What process should I use to get divorced? NEWS/BLOGS ARCHIVE


Free Divorce Options Presentation Begin July 2018

May 1, 2018 by Kathryn Lazar

What happens if I get divorced?  How does the divorce process work?  Will I have enough money to support myself and my children?  Will I get to be with my children?  How does custody and visitation work?  What will happen to my house if we get divorced?  What will happen to my business in divorce?  Retirement?  Stock?  Stock Options?

We know that people need a lot of information before deciding whether to leave their marriage and how to go about it.  While there is no substitute for a personal consultation that is focused on your particular situation, if you are looking for general information, the lawyers in our office provide an informational program in odd numbered  months on the second Thursday at 4 pm – 5 pm.    The program is entitled “Divorce Options”, and consists of a general presentation by one of the attorneys in the office on the way divorce and separation works.

If you or  anyone you know  could benefit from understanding the  choices – kitchen table, mediation, collaboration and litigation, please join us.   Coming to one of our workshops does NOT constitute a consultation, and individual legal questions cannot be addressed, but we will explain all of your choices and answer general questions.  We will also be available to set up a private consultation at a later time, if that seems appropriate.

Call us at 845-896-9651 if you would like to attend or if you want an individual consultation.  Our 2018 events are scheduled for July 12, September 13, and November 8 at our office, 280 Route 82, Hopewell Junction, New York, located on Route 82 half way between Fishkill and Hopewell Junction.

 

Thinking about divorce – what to consider first

May 2, 2017 by Brett Jones

PERSONAL, FINANCIAL, AND LEGAL CONSIDERATIONS

 

You’re thinking about divorce. It’s a complicated process, whether you look at it emotionally, financially or legally.  You are likely feeling all different emotions, sometimes minute to minute it changes – anger, confusion, fear, hurt, maybe nothing.   This is totally normal.  It is very important though to make rationale, educated, and mindful choices before or in deciding how to proceed with a divorce.  In doing so,  there are an numerous  considerations to contemplate.  Where should you begin?     Here are just a few of the factors to weigh:

 

You’ll have personal considerations:

  • What are your demands at work? You may have a project deadline coming up, or a period when you’ll be unable to take time off. Also, assume you’ll be stressed, even if you don’t have a high-stress job. You may need a “me” day or two.
  • Do you have flexible scheduling to attend court dates? You may want to “clue in” your boss if s/he is empathetic and can give you scheduling flexibility.
  • Can you trust your spouse to be honest? If so, you can get information more easily and reliably. You may even wish to do some of the work together, and will have more procedural options.
  • Do you have children? Divorce is a family affair. No matter how careful or loving you are, your divorce will affect your children and their welfare is taken into account as a matter of law. Also, you may want to get help about how to share it with them.
  • What kind of relationship do you want with your children?
  • Are any of your children disabled or do any have special needs?
  • Is your future relationship with your spouse important to you? If you have children, you need a functional relationship with your ex. Even if you don’t need it for co-parenting, you may want it.
  • Is your spouse working? Is your spouse’s schedule flexible?
  • Are you and your spouse able to make decisions together? What types? You may work well together on a co-parenting schedule but be unable to discuss money without help.
  • If you’re in a same-gender relationship, does this affect your separation? This is not solely a personal question; it may also be a legal consideration (see below) .
  • Has there been violence in your relationship? If so, you may be hesitant about negotiating with your spouse and feel the need for help.
  • Are you able to sit in the same room with your spouse? If not, some procedural options may be foreclosed or unadvisable.
  • Is alcohol or drug use impacting the divorce? You may wish to share this with your lawyer, as another’s addiction affects you whether or not you’re aware of it.
  • Is either of you in a particularly challenging mental state right now? For example, are you grieving the death of a parent? Anxious about things at work? Your child’s situation at school?
  • How do you want to feel during and after the divorce? Depending upon the divorce process you choose, there can be great differences in how you feel if your case is litigated as compared to an out of court process such as mediation or the collaborative process.   How are made to feel during the process?  How you treat your spouse, how your children are treated, and how you want to feel about your spouse and the process once it is completed all may look and feel quite different after a litigation as compared to a mediated divorce or a collaborative divorce.

