need to settle a case or win a significant percentage of the
equity at trial. Additionally, there are many issues that appraisers can help. For
example, separate property claims; improvements and other value. For nstance,
if a spouse uses a personal injury award or an inheritance (traditionally
separate property) to improve a marital residence by adding an extension, an
appraiser can find us several values such as: the value for the residence today;
the value of the residence prior to the addition; and the difference including
how much of the appreciation was due to the inclusion of the extension.
Therefore, if the house is valued at $300,000 and our client put $30,000 into the
house in ten years ago to improve the value of the house, a good appraiser
could say, hypothetically, that the $30,000 put into the house by our client ten
years ago resulted in $90,000 worth of appreciation to date. Our client would
then be entitled to the $90,000 from the sale of the home and then 50% of the
other value of the home. This is only an example. Appraisers can make
complex additions to real estate; separate property claims; down payment
issues; and capital improvements into hard numbers, which can be calculated
and divided in a court.
It is hard to answer this question with any degree of preciseness. Depending on
the level of complexity, a divorce can take anywhere from a few months to a
few years.
WHAT ARE THE PROCEDURES FOR A DIVORCE FROM THE DAY I WALK
INTO THE DAY I RECEIVE WHAT I AM ENTITLED TO?
The initial consultation will either provide you with a wealth of general
information and a handshake whereby I wish you well or it will result in you
retaining this law firm. If you should retain this firm, you will need to sign a
retainer agreement and provide us with a check, money order, or credit card.
Major credit cards are acceptable.
WHAT IS A RETAINER AGREEMENT?
A retainer is an agreement between the law firm and the client. The retainer
for divorces (unless it is an uncontested divorce) will be based on an hourly
rate. The average retainer involves ten hours of legal service, together with
necessary expenses for filing and service of process.
After signing the Retainer Agreement, there are several ways a divorce
can proceed:
(1) A Separation Agreement;
(2) A Summons with Notice;
(3) A Summons with Verified Complaint;
(4) An Order to Show Cause for Emergency Relief;
(5) Family Court Petitions followed by items 1-4
The Summons with Notice can be generated immediately and served upon your
spouse as early as the same or next day.
I HEARD THERE ARE NO LONGER GROUNDS NEEDED IN NEW YORK AND
THEY MOVED TO A NEW "NO FAULT" SYSTEM?
Yes, that is basically true. The old grounds still exist in the divorce statute,
known as the Domestic Relations Law (DRL), however, an additional "ground"
was added and went into effect on October 12, 2010. This known as the "No
Fault" divorce law. What this additional ground accomplished, was it made all
the previous grounds virtually obsolete, as the Plaintiff no longer has to prove
his/her spouse was at fault. Under this new ground (section DRL 170(7)), a
Plaintiff must swear under oath only that there has been an irretrievable
breakdown of the marriage for a period of at least six months. The intent of the
lawmakers was that it cannot be challenged by a Defendant.
The grounds available for a divorce are as follows:
1. Constructive Abandonment;
2. Abandonment;
3. Cruel and Inhuman Treatment;
4. Adultery;
5. Imprisonment;
6. Living Separate and Apart for more than a year.
7. Irretrievable breakdown of the marriage (DRL 170(7)- New as of 10/12/10)
Some 99% of all divorces used to end up with Constructive Abandonment for
the ground for the eventual divorce. This meant there was no sex in the
marriage for one year prior to the divorce. However, with the passage of DRL
170(7), I would suspect that 99% of all new divorces will be under this ground.
CAN THE OLD GROUND STILL BE USED?
Yes. Often, there are specific reasons another ground would be used in
conjunction with or as opposed to DRL 170(7). Typically, divorces are served
alleging several grounds. The chief reason for using some of the other "fault"
grounds would be to cause embarrassment to the faulting spouse, or if the fault
was "egregious" (i.e. so serious as to warrant a greater financial award).
WHAT IS A SUMMONS WITH NOTICE?
The Summons with Notice is generated and then filed with the County Clerk's
Office. This does not require your signature. The County Clerk accepts it and
receives a check for $210 immediately. Thereafter, there is 120 days to serve a
Summons with Notice. These are often served immediately. Service on a spouse
will be done by a professional process server hired by this firm, and an Affidavit
of Service will be prepared. It will then be filed in the County Clerk's Office.
