1. Which divorce “process” is best for me?

That really depends on your situation.  If you are committed to resolving your issues outside of court and you feel able to speak up for yourself, in the presence of your spouse, without the aid of an attorney or advocate, mediation might be the best process for you.

If you would feel more comfortable having an attorney present with you in any negotiations or settlement meetings, but would be willing to agree to keep the matter out of court, the collaborative process could work best for you. If you or your spouse cannot be in the same room with each other, or one of you refuses to negotiate or make any efforts to settle, or if there is a history of domestic violence, or serious power imbalance in your marriage then the more traditional litigated approach is best-suited, and you’ll need a lawyer to represent you in court.

Click on “Three Processes” for more complete descriptions of the different options open to you.

2. How much will a divorce cost?

It depends upon how complex your issues are and how much conflict you and your spouse have.  It also depends on the process you choose.  In mediation there is no retainer required up front.  You pay at the end of every session, and you pay in advance for preparation of the separation agreement.  In the Collaborative and traditional representation processes there is a retainer required up front, the amount of which is based on how complex or complicated your case is. There may also be court costs and other fees in addition to attorney fees, all of which would be discussed in a consultation.

3. What if I can’t afford the fees?

If there are marital assets that your spouse has complete control over and you have no access to, perhaps he or she would agree to pay for the mediation, or pay the fees needed to hire an attorney.  If he or she does not agree, a motion can be made in Court to order your spouse to pay for your legal fees.  When making such a preliminary motion we often also ask the Court to award temporary custody, child support and spousal maintenance.  You will still need some source of funds to get your lawyer started on such a motion.

4. What should I do to begin to prepare for my divorce?

The decision to divorce is a difficult one.  The process can also be very challenging emotionally.  Many people find it very helpful to consult with a therapist to help make the decision and to ease the emotional challenges of the process.  If you have children you may also want to consult with a child specialist about the best way to prepare the children for, and to care for them during this transition.  It is usually best for you and your spouse to tell the children together that you will be separating or divorcing and to assure them that you will both remain very active in their lives.

Before a divorce can be finalized the following decisions will have to be resolved:

a.   Parenting & Access:  How you and your spouse will make decisions for your children and how you will spend time with them.  To prepare for parenting you can begin thinking about how you have made decisions for your children in the past and how you would like to in the future.  For access you should consider what everyone’s schedule is and how you and your spouse can maximize your time with the children.

b.   Support:  Practically speaking, how will the same amount of money that used to support one household now support two?  Legally this includes child support and spousal maintenance.  Even if you have never lived on a budget in the past, this is a good time to start.  You will want to make sure that your expenses do not exceed your income.  Begin by preparing a list of anticipated, post-separation monthly expenses.

c.   Equitable Distribution:  How will you divide what you have accumulated during the marriage?  You should begin to gather whatever financial information you can.  You will need at least two years of tax returns, recent pay stubs, and any and all documentation of your assets and debts.  This includes bank and brokerage account statements, IRA and other retirement account statements, life insurance statements, credit card statements, etc.  You may ultimately need to have your house, apartment, business, pensions, licenses and degrees appraised. You and your spouse are entitled to full financial disclosure from each other and will likely be exchanging sworn affidavits of net worth, no matter which process you choose.

5. Do I need grounds for divorce?

Yes.  You can’t get divorced based on irreconcilable differences in this state. 

The only no-fault divorce provision that we have in New York State is when you have had a signed separation agreement for more than a year and have lived apart for more than a year. The Separation Agreement details how you have resolved the issues listed above.

If you do not have a signed separation agreement and have not lived apart for more than a year, you need grounds for divorce.  The legal grounds in New York, pursuant to Domestic Relations Law, are:

Cruel and Inhuman Treatment - The situation has to be so serious that it is unsafe or improper to continue to live together;
Abandonment - This exists if one of you left the marital residence more than a year ago, or if one of you has refused to have sex with the other for more than a year;
Adultery - This must be proved by third party evidence, which is not so easy to obtain. Often adultery is included as part of cruel and inhuman treatment;
Imprisonment - The defendant must be imprisoned for three or more consecutive years.

6. How does the divorce process start?

If you are mediating we meet together in a number of sessions until we have resolved all issues.  We tackle the issues one at a time by gathering information, identifying conflict and brainstorming options to resolve the differences.  The more creative you can be, the better your chances of finding a solution that satisfies both of you.  The culmination of mediation is usually a signed separation agreement.  Before the agreement is signed you should both have it reviewed by separate attorneys.  Even though your mediator may be a lawyer, he or she is not acting as an attorney for either one of you, and even though the mediator may give you legal information during the course of mediation that is not the same as being given your legal rights.  It is important for you to know those rights before you sign a separation agreement.  This protects against either one of you trying to have the agreement set aside in the future because, in part, you did not know your legal rights.  There are many lawyers who act as review attorneys, who understand your wish not to turn your divorce into a war and who will advise you of your legal rights and responsibilities.

In the Collaborative Process each party meets first with their respective attorneys to give an overview of the marriage, children, earnings and assets.  The attorneys may speak to each other before the first scheduled “4-way” meeting (with the two clients and two lawyers) to discuss an agenda.  At the first 4-way this agenda is reviewed with the parties who are free to craft their own agenda.  Also, at the first 4-way the parties and the lawyers sign a collaborative agreement, wherein they all pledge that they will not be going to court or threatening to go to court.  You can see an example of this agreement at www.collaborativelawny.com.  Any and all financial documentation is exchanged voluntarily.  The goal, similar to mediation, is to reach a settlement of all issues that is fair for both parties and good for the children.  If you and your spouse are ultimately unable to reach a resolution of all matters, and you have to resort to the courts, you both must hire separate attorneys.

In the traditional, litigated representation there are a couple of different ways to start.  Even though you and your spouse have chosen not to mediate and not to collaborate, it doesn’t necessarily mean you have to go to war.  After being retained, if it seems appropriate, we may start by sending your spouse what we call a “friendly letter”.  This letter will assure your spouse that you are interested in having an amicable settlement, and that your lawyer strives to do the same.  We ask your spouse to contact us, or have his or her lawyer contact us so that we may begin to work out the details of a settlement.  If your spouse, or your spouse’s attorney, does not respond to the friendly letter, we will discuss whether to send a second letter or to commence an action for divorce.  This requires filing a Summons in Supreme Court and having him or her served by a process server.  At that point he or she has 20 days to respond, and the proceedings progress from there to conclusion.  If possible and appropriate, it is very likely that, at some point, we all get together for a 4-way meeting.  The advantage of the 4-way is that you can both listen to each other and try to understand each other.  When people understand each other, even if they don’t agree, at least they are not angry and are better able to come up with a resolution of their differences.  Understanding is also key in mediation and collaborative law.

These are just some of the questions many people ask.  You may have different questions or more questions which we would be happy to discuss with you personally. Please call at: 718-767-7667.

YOUR RESOURCE FOR COMPREHENSIVE MATRIMONIAL AND RELATED SERVICES.