 

Also consider your financial situation:

 

  • How will you finance the divorce?
  • How will you pay for your expenses and the family expenses during the divorce process?
  • How complicated is your financial situation? If your assets are many and diverse, simply identifying them may be a substantial task. Then they must be valued — another substantial task — then divided. Even if you don’t need help, you may want it.
  • Do you have a retirement plan? Retirement accounts may need to be divided in divorce, and different plans have different requirements for division. If that is necessary, it is often easier with the help of a professional.
  • Do you or your spouse have special ways of being paid for your work, such as stock options, restricted stock units, bonus plans, commission plans, or the like? These forms of compensation are harder to deal with than a simple paycheck and require valuation.
  • Does either spouse operate a business? If so, its value may need to be determined and will likely be a factor in your divorce.
  • Are either your or your spouse self-employed? Are all the sources of income reported on Federal/State Income Tax returns?
  • Same gender couples: Are there special tax, legal, and historical considerations? Especially if you’ve been together a long time, your marital estate may well be smaller than your “relationship estate”.

 

What are your legal considerations?

  • Is filing first important to you? New York has “no fault” divorce, which means it makes no legal difference which divorcing party is the plaintiff and which the defendant. However, if it makes a difference to you, tell your lawyer.
  • Do you want a legal separation or a divorce? In New York, legal separation is available to spouses who no longer wish to live together. Like divorce, legal separation formally sets out the rights and duties of each spouse regarding child custody and support, spousal support and property division. However, there are differences
  • Do you need to consider jurisdictional issues? For a New York court to issue a divorce decree it must have jurisdiction over the parties and over the subject matter. Jurisdiction can be defeated by facts such as too brief a residence in New York, among other things.
  • Do you have separate property? This means property acquired before your marriage and not mixed with marital assets. If property is truly separate, it will not be included among the marital assets to be divided in divorce.
  • Do you have a premarital or post-marital agreement? Such an agreement is a contract that a divorce court must honor unless there is a legal basis to set it aside.
  • If you are in a same gender relationship, what is your legal relationship? Married? State domestic partnership? Something else?
  • Are you or your spouse under a restraining order?

 

These are all considerations that you can discuss with us during your consultation.

 

 

Process Differences between Collaborative Law, Litigation and Mediation- The Process Chosen Can Make All the Difference

March 14, 2017 by Brett Jones

During a consultation with one of the attorneys in our office, we customarily will review the different process options  to divorce. (There are three ways and Lazar & Schwartz does all of them.)    As experienced attorneys, we have learned how important it is to educate our clients from the moment we meet, about their options to get divorced.  The process chosen to get divorced is one of the most critical decisions a person can make.    That choice can make all the difference for everyone involved, including but not limited to  the impact the divorce will have on children; the cost of the process; and in the type of resolution reached.   The article below describes the three ways and their differences. It is from a Toronto law firm but the process descriptions and their differences are the same in New York. You can read the article here.

 

Before selecting the process option, you should always consult with an experienced attorney who will provide you with more information about these process options and will guide you to make the best choice for you and your family.

 

 

Divorce Options™ Workshops

August 23, 2016 by Brett Jones

ISSUES AND INFORMATION, FROM PROFESSIONALS, WITH COMPASSION

 

Divorce Options™ is a public education workshop that addresses the legal, financial, family and personal issues of divorce in an informative and compassionate way.  Presented by trained legal, financial and mental health professionals associated with the Hudson Valley Collaborative Divorce practice group, this workshop series aims to give participants a greater understanding of the divorce process, which can be confusing and overwhelming. Divorce Options™ provides participants with the basic knowledge they need to select the best divorce process option for them and their family.  

 

Advance registration is not required.  Cost for the 3‐hour Divorce Options ™ workshop is $45.00 cash/check (no credit  cards) at the door. Advance registration is available for $40.00 at Eventbrite.com.  Mental health professionals and clergy can attend for free by presenting a  business card.  

 

The workshop is given in White Plains, Fishkill and Poughkeepsie.

 

  • White Plains:
    • 333 Westchester Ave, South Building, Cafeteria
    • First Saturday of each month, commencing October 1, 2016
    • Registration at 8:30 a.m.; program 9:00 a.m. – 12:00 noon  

 

  • Fishkill:
    • Courtyard Marriott, 17 Westage Drive/Route 9 & I84
    • First Saturday of every other month, commencing October 1, 2016,  continuing every other month thereafter (December 2016,  February 2017, April 2017, June 2017 etc.)
    • Registration at 8:30 a.m., program 9:00 a.m. – 12:00 noon

 

  • Poughkeepsie:
    • Courtyard Marriott, 2641 South Rd (Rt 9)
    • First Saturday of every other month, commencing November 5, 2016,  and continuing every other month thereafter (January 2017, March  2017, May 2017, etc.)