Your spouse will then have 20 to 30 days to answer. When your spouse
responses, the issue is "joined" or as we could say, the "ball is in play."
WHAT IS A SUMMONS WITH VERIFIED COMPLAINT?
A Summons with Verified Complaint is more elaborate than the Summons
with Notice. It states the allegations set forth in the Verified Complaint. There
are many reasons for an attorney to do a Summons with Notice and/or a
Summons with Verified Complaint. For example, if we start with a Summons
with Notice, we later have to prepare a Verified Complaint. If you believe your
spouse will be represented by an attorney then we will most likely start with a
Summons with Notice and later supplement with a Complaint. This way, we can
negotiate the grounds of the Complaint and possibly do it in a more cost
effective manner. If your spouse cannot be found or be represented by an
attorney, we would want to start immediately with the Summons and Verified
Complaint so that only one service of process is needed by a professional
process server. If your spouse has retained an attorney, we do not have to use a
process server to serve the Verified Complaint.
WHAT IS AN ORDER TO SHOW CAUSE?
The Order to Show Cause is a method in which we receive "ex-parte" relief
immediately. An Order to Show Cause is an emergency application. The order
is a blank order requesting emergency relief. It is granted for such things as:
(1) exclusive use and occupancy of the house; (2) a temporary
restraining order;
(3) immediate custody of the children;
(4) restraining a bank accounts;
(5) temporary restraining order preventing assets from being
transferred;
(6) maintenance and alimony;
(7) payment of bills from your spouse;
(8) payment for child support immediately;
(9) payment of the mortgage and carrying charges;
The Court will read the blank order we provide together with the Summons
with Notice and/or the Summons with Verified Complaint; and an Affidavit
(your statement as to why you need an emergency order); and our Affirmation
showing the legal basis for the order. The Court will then sign the order and
grant the relief asked for or not. If the judge grants the relief, it is done so
without hearing your spouse's side of the story. It will then be incumbent upon
us to immediately serve the Order to Show Cause upon your spouse and have
them hire an attorney and tell the Judge why the relief should or should not be
granted. This is an aggressive way to start a lawsuit. It "front loads" all of the
work and at this point the ball is certainly in play.
WHAT ARE SEPARATION AGREEMENTS?
Separation Agreements can be a prelude to a divorce. In general, the law
provides that if you prepare a Separation Agreement and file it with the County
Clerk's office one year later it can be turned into a divorce via a conversion.
This is not often recommended. Quite simply, I will charge you twice. What
happens is a man and a woman show up and enter into an agreement and they
legally separate. From that moment on, they are separated by this agreement.
In one year, a divorce must be started and there will be multiple documents
filed at the Court and a divorce Judgment will be granted on the basis and
grounds set forth in the Separation Agreement.
This scenario rarely occurs. The reason it rarely occurs is that as soon as the
Separation Agreement is signed there are many promises one party has made
the other. Additionally, each party can receive income or assets, depending on
how the agreement is worded. This will result in one of the spouses not wanting
to share in his or her income or assets. It is my experience that in most cases,
one of the people will be unhappy with the Agreement within that year. This
causes challenges to the Separation Agreement. Quite simply, after the
Agreement is signed one of the spouses is going to be living better than the
other. The spouse who got the "short end of the stick" will, most likely,
challenge the Separation Agreement. He or she will seek more relief or money
at the time the divorce is contemplated. If you are thinking of a Separation
Agreement be aware of the following: Why would you want to separate one year
before your divorce? Why not just get a divorce now?
One of the best answers to this question is health insurance. If you are
contemplating a Separation Agreement, we will gladly provide you with an
airtight Separation Agreement. All of our Separation Agreements have been
upheld by the courts, and none of have been effectively challenged in court.
Additionally, our Post-Matrimonial as well as our Pre-Nuptial Agreements have
never been successfully challenged.
However, they have been challenged. Anyone can challenge an Agreement.
This will cost money to defend the challenge. If the Agreement says whoever
challenges it and loses pays the other sides attorney's fees, that is fine.
