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Preparing for a Consultation

What should I bring with me to a consultation?

During a consultation with our office, we will provide you with a lot of information. One of our goals is to educate our clients right away. It is necessary to have as full an understanding of your options as possible, regardless of whether you are consulting us for a divorce, family court, a pre-nuptial agreement, post-Judgment of Divorce or post-court order modification or enforcement, or any other matrimonial or family law related issue. All legal papers or letters from other attorneys that have been served or sent to you should be brought to the consultation, as well as any previously signed Judgment of Divorce or Family Court Order. If finances are an issue and you have a copy of the most recently filed income tax return, or other financial records, you may also bring in those records.

We also suggest that you prepare a list of questions that you may have ahead of time so that you can be sure to have those questions answered during the consultation.

General Questions & Litigation

What should I wear to Court?

While a suit is not required, we do ask that our clients dress neatly, in nice pants and a nice shirt, or dress. We would not suggest shorts and/or a t-shirt. While different judges may have differing opinions on dress code, we believe it is better to dress as neatly and professionally as possible at all times.

What should I expect if we have a Court appearance?

Before any Court appearance, your lawyer will prepare you for what to expect. Each Court appearance is different, so there isn’t a general rule about what will happen. You should expect that your case will be one of many before the same Judge (unless you are scheduled for trial, and even then, there are sometimes other matters scheduled as well), so you should expect that you may have to wait your turn.

All of the Courthouses have a security system; expect essentially “airport-like” security checks. Please be sure you leave anything like a penknife or something that may look like a weapon in your car before coming in to the Courthouse. If you forget, they will hold the item and not permit it into the building.

Where are the Supreme and Family Courts located?

Dutchess County

Supreme Court – Depends on which Judge is assigned to your case: 10 Market Street, Poughkeepsie, New York, 12601 50 Market Street, Poughkeepsie New York, 12601.

Family Court: 50 Market Street, Poughkeepsie, New York, 12601.

Ulster County

Supreme Court: 285 Wall Street, Kingston, New York Family Court: Lucas Avenue, Kingston, New York.

Orange County

Supreme Court and Family Court are both located at 285 Main Street, Goshen, New York.

Putnam County

Supreme Court and Family Court all both located at 20 County Center, just behind Gleneida Avenue, Carmel, New York.

A member of our staff generally calls the week prior to a court appearance to remind you of the date and time of your appearance, as well as the location. If you have any questions, do not hesitate to contact our office.

How do I obtain a divorce after a separation agreement has been signed?

Since 2010, in New York State, people can obtain a no fault divorce once they have a signed separation agreement, based upon irreconcilable differences for six months or more. If you enter into an agreement as a consequence of mediation, or after being represented by a lawyer, that agreement will provide the basis for a no fault divorce. Either party can have the necessary papers drawn up to submit to the Court to have a divorce granted. Only a Court has the power to grant a divorce in the State of New York.

At the present time, the Court requires the submission of quite a few documents before it will grant an uncontested divorce. Lazar & Schwartz can prepare these documents for submission to the Court. You may also prepare them yourself, if you wish. See nycourts.gov if you want to try to prepare them yourself. At any time after the agreement is signed, whichever party wishes to proceed should obtain an attorney for the purpose of preparing these documents. Because you have a signed separation agreement, the cost of obtaining such a divorce is generally quite low.

What should I do if I cannot make up my mind whether to end my marriage or not?

  1. Have a consultation with us to review your situation.
  2. Have a consultation with a divorce/family counselor to assist you. We can suggest particular people if we have met with you, or you can meet with one of the collaborative divorce coaches. Visit collabdivorce-ny.com
  3. There are several books that people sometimes find helpful.

Recommended Reading: Too Good to Leave Too Bad to Stay: A Step-by-Step Guide to Help You Decide Whether to Stay In or Get Out of Your Relationship by Mira Kirshenbaum Relationship Rescue; A Seven Step Strategy for Reconnecting with Your Partner by Phil C McGraw, PhD Until Death Do We Part (unless I kill you first); A Step By Step Guide To Resolving Relationship Conflicts by Dr. Jamie Turndorf

What can I do to protect my children while I’m divorcing?