 

Divorce — the legal process

July 8, 2016 by Melissa Rutkoske

A STEP-BY-STEP GUIDE TO WHAT HAPPENS IN DIVORCE

 

Wishing you had a road map for your divorce? This article gives you the procedural basics. For purposes of this primer, we’ll assume the divorce case (called an action) is initiated by you. In legal terms, that means you are the plaintiff and your spouse the defendant. Each of you is a party.

 

  1. Summons and Complaint. These documents commence the action. The Summons tells your spouse s/he is required to appear in court. The Complaint tells him/her why. At this stage neither you nor your spouse actually goes to court.

 

  1. Answer. Your spouse responds to the Complaint within twenty (20) days.

 

  1. Reply. If your spouse’s Answer raises subjects that were not included in your Complaint, you have the right to respond to the new subjects.

 

  1. Request for temporary relief. If one party is legally entitled to monetary support in the form of either temporary maintenance or child support from the other while the action is pending, this is sometimes available simply by requesting it. If temporary maintenance or child support is not voluntarily forthcoming, it will be necessary to file with the court a motion pendente lite (“pen-den-tay lee-tay”, Latin for “during the pendency of the litigation”) so the spouse entitled to temporary maintenance or child support has money to live on until the divorce is final, at which time post-divorce maintenance and child support  may be awarded by the court.

 

Settlement, maybe. If it is not necessary for you to make a pendente lite motion and if you have enough financial information, this may be an opportune time to advance a settlement proposal to resolve the case. If you and your spouse, with help from your lawyers, can negotiate mutually acceptable settlement terms, the lawyers can draft papers reflecting your agreement. These papers are then filed with the court.  A separate set of papers called the Findings of Fact and Conclusions of Law and Judgment of Divorce, along with several other required forms are also drafted and submitted to the court for signature.  The divorce becomes final in 6-8 weeks (this time period varies from county to county). If you succeed in negotiating a settlement, skip to Step 14 below.

 

  1. If motion, then court. If a pendente lite motion must be made, you’ll be in court. Motion procedure is similar to the Complaint and Answer: the motion is made, answered, and replied to if appropriate. Sometimes with the answer a cross-motion is filed; the same procedure applies to the cross-motion. If the motion is not resolved by the parties, the court will decide the motion (and cross-motion, if applicable).

 

  1. Preliminary Conference Order. At the first court appearance, the parties and their lawyers sign a Preliminary Conference Order setting deadlines for exchanging financial information, arranging for valuation of any real estate and business assets involved in the divorce, and conducting other pre-trial work such as depositions and interrogatories (these are ways to inquire and obtain information that will be needed for trial but is not yet known, including information from expert witnesses).

 

  1. Note of Issue. Work under the pre-conference order may take a few months or a few years. During this time there will be periodic court appearances for the parties and their lawyers. When everything is done that needs to be done in order for the trial to go forward, a Note of Issue is filed with the court indicating that the case is ready for trial.

 

  1. Pre-trial conference. There is one final court appearance before a trial date is set by the court. At this time the judge will normally attempt to settle the case, or at least narrow the issues for trial. The trial date may be weeks or months away.

 

  1. Trial preparation. This is extensive, expensive work.  Your attorney will need your help and assistance to prepare your testimony and that of the other necessary witnesses.

 

  1. Trial. Trial generally takes between one and five days, depending on the number and complexity of issues to be tried.

 

  1. Decision and Order. Based on all the evidence, the court writes its legal Decision regarding the division of property and/or other matters that were not resolved before or during trial. The Decision tells you the substantive outcomes in your divorce. It is usually available within 6-8 weeks and is accompanied by the court’s Order that it be implemented. However, though the Decision and Order are final substantively, you are still not divorced.

 

  1. Findings of Fact, Conclusions of Law, Judgment. The Order and Decision are not self-executing. Because legal outcomes are based on the facts of any particular case, your lawyer or your spouse’s lawyer drafts Findings of Facts and Conclusions of Law and the court’s final Judgment of Divorce, all of which are submitted to the court for the judge’s signature.

 

  1. Divorce is final. When the judge signs the Findings of Facts and  Conclusions of Law and the Judgment of Divorce, your divorce is final.