However, that happens only after the case has been won. We need to be paid
throughout this transaction. Therefore, if we prepare a Separation Agreement
for you and several months later your spouse decides it is unfair or that they
want more they will certainly challenge the Separation Agreement. We will
need to defend the Separation Agreement and we will win the case. However,
until we win the case we will ask you for our normal hourly rate. After the case
is won, we will most likely receive a Judgment, which forces the other side to
pay your legal fees -- which have already been paid. It will require several
months of you paying fees to enforce an agreement where everybody has
already signed. Quite frankly, spouses do not always live up to the Agreements
they sign.
Unless there is, a final divorce there is always an opportunity to challenge
within the year. In addition, the divorce occurs one year or so after the
Separation Agreement is signed. Based on the fact that only the Agreement
was signed, the parties then have to sign additional documents; lawyers have to
get involved again. For example, if an Agreement was signed for a certain
amount of support or a certain amount of suitable distribution or the value of a
house has increased; a spouse has lost their job; health insurance no longer
becomes available; or one of the children wants to live with the other spouse,
this will create a problem. It is only be a problem if the parties do not live up to
their Agreement. However, I can tell you from personal experience that people
who are separating can agree to something one day and disagree to the very
same thing eleven months later. Be careful with Separation Agreements.
Contact me and I will discuss this matter with you and provide you with a free
consultation.
WHAT ARE PETITIONS IN FAMILY COURT PRIOR TO DIVORCE?
There are three main types of Petitions in Family Court. They are as
follows:
(1) Custody and Visitation;
(2) Support; and
(3) Orders of Protection.
With respect to Custody and Visitation, this is not a wise idea to do it in Family
Court prior to coming to Supreme Court for a divorce. There are many reasons
for that. Quite simply, it is only a good idea to start it in Family Court if the
custody is a simple matter. For example, if you are a stay-at-home mom and
you want to make sure that you have the custodial label, you should do it in
Family Court. If custody is going to be a problem or highly contested then do it
in Supreme Court. Divorces are done in Supreme Court. Family Court is for
people who were never married; use to be married; or are still married but wish
to have the issues of custody and support handled there. In Family Court, it is
possible to get a Law Guardian for free or at panel rates. A Law Guardian is a
lawyer appointed to protect the children. The lawyer is appointed by the judge
and it is the lawyer's job to represent the best interests of the children as well
as the children's wishes. This involves walking a fine line. For example, after 14
years of age, children can often express their own wishes and Court's will
usually bend over backwards to give the child what they want. In any event,
sometimes a child does not want what is best for him or her. This is often the
case when a child seeks to live with the parent who has a "no rules" or "relax
rules" household. The Law Guardian treads a fine line between advocating what
the child wants and what is in the best interest of the child.
When children are over the age of 14, the Law Guardian's job is especially
precocious. Courts will listen to anyone who is mature, especially if they are
over the age of 14. A child over the age of 16 can live with whomever her or she
wants --- so long as it is not harmful to the child's interest.
In Supreme Court, the Law Guardian is often provided with a psychiatrist or
psychologist to assist the Court in connection with their determination of
custody. In Family Court, this is also the case. It is usually not a good idea to
start a custody battle in Family Court if a divorce is going to ensue. It's better
to do it in a divorce and this can be done by Order to Show Cause or by a simple
Summons with Notice and/or Summons with Complaint and later at the
Preliminary Conference a Law Guardian and a forensic will be appointed.
There is a much higher caliber Law Guardian in Supreme Court. In addition,
there is more attention to the parties and the children in Supreme Court then
in Family Court. This has been my experience.
With respect to support, the Family Court can be a way to start a support
proceeding immediately prior to divorce. If you have moved out of the house or
your spouse has moved out of the house and you need support for yourself
and/or your children, the Family Court may be the place to do it prior to the
divorce. Be careful here. I usually obtain a greater amount of support in
Supreme Court then Family Court. However, it will take much less time to get
child support and/or maintenance from Family Court. Indeed, it can be done
immediately. If the Petition is filed and it is served in a timely fashion, on the
first Court appearance the Family Court will ask how much the spouse is
making and make an Order of support granting one spouse support from the
other and/or granting the children support from the other spouse. This is as
good as it gets. It is speedy and subject to reallocation after financial affidavits
are prepared.
In any event, the Supreme Court is a better vehicle to obtain support, but it
takes longer. It can be done by Order to Show Cause but it may take as long as
60 days or more. It will be retroactive to the date filed whether it is in Supreme
Court or in Family Court. In Supreme Court not only can you get support but
you can get maintenance, and most importantly carrying charges for things
such as: all utilities; mortgage; car bills; health insurance; life insurance; and
restraining orders against the transfer of assets.