1. Never put your children in the middle 2. Follow the Children’s Bill of Rights 3. Get professional parenting advice. 4. Meet jointly with a Child Specialist. Visit collabdivorce-ny.com 5. Read this: Preparing Children for Divorce by Marsha L. Shelov, Ph. D. and Maria Alba-Fish, Ph. D. For the past 10 years, we have been working with parents to help their children through divorce. Divorce is a psychologically disorganizing experience for families. Parents themselves often feel bereft, powerless and angry. The adults often need validation and support to reorganize their own lives to enable them to parent their children. During and following the divorce children need their parents to distinguish between the parenting relationship and the marital relationship. The marital relationship is ending, but the parenting relationship continues. The needs of children in a divorce are different in at least one important way from the needs of each parent. While parents may be antagonistic and yearn to have nothing to do with each other, it is better for the youngsters if both parents can collaborate in parenting their children. The following guidelines are based on our clinical work and the professional literature on the effects of divorce. We have developed them so parents can help their children during the divorcing process.

  1. Parents can help prepare their children for the separation. Children should be told about the separation after the decision is definite. Although families have different constraints regarding their initial steps and time tables, it is better for the children to be told between several days to a few weeks before a parent moves out. Parents should tell the children together.. This joint announcement communicates that even though the parents are separating, they are prepared to work together to take care of the children. Telling their children at the same time also mobilizes the sibling support network. Later, each parent can speak separately to each child and address individual needs and questions. There are, of course, exceptions to the guiding principle of parents together telling the children. For example, if this is a remarried family, it might be more appropriate for each parent to tell his/her own children first before sitting down in the larger blended group.
  2. Children should be given a clear, age appropriate and truthful explanation that is endorsed by both parents and that is sensible according to the children’s concrete experience. A sense of further unspoken secrets can serve to increase the already anxious home environment. Each couple has distinct reasons for divorce, but the following examples could be a helpful guide. If parents have been arguing frequently one explanation might be: “You have heard Mom and me fighting a lot. We have tried but have been unable to agree on issues or to stop fighting.” Another example for parents who have grown distant: “You may have noticed Dad and I don’t talk or laugh much together, we are no longer able to feel close to each other, and we can not make it better.” A difficult issue can arise if one parent has entered a new relationship before leaving the marriage. Parents may think children don’t know, but, often, children are aware of more than parents think, and secrecy increases anxiety. How to handle this issue is complex. A useful guiding principle is that the parents agree on what and when to tell their children.
  3. Parents need to attend to their children’s feelings about the, news. Parents can and should express their own sadness, disappointment, failure and anger simply and honestly. Nonetheless, it is important for parents not to break down into an uncontrolled expression of feeling. If parents state their feelings honestly, it can permit the children to express their feelings. The focus of the discussion should be the children’s feelings. Once feelings are voiced directly, children may be more likely to turn to their parents with questions, and for support and comfort.
  4. Reassure the youngsters that the parents are separating from each other and not from the children. Many children are fearful of abandonment and the earlier this reassurance begins the better.
  5. Children worry about how the divorce will affect them. They are concerned about the details of daily life. As soon as the living arrangements are settled, they should be shared with the youngsters. Who is living where and with whom? What changes will there be in childcare, school routines, schedules, etc.? Input from the children regarding their wishes should be considered when possible. They feel powerless about what is happening to their lives and incorporating their wishes about details can help. If the details have not been worked out, then children should be assured that they will be told as soon as things are clear.
  6. Assure youngsters specifically that they will be told of all future major decisions.
  7. It is natural for divorcing parents to argue. However, children feel they are to blame if they are the focus of the conflict. It is important to avoid arguments in front of the children, especially when they are about arrangements for the children. When fights do occur, parents can acknowledge that they do argue about the children, but it is not the children’s fault and it is not what caused the separation. They can restate that they (the parents) have trouble agreeing on how to handle homework, curfew, T.V. time, etc. However, it is best if such conflict can be handled without fighting and, especially, not in earshot of the children.
  8. As life goes on, divorcing parents tend to feel the other parent is not doing the right thing. Focus on what you need to do with and for your children and try not be distracted by your former spouse’s behavior. Further, it is very distressing to children to have one parent devalue, sneer and grumble about the other. Children hope that they will be able to maintain a relationship with each parent, and “bad mouthing” often makes them feel they will have to pick one or the other.
  9. We encourage parents to mobilize their own support networks and not to rely on their children for support. Their emotional well being is important to the long term adjustment of their children and themselves; finding their own sources of support is essential.