 

  1. Post-divorce housekeeping. If your divorce involves division of a pension, a Qualified Domestic Relations Order, or QDRO, will usually be required to affect this. The QDRO may be drafted by your lawyer or by a specialist; your lawyer will tell you if s/he does this specialized work and if not will suggest a specialist. You may also want to change (or make) your will. Your lawyer may give you a “punch list” of tasks for you and your ex to complete so as to comply with court order or with applicable settlement documents.

 

The big picture. Obviously, no general reference such as this can cover all the bases. Things happen. This is a big-picture outline of what you can expect. Negotiating usually occurs throughout the process, as most divorce lawyers try to avoid trial because it is expensive, time-consuming and emotionally draining for clients. The time required to divorce can be as few as 6 months or as many as 3 years, depending on the complexity of your case and the reasonableness of the parties and their lawyers.

 

Finally, children. This post does not cover child custody issues; those are a blog in and of themselves. Just know that if you have children, they may have their own attorney, who you and/or your spouse may have to pay for and who will participate in all court appearances.

 

 

How to save money in your divorce

June 16, 2016 by Melissa Rutkoske

IF YOU LITIGATE, HERE ARE SOME MONEY-SAVING TIPS
Let’s be honest: divorce costs money, and litigation is the most expensive way to do it. Here are my top 10 ways to economize in a litigated divorce:

1)  Gather as much financial information by yourself as you can. Ideally this includes information for you and your spouse, separately and together.  If later it’s necessary to supplement this with information from your spouse, the work you’ve done on your own can serve as a cross-check and highlight areas of inconsistency.

2)  Organize information before giving it to your attorney. Organize it the way s/he suggests. If your attorney doesn’t tell you how to organize it, ask.

3)  Agree with your attorney when you will deliver information to him/her. Deliver it on or before the agreed date; your attorney may have made commitments to your spouse’s attorney about when financial information can be exchanged. Failure to honor these commitments may occasion motion practice in court, adding unnecessary costs.

4)  Disclose all facts to your attorney, whether or not you believe they’re important.  Your attorney can separate legally relevant facts from irrelevant ones, and surprises can be embarrassing and costly.

5)  Listen to and seriously consider your attorney’s advice. After all, it is what you’re paying for, and a seasoned divorce lawyer — provided s/he has all the all the facts — can bring a wealth of experience to a client’s decision-making process.

6) If you have the opportunity to negotiate a settlement rather than continue litigating, respond promptly to your attorney when s/he asks questions. Delays can sabotage a deal.

7) Understand yourself. Know and experience your feelings. It is normal that emotion plays a part in divorce. However, while emotion is a very real part of your experience as a client, it is not how a court looks at issues in your case.

8) Be reasonable. Judges don’t appreciate it you’re not, so being unreasonable can be costly. Stand back, take an objective look and ask yourself whether you’re being reasonable or not.

9)  Don’t make decisions on your own and implement them without discussing them with your attorney. They can trigger a motion from the other side that you will have to respond to in court, which of course costs money.

10)  Understand that your attorney is skilled in legal matters and is not trained as a therapist.  Using your attorney as a therapist, however good a listener s/he may be, is not economical.

 

 

Your divorce case: settlement or trial?

May 2, 2016 by Melissa Rutkoske

TRY YOUR CASE OR SETTLE IT — HOW IS THIS DECISION MADE?

When your divorce case has passed the early stages and progresses to a point where you are deciding whether to go to trial or negotiate an out of court settlement, you have more information than you had at the start of your case. That information may help you decide whether to proceed to trial or negotiate a settlement, but it’s not the only factor. Here you are in one of the most stressful periods of your life (as a stress factor, divorce is second only to the death of a spouse), trying to make a decision in a vortex of legal, emotional and economic components. How do you move forward?

Generally speaking, settlement reduces conflict, stress and expense. In settlement negotiations you control what you agree to and do not agree to. But settlement is not always possible and, if you can do better in court, may not be desirable.

Your lawyer will be a huge help in evaluating your case. An experienced divorce lawyer will be able to do more than just hazard a guess as to whether you’ll have a better outcome in or out of court. Review with your lawyer the factual information developed during the case to assess its merits. Your lawyer will help you understand what can and cannot be proved as fact at trial. Evidentiary rules such as hearsay (a witness cannot testify to something said by another) and the availability of witnesses to testify can limit the information a judge is allowed to consider. The credibility of particular witnesses can affect the probative value of their statements. And of course there’s risk: you do not control the outcomes at trial; the judge does. If trial is looking like a slam dunk, your lawyer can help you answer this question: what if you lose?