WHAT ARE RESTRAINING ORDERS?
If there is family violence, Family Court can get you a restraining Order
immediately, ex-parte. Ex-parte means without the other side having anything
to say about it in the first few days. All that is required is for you to come to my
office and we'll discuss this issue with you. We can get an immediate
Temporary Restraining Order whereby one spouse is actually thrown out of his
or her house.
On a best-case scenario, Temporary Restraining Orders have a "Stay-Away
Provision." This provision states that a spouse must stay away from the hildren
and/or the other spouse. The lesser restraining order will say that it is a "no
molest harass or annoy" restraining order. These restraining orders simply tell
one spouse that if they "molest, annoy, threaten, or harm" the other spouse
They'll be arrested. They are not as powerful. If your spouse is striking you,
they will be arrested. This would happen with or without a restraining order.
FAMILY COURT DO'S AND DON'TS
In general, do not go to Family Court alone under any circumstances. Contact
me immediately if you have any intention of entering the Court complex. No
one should be exposed to the Court system without a proper representation.
You'll get more respect if you show up with a lawyer –– no matter what you do.
We are widely known and recognized. Whoever your Judge may be and
whatever type of case you have, I've done it and am familiar with him or her.
Showing up in Court with me as your lawyer indicates to the Court that you are
responsible and care about your case.
WHAT HAPPENS AFTER A DIVORCE ACTION IS STARTED?
If we prepare your divorce action and filed it,we have a certain amount of time
to serve it. If by Order to Show Cause, the Judge tells us how long we have to
serve it. It must be served by a Process Server within a few days if it is an
Order to Show Cause. If the action is started by a Summons with Notice or a
Summons with Verified Complaint, we have 120 days to serve your spouse. If
we can't find your spouse, we will make an application to serve by publication.
Nevertheless, our Process Servers and investigators almost always can locate
your spouse.
ONCE AN ACTION IS BEGUN, WHAT HAPPENS NEXT?
If you are served with an Action for Divorce, Order to Show Cause, or any
Family Court papers, you should contact my office immediately. Do not even
think about it --- hire an attorney immediately. If we have started this lawsuit
on your behalf, your spouse will be obligated to hire a lawyer. If they do not,
things will actually be more difficult for us. We will spend most of our time
explaining to them about their right to hire a lawyer and that we represent you
and will be enforcing your rights, to the fullest, without any regard for them.
There are exceptions to this rule, one is mediation, and other is non-spouses. It
is not necessary to serve a spouse in Family Court and service can be made on
a co-parent or another individual.
WHAT IS A MEDIATION?
We often perform mediation services. If we are going to mediate a divorce, it
should be done where we represent one of the spouses. In the event the
mediation is unsuccessful, we will continue to represent one of the two parties
as their lawyer in a divorce. Mediation, in our experience, is often unsuccessful.
The reason mediation is often unsuccessful is due to the fact that if the spouses
are contemplating divorce or separation they usually antagonistic to each other
and cannot agree. There are a litany of issues that must be agreed upon in
connection with mediation. If we are mediating a divorce, the spouses must
agree to every issue without exception. If the spouses cannot agree to one
single issue, the result is a complete breakdown of the negotiations with one
spouse leaving the mediation table and hiring a separate lawyer.
ARE DIVORCES WINNABLE?
Yes they are. If the children are in a safe environment free from emotional
and physical abuse and both parties are able to move on with their lives and
pursue happiness elsewhere, that would be a very successful divorce. It is our
experience that we have seen many satisfied clients a year or two after their
divorce enjoying their lives free from the entanglements of marriage. Many of
our client's feel that they should have divorced earlier. By the time a client
walks through our door they have already moved on in their minds. We rarely
seen a divorce where the parties truly love each other. When there is no longer
love and the relationship is unsafe; unhealthy; or unmanageable --- divorce is a
solution to the problem. It is better to take action if you're unhappy and you
have tried everything. Divorce should be the last option, not the first. We urge
counseling; and urge our clients to remember why they got married in the first
place. Unfortunately, we rarely see clients reconciling. On the other hand, it is
very common for us to see clients doing much better in their new lives and who
seem happier; more well adjusted; and, in many cases, better parents.