Recommended Reading: Kids are Worth It: Giving Your Child the Gift of Inner Discipline, Barbara Coloroso, Avon Books, New York, 1995. This is a book that thinks through the parenting of children in ways that foster mutual respect, give children a sense of power in their own lives, help them to make decisions, to take responsibility for their actions, and to learn from their own successes and mistakes. Rejecting the ‘quick fix” solutions of punishment and reward, Barbara Coloroso uses everyday family situations — from sibling rivalry to teenage rebellion — to demonstrate sound strategies for giving children the inner discipline and self-confidence that will help them grow into responsible, resourceful, and resilient adults.

What is the process for getting divorced? What happens if I hire you to go ahead?

STEP ONE: The first step is deciding what process you want to use. For more information about this, see (insert link).

STEP TWO: If you decide to proceed with a lawsuit, then the next step is the filing of an action. If you decide to use collaboration or you think an agreement can be negotiated, then you would not file the lawsuit until the agreement is completed. We would then reach out to the other side to try to start a negotiation or collaborative process.

STEP THREE: Regardless of which process you use, the next and longest step is the financial information gathering. It is necessary to collect the last three years tax returns, fill out a financial Statement of Net Worth prescribed by the county, and provide back up for all the assets and liabilities.

STEP FOUR: After all the information is gathered, the next step is trying to negotiate a Settlement Agreement. If we are unable to negotiate an agreement, then the court will hold a hearing necessary for the court to make the final determination on the marital issues.

STEP FIVE: The final step is the paperwork, which ends with the Judge signing of the Judgment of Divorce. If a pension is to be divided, a separate court order has to be prepared for that purpose.

What if I’ve already been served with divorce papers?

When you hire us to represent you in a divorce action, if your spouse has already commenced the action, we will prepare an answer and immediately contact the other attorney to see if we can agree on the next steps.If a divorce action has not yet been filed, we will discuss the benefits of difference possible approaches, and assist you in deciding whether we should commence a divorce action immediately or utilize one of the other options (collaboration, negotiation, wait).

Is it always necessary to go to Court for a divorce?

No, it is not always necessary to go to Court in person for a divorce.If you and your spouse can enter into an agreement about the terms of your divorce, no court appearances are necessary.Once a divorce action is filed, we do not have to go to court unless the circumstances require the involvement of a Judge to oversee the case.If we do not believe that a Judge is needed to oversee the case, we can conduct the divorce process out of court, taking the same steps as we would in court, which in summary are financial information gathering, negotiating a settlement agreement, and then submitting the divorce papers to the Court for signature.

What’s the difference between a Separation Agreement and a Divorce?

A Separation Agreement is a contract in which the two of you agree on all the terms of your separation and divorce.   You and your spouse must sign the agreement in front of a notary, who must sign the document in a required form.

A Divorce Judgment actually divorces you and has to be signed by a Judge.

Some people remain separated after signing an agreement for a period of time for various reasons — to maintain health insurance, because they do not yet wish to be divorced, for tax filing reasons, for religious reasons.

The two main consequential differences are that you must be divorced to remarry, and you cannot maintain family health insurance once you divorce.