Legal analysis is not the only issue. In the decision whether to try your case or settle it, emotions are no small factor. If you lean toward trial, ask yourself why. If your motivation is retribution, redemption, satisfaction or other emotional reasons, acknowledge the emotions — they are your feelings and totally legitimate — then consider the costs and benefits of vindicating them in court. Especially if you have children, ask yourself what your post-trial relationship with your spouse is likely to be. Consider that although you will be a two-house family, you will always be a family, and the two of you will be co-parenting your children together.

Consider also your relationship with your children. If you believe your children will be better off with you than with your divorced spouse, weigh that against the impact of your choice on them. Is a co-parenting plan that you and your spouse agree to in settlement negotiations likely to accommodate their interests better than a judge’s unilateral decision, even though the court is mandated to focus on the children’s best interests? However well-intentioned a judge may be, you know your children better than s/he.

As you size up your case and look into your heart, you may need to look at your checkbook as well. In some divorces, finances play a part in the decision whether to settle or try the case. For lawyers and clients alike, trials are expensive to prepare for and attend. Settlement conferences are generally less costly. Of the small percentage (2-5%) of divorce cases that do go to trial, most are settled during trial. From an economic perspective, trial preparation is to be undertaken only if you truly intend to try the case, or need the leverage of the courtroom to bring your spouse to the negotiating table.

Ultimately it’s your decision. Experienced counsel such as the attorneys at Lazar & Schwartz can help you decide, but at the end of the day, you’re the client and the choice is yours.

 

How To Choose A Lawyer

January 25, 2016 by Brett Jones

FINDING THE RIGHT LAWYER IS ONE OF YOUR MOST IMPORTANT DIVORCE DECISIONS

Where does one start when they are either contemplating whether to move forward with a divorce or when their spouse has already made the decision to divorce? For some people, it can be an overwhelming time filled with emotions and uncertainty. It may be hard enough to figure out what to eat for dinner, let alone, how to find an attorney who will help with one of the biggest decisions and transitions that a person and family can go through. On the one hand, lawyers are in good supply. On the other hand, how do you choose well? That decision can make all the difference. The divorce lawyer that you select can have an enormous effect on how you get through the divorce process and on the ultimate outcome. There are objective and subjective factors, and the best decision-making process utilizes both.

Credentials. Objectively, your lawyer must be qualified to perform the service you want. If you and your spouse want a collaborative divorce, you need counsel trained in that process. The same is true for mediation: if you will be more comfortable at the mediation table with counsel by your side, your lawyer must understand the mediation process and his/her role in the mediation. If you are litigating your divorce, your lawyer should be experienced in matrimonial litigation. And of course you’re going to discuss counsel’s experience before hiring him or her. Be prepared when you consult with an attorney and bring a list of questions with you.

Referrals. Word of mouth is unscientific but effective and there are many referral sources that you can look to. Consider asking friends or family, your accountant or financial advisor, your personal attorney, your employer or co-worker(s), your therapist, a clergy member, real estate agent, or other professionals that you trust. If you know people who are recently divorced, ask about their experiences with their lawyers. Almost everyone has things they liked and did not like about their counsel, and most people are all too willing to share their experience with you. Then it’s up to you to decide whether those experiences are likely to be plusses or minuses for you.

There is another subjective component: fit. If your communication with prospective counsel isn’t fluid and confident, if you sense the two of you are “not on the same page,” hiring that lawyer creates stress in a situation that is already stressful enough. Go with your gut. If you’re not comfortable or feel you’re not the lawyer’s entire focus when the two of you speak, choose another lawyer.

Be careful of attorneys whose marketing relies on gimmicks or catchy jingles. These may get clients in the door, but after that, most service is often lacking. You have the right to fire your attorney and retain a new attorney, but depending on when this occurs, you may have then wasted time and money. Choosing wisely from the start is critical.

You want a lawyer who will educate you to the extent you wish to be educated. This is a function not just of counsel’s professional experience, but also his/her awareness and sensitivity to a divorcing client’s experience.

Bottom line: Do your research before choosing divorce counsel. A lawyer’s professional experience, public presentation and interpersonal style, plus your own subjective impression and common sense are the tools for the task. It could make all the difference for you and your family.