WHAT HAPPENS WHEN AN ANSWER IS MADE?
After a party is served they must answer. Some answers are more complicated
than others are. For example, if it is a Summons with Notice, the answer is
simply a Notice of Appearance from an attorney demanding a complaint. If is it
a Summons with Verified Complaint, the answer will be a Verified Answer
together with, most likely a Counter-Claim. If it is an Order to Show Cause,
there must be many allegations refuted and a cross-motion is made. The Order
to Show Cause may be seeking Temporary Restraining Orders and immediate
relief. The way to answer that would be to deny the allegations and set forth, in
the form of a sworn statement or affidavit, the clients side of the story.
With respect to the Family Court Petitions, they should be answered. Some
Family Court Petitions do not have to be Answered until the day of Court and
can be answered in person. Never appear in Court without a lawyer.
WHAT HAPPENS AFTER THE ANSWER IS MADE?
In the usual scenario is connection with a Supreme Court divorce an answer is
interposed and the "issue is joined." At that point, there may be no judge
assigned to the matter. The judge is only assigned in the case of an Order to
Show Cause. If it is a Family Court matter, a Hearing Examiner, judge, or
Special Referee has already been assigned. However, with a regular divorce no
judge has been assigned. At this point, if the action has been started an answer
has been made a Request for Judicial Intervention should be prepared and
served. This is a form under New York Codes Rules that must be filed together
with a $95.00 check made payable to the County Clerk. The form will, most
likely Request a Preliminary Conference. This should be done within 45 days
of the answer in a divorce. A Preliminary Conference is a good way to get the
case onto the Court's calendar so that a time frame can be set for the eventual
resolution of the matter.
WHAT HAPPENS AT A PRELIMINARY CONFERENCE?
This is often a very uncomfortable situation for clients. Preliminary
Conferences are usually only for divorce cases, and they occur after the lawsuit
has started and the issue has been joined. During the Preliminary Conference,
the clients rarely see the judge. The attorneys show up at various intervals,
discuss the case, and fill out what is called a Preliminary Conference Order.
The Preliminary Conference Order is a Stipulation/Order which controls the
time frame for the entire case. For example, the average Preliminary
Conference Order lists what issues have or have not been resolved. The issues
set forth on the average Preliminary Conference Order include: fault; custody;
support; equitable distribution; forensic; Law Guardian; grounds. These issues
are usually marked unresolved and with respect to forensics and Law
Guardians, they are often reserved.
The most important part of the Preliminary Conference is the discovery and
the deadlines for various exchanges of financial information. Prior to the
Preliminary Conference, a Statement of Net Worth must be prepared, signed,
and filed by each party. The Statement of Net Worth is a burdensome financial
statement that often runs 20 pages and must be prepared by the clients. Clients
prepare the Statement of Net Worth and submit it to their attorneys along with
two years of tax returns; any W2's; and recent pay stubs. I usually prepare a
final professional-looking copy prior to the Preliminary Conference.
A statement of Net Worth is needed in all contested divorce matters. Once a
Statement of Net Worth is exchanged, the Preliminary Conference will
schedule other things, such as: Interrogatories; Notice for Discovery and
Inspection; Notice for EBT's, Appraisals and Experts. At the end for discovery
Note of Issue date. With respect to Interrogatories and Notice for Discovery
and Inspection, these are very large and burdensome discovery demands.
Interrogatories run over 50 pages in many cases and ask every conceivable
question. The party who answers the Interrogatories must prepare a written
response and sign it. It is our practice to serve Interrogatories and to respond
to Interrogatories in a timely fashion. A Notice for Discovery and Inspection
seeks an incredible amount of financial information from the other side. It is
our practice to serve and respond to such demands. For example, when we
represent a spouse we will serve the other spouse a demand for five years worth
of bank statements; loans; proof of income; investments; retirement accounts;
etc. This insures that we have a full and complete financial picture of the
marriage so we can effectively represent our client. It is our practice to assist
our clients in responding to these requests when they are made from the
spouses' attorney.