Once I have a Separation Agreement that is signed, what is the procedure for finishing the divorce, how long does it take and what does it cost?

As stated above, often times people think that since all of the issues of the marriage have been decided and agreed upon in the agreement, that they will be automatically divorced.  This is not true.  A set of divorce papers has to be drafted.  These papers include signed Affidavits from each party, along with documents that the court must sign which include the actual Judgment of Divorce.  Parties should be aware that on the New York State Courts website there are uncontested divorce papers; however, these should be used by litigants with care. Unintended problems may arise by litigants filling out these forms themselves.

The cost of an uncontested divorce is approximately $1,000, which includes preparation of the divorce packet, filing fees with the County of $350.40 and attorney review time.

Our office is happy to prepare your uncontested divorce papers, unless you were a mediation client.  In that case, since we did not represent either of you, you will need to seek out another firm to represent one of you in preparation of the divorce papers.

What is the formula for Spousal Support (or alimony) in New York?

Spousal support in New York State is set by statute.  The formula is calculated two ways and the lower of the two numbers is the obligation.  The two ways are calculated as follows:

(1) 20% of Payor’s income up to and including the cap  minus 25% of payee’s income

(2) Payor’s income up to and including the cap plus payee’s income which equals combined income.  40% of combined income minus payee’s income.

If the payor is also the non custodial parent and is paying child support, maintenance is calculated by method one.

If child support is not to be paid, or, if child support is to be paid, but the maintenance payor is the custodial parent (i.e., the maintenance payor is not the child support payor), 20% of payee’s income is subtracted from 30% of payor’s income.  As you can see, these situations can be complicated.

The same calculations are used for temporary support (support during litigation) and permanent support (support after litigation is over).  The length of time you will receive maintenance is dependent upon how long you were married as set forth below:

Length of Marriage: Duration of Maintenance

  • Up to and including 15 years: 15% to 30% of length of marriage
  • More than 15, Up to and including 20 years: 30% to 40% of length of marriage
  • More than 20 years: 35% to 50% of length of marriage

The schedule is merely a guideline range; the court can vary from it if there is reason.

Orders of Protection: Family Court

If I think I am in danger or my children are in danger, what should I do?

If the danger is immediate, your first and best option is to call the police.  If you are able to extricate yourself from the dangerous situation, do so.

The Family Court is open Monday through Friday from 9:00 a.m. until 5:00 p.m. to file petitions.  If you or your children are in danger, you must go to Family Court and file a petition for an Order of Protection.  There are varying levels of orders of protection, from a vacate order and full stay away where the respondent or person whom the petition is filed against is made to leave the residence and stay 500-1000 feet away from you and/or the children, to what is called in layman’s terms as a “Be Good” order that merely states that the respondent must not do what he otherwise should not do anyway, such as making threats, harassing you, stalking you or doing numerous other offenses.

If I bring a criminal charge against my spouse for domestic violence or other safety concerns, what happens next?

In a civil matter, you are the person who is prosecuting the action against the respondent.  In a criminal matter, the State of New York is prosecuting the action, meaning that the assistant district attorney who represents The People of the State of New York is making the call regarding what charges they will prosecute against the Defendant.  The victim’s role is to provide information to the ADA and to testify should The People choose to bring the case to trial.  You should cooperate with the ADA.

If I have an Order of Protection and the other person violates it, what should I do?

Orders of Protections are on file with all police departments.  Should the Respondent violate the order of protection, you should go to your local police department and notify them of the violation.  If the police find it to be a violation, the respondent will be arrested.  You also can go to Family Court and file a violation of the Order of Protection.  This petition will stand on its own and be heard in the normal way all petitions are heard.

Custody Cases: Family Court

What is the test for deciding custody cases?

The Best Interest Standard is the test a court will use to decide with whom your children should reside and how much parenting time the other parent should receive, taking into account many factors.

What is the difference between joint custody and sole custody?