With respect to depositions, this is a question and answer period that occurs
before a Court Reporter in an informal setting. It at that time that we ask our
clients to pose conceivable question concerning finances that we could not
determine based on the answers to the Interrogatories or the Notice for
Discovery and Inspection. It is also a time for us to object to any improper
questions posed by the other side. Recall, that this is an informal setting,
taking place either at our office's conference room or in a conference room in
the Courthouse. The judge is not present. It tends to be a relaxed setting. With
respect to a Compliance Conference and a Note of Issue, those are dates that
are put onto the Preliminary Conference Stipulations/Order by the court. The
court puts those dates on the Conference Order to control the final date at
which all discovery must be completed and a final Conference whereby the
parties will be before the court and will Stipulate or settle the divorce or mark
it ready for trial. A Note of Issue marks the divorce as ready for trial.
WHEN IS A LAW GUARDIAN OR A FORENSIC APPOINTED?
There are Law Guardians, experts, forensics, and appraisers. A Law Guardian is
a lawyer appointed by the court to represent the children. Law Guardians
Suffolk County as well as Nassau County are usually excellent resources for
the courts and the parties in the divorce. A Law Guardian is also well-paid for
their services. The respective parties and their attorneys argue as to the pro-
rata share of the expenses to be paid by each party that make up the Law
Guardian's fee.
The Law Guardian will often make a recommendation to the judge as to who is
the better parent in a custody battle.
WHAT ARE EXPERTS AND FORENSICS?
Experts and forensics are very useful in connection with the evaluation of
businesses and/or custody matters. With respect to businesses, we work with
forensic accountants and we are known for our ability to assist the Forensic
Account in evaluating our client's assets and/or the assets of our clients spouse.
There are certain assets and businesses that require the services of a Forensic
Account in order to determine what portion a spouse may be entitled to in
connection with a divorce. For example, a couple marries while one of them is
in medical school, and later becomes a physician in a medical group. That case
would require a Forensic Accountant. The Forensic Accountant would evaluate
the spouses enhanced earning or earning capacity as well as the value of the
medical practice and the spouses share in that medical practice as it relates to
the divorce. The spouse that did not go to medical school or become a physician
would be entitled to a part of the physician spouse's portion of his/her medical
practice. This occurs with many professions including lawyers and other
businesses. We have helped spouses with businesses retain the majority
interest in their businesses when their spouse has been less than an equal
partner; has been less than supportive; and is not truly entitled to 50% or the
customary percentage. On the other hand, we have represented spouses that
were more than supportive; self-sacrificing and exemplary in their selflessness
and were entitled to much less than the average percentage formula in
connection with their spouses business or practice.
Forensic Psychologists and Psychiatrists are a very important resource for the
courts and for attorneys and parties in connection with custody battles. A good
forensic could assist the court in determining parental fitness and the dynamics
of the parent/child relationship. Forensics are often used in custody matters.
Forensics as a whole should not determine the custody case. We have been
quite successful in using forensics as a tool to prove our clients fitness as a
parent and to obtain custody for our client. However, we have also been
successful in obtaining custody for clients when forensics have recommended to
the Judge that our client should not have custody.
WHAT ARE APPRAISERS?
Appraisers set a value on businesses, houses, real estates, automobiles, boats,
yachts, artwork, jewelry, etc. The most common asset in Long Island is the
marital home. Homes purchased ten years ago have dramatically risen in value.
The average divorce involves one of the parties staying in the marital home
while the other party is bought out or vacates the home until the youngest child
is 18 or 21. There are also cases where the parties agree to sell the home and
split the proceeds. In any event, a good real estate appraiser can find us the
numbers that we need to settle a case or win a significant percentage of the
equity at trial. Additionally, there are many issues that appraisers can help. For
example, separate property claims; improvements and other value. For nstance,
if a spouse uses a personal injury award or an inheritance (traditionally
separate property) to improve a marital residence by adding an extension, an
appraiser can find us several values such as: the value for the residence today;
the value of the residence prior to the addition; and the difference including
how much of the appreciation was due to the inclusion of the extension.
Therefore, if the house is valued at $300,000 and our client put $30,000 into the
house in ten years ago to improve the value of the house, a good appraiser
could say, hypothetically, that the $30,000 put into the house by our client ten
years ago resulted in $90,000 worth of appreciation to date. Our client would
then be entitled to the $90,000 from the sale of the home and then 50% of the
other value of the home. This is only an example. Appraisers can make
complex additions to real estate; separate property claims; down payment
issues; and capital improvements into hard numbers, which can be calculated
and divided in a court.