True sole custody is not the most common custodial situation.  Sole custody means that one parent has decision making for all legal matters regarding the child/ren.  That sole custodian has access to all medical and school records, to the exclusion of the other parent.  The other parent merely has visitation. Sole custody is awarded after trial, in most instances.

Much more common is joint legal custody.  Joint legal custody means that both parents have access to all information for the child/ren.  Both parents have input into making major decisions regarding medical, school and religious matters.  The parents divide up parenting time.  One parent may have residential custody of the children, and the ability to have the final say if the parents cannot agree on a major decision for the children.  Or the parents may share time exactly equal and also share decision making, with no one parent having the final say.  There are may ways to frame joint custody arrangements. Each case is different, but the theme in joint custodial situations is the ability for the parents to work together with civility toward the best interests of the children

Will my children have to go to Court if I bring a custody case?

Your children will be assigned their own attorney.  If the case cannot be settled, the court may hold what is called an “in camera” interview with the children.  The parents are not present. The children meet with the judge and their attorney alone.  This usually only happens after the trial on the matter is completed.  Different judges feel differently about holding these interviews, but it is very rare for a child to go to court except in this limited manner.

Child Support Cases: Family Court

How long does it take to get support through the Family Court?

Child support cases are the shortest cases in Family Court.  The process is called a Summary Proceeding, meaning that there are different and more simple rules for the completion of a case.  Typically, a support case will only take two appearances.  On the first appearance, the party who was served the petition is arraigned on the petition.  The parties then state their positions with respect to the support matter and the Support Magistrate attempts to resolve the matter.  If the matter cannot be resolved , the court will set the matter over for one more appearance for trial.  At that appearance, the case must be resolved through a settlement, withdrawal or trial.

What is the process for getting child support?

In order to get child support, you must file a petition against the non custodial parent.  This is filed with the Family Court Clerk in the county in which you reside.  The court will provide you with a court summons and copy of the petition which must be served upon the other party.

What is the formula for child support?

Child support is paid based upon the number of children to be supported and the non custodial parent’s gross income minus Social Security and Medicare withdrawals (FICA- approximately 7.65% of gross wages).   For one child, the non custodial parent pays 17% of gross income minus FICA.  For two children, the percentage is 25%; for three children the percentage is 29% and for four children, the percentage is 31%; for five or more children, the percentage is 35%.  Child support is not taxable income to the custodial parent and is not tax deductible to the paying parent.

Mediation

Does it (“Mediation”) work?

For many people, it does work. Over 90% of couples who undertake mediation with Kathryn S. Lazar or Brett Jones successfully resolve all issues and enter into a separation agreement. Participants who complete the process report great satisfaction with the process and outcome. Agreements reached this way are much more likely to be adhered to by the parties as compared with court ordered outcomes after a trial.

What if one spouse has already seen a lawyer?

Having seen a lawyer is not at all incompatible with the mediation process. Whether before or during the process and especially before a final agreement is signed, it is recommended that each participant discuss with his or her own individual attorney the relevant law and whether he/she wishes to enter into the proposed agreement.

How can we prepare for mediation?

Read “Getting to Yes: Negotiating Agreement Without Giving In,” Think in advance about the issues that are important to you. Speak with an attorney. Engage in discussions with your spouse (always outside the presence of children), provided that both of you are willing to do so and can do so respectfully and politely. Gather relevant materials, such as mortgage documents, pension information, tax returns, W-2’s, 1099’s, pay stubs, bank statements, and brokerage statements.

How long does it (“Mediation”) take?

The length of time it takes to complete a mediation depends upon many factors: the number of issues the couple has to resolve, the attitude and level of preparation for the meetings, the degree of cooperation in exchanging relevant information and the willingness to compromise. The usual couple has between three to five mediation sessions over the course of three months time. the agreement might take another month for drafting, reviewing and finalizing.

How much does it (“Mediation”) cost?

Cost correlates with time. Logically, the longer it takes to reach a final agreement, the greater the cost. The initial consultation is a set fee of $250.00 If the parties choose to proceed with mediation, there is a non-refundable one-time $350.00 administration fee. Subsequent individual mediation sessions vary in length and therefore cost. Sessions vary from one hour to two hours in length. The cost is $350.00 per hour. A one hour mediation session costs $350.00; and an hour and a half mediation session costs $525.00. Once an oral agreement is arrived at, and the parties request the drafting of a separation agreement, there is a charge of $750.00, in advance, for the preparation of the separation agreement. This covers the initial draft of a basic separation agreement, any minor revisions and up to one half hour of review with the advisory attorney. If the agreement is complex and/or further revisions are needed, there may be an additional cost based upon the same hourly rate of $350.00 per hour as is charged for the mediation sessions themselves.

Who pays for mediation?

The parties themselves agree who pays for the mediation. Usually the parties agree to split the cost proportionately or equally between them, or to use marital funds.

Who are suitable candidates to participate in the mediation process?

Couples who want to avoid the cost and emotional upheaval of a litigated case. Couples who want to spare their children the pain of a protracted litigated custody fight. Couples who want to resolve their disputes and still maintain respect for each other. Couples who can truly be reasonable and appropriately flexible.

Can we mediate if the dispute involves a privately owned business, rental property or complicated financial assets?

Yes. Sometimes there are valuation issues, tax questions, financial planning issues that need special attention. It is sometimes necessary to retain appraisers, financial planners, business evaluators as part of the mediation process. Such persons are retained as neutrals to assist the parties on an “as necessary” basis and only upon the consent of both parties.

Is mediation appropriate if there are few assets to distribute?

Even when people do not have many assets, they still may need help in resolving disagreements regarding those assets. Sometimes disagreements are not about the money. The initial consultation is designed to determine whether mediation is right for the couple.

Collaborative Divorce

What is Collaborative Divorce?

Collaborative Divorce, a new approach to divorce, offers couples an opportunity to separate and finalize a divorce with a minimum of bitterness and animosity. Instead of going in front of a judge, the two parties and their attorneys sit down together to work out the details of the dissolution of their marriage, with the help of mental health professionals and financial advisors. Each party has a lawyer and the couple has a financial advisor and a divorce coach to assist them. The team works collaboratively with the couple so that divorcing spouses can reach agreement about the following:

  1. Division of property
  2. Spousal support
  3. Child support
  4. Children’s living arrangement
  5. Marital status

Both parties are represented by an attorney throughout the process. No court appearances are required, and all necessary paperwork can be completed by the attorneys. The primary objective is to ensure that agreements are enduring and better for the children, and take both parties’ future concerns into consideration.

What is the Collaborative Divorce Team of the Hudson Valley?

The Collaborative Divorce and Dispute Resolution Association of the Hudson Valley (Kathryn Lazar is one of the founders) is an association of Attorneys, Mental Health Professionals, and Financial Specialists with extensive experience in our respective fields. As a result of years of work with divorcing couples and families where we have seen the tragedy of the adversarial process, we have come together sharing a powerful commitment to create an alternative possibility for families. We are part of a growing national movement of professionals who are dedicated to, and trained in, a collaborative model of divorce. To improve our own ability to work collaboratively, we engage in ongoing training experiences designed to promote this.

Is Collaborative Divorce Right For Me?

It may be if:

  • You want emotional, financial and legal help to guide you through your divorce.
  • You have children and want to make sure their needs are addressed.
  • You are concerned about containing the costs of divorce.
  • You want to contain the conflict that often accompanies divorce.
  • You wish a confidential process without adversarial attorneys and without going to trial.

The Collaborative Divorce team typically consists of:

  • A Collaborative Law attorney for each individual
  • A divorce coach, who is a mental health professional
  • A child specialist (if there are children)
  • A financial planner specially trained in pre-divorce financial planning

Collaborative Divorce Attorneys: Each spouse has his or her own attorney. These attorneys are pledged to help you throughout your divorce by working cooperatively with you and your Collaborative Divorce “team”. They are committed to protecting your rights, but serve as true “legal counselors” – educating, mediating, and facilitating your legal process. Your Collaborative Divorce attorney will meet with you individually as well as in four-way meetings with you and your partner and your partner’s Collaborative Divorce attorney.

Collaborative Divorce Coaches: These mental health professionals support you through the process and work with you to help reduce the stress and strain of divorce. They meet with you individually and together to develop communication skills that will help you during and after your divorce. They also assist with developing parenting strategies and plans to protect your children.

Generally one mental health professional, either a social worker or a psychologist, will serve as a neutral divorce coach for the couple. The coach is the case coordinator, insuring that the process runs smoothly. Occasionally each party has their own coach, when additional individual support is desired.

Child Specialist: Because children are affected in different ways by a divorce, the child specialist meets with each of your children to see the divorce through their eyes, and assesses for you how your child is doing. The specialist then meets with both of you and your coach to give you feedback, answer any questions you may have, and give you input to help you design a parenting plan that fits your unique needs. If necessary, the specialist can provide direct help for your children throughout the divorce process.

Financial Planners: These Financial Specialists help you gather and organize all your financial information needed for the divorce process. They also help you determine your immediate and long-term cash flow needs. As a neutral facilitator and educator, the planner will help you fully understand your financial resources, and help determine what your financial future will hold, depending on the settlement options possible. Depending on your preferences, the planner will meet with you jointly or separately. Your attorneys and coaches will help you decide which specialists are best suited to your individual needs.

All team members work together to make the divorce process as easy as possible. Each is a specialist in their own field and thus can maximize your resources and minimize the time and money spent. Each hour is spent working directly on your case. There are no “billable hours” wasted on extraneous paperwork or sitting in court.

What Are the Benefits of Collaborative Divorce?

Collaborative Divorce focuses on all involved parties reaching a mutually agreed upon settlement of their disputes. The process results in valuable benefits. It creates a cooperative environment where communication remains open, and provides a setting where you can work with your spouse to meet your children’s needs—regardless of their ages. That helps set a tone for open communication and reduced conflict in the future. It establishes a team, instead of starting a fight. Your lawyer advises and supports you; your spouse’s lawyer advises and supports your spouse. Your divorce coach, financial specialist, and child specialist work with you and your lawyers. By all working together you retain control of the process.

In matters requiring expert opinions, both parties can jointly hire one independent consultant. That helps shorten the duration of the case and reduce the overall expense.

You and your spouse shape the agreements together, which means you both are more likely to stick to the agreement. That diminishes the parental conflict the adversarial system generates and helps protect children from facing the anguish and divided loyalties that result, both during and after the divorce.

You can schedule meetings without waiting for court dates. That means you generally spend less time and, as a result, less money to reach closure. It also means you reduce the fear and anxiety associated with court proceedings.

Your issues stay within the Collaborative Divorce setting. That gives you more privacy and greater confidentiality—and less stress during an already stressful time.

How does Collaborative Divorce compare to Litigation?

Open Exchange of Information In a Collaborative Divorce, all participants agree to an open, honest exchange of accurate information and necessary documents. Neither spouse takes advantage of the miscalculations or inadvertent mistakes of others, and works to ensure that the Agreement covers all necessary issues.Custody In a Collaborative Divorce, both parties agree not to involve their children in disputes. They agree to speak respectfully to, and of, each other in the presence of the children. The spouses negotiate and agree upon parenting decisions, rather than delegate that authority to others.Experts In a Collaborative Divorce, the spouses jointly choose and employ the services of a certified financial planner and any accountant, appraiser, mental health professional or other consultants whose services may be required, instead of each hiring his or her own adversarial experts.Negotiations In a Collaborative Divorce, the spouses acknowledge each other’s legitimate needs and work together creatively for their mutual good, and the good of the whole family, instead of striving for individual advantages.

I’m so angry right now, I don’t think I can talk with my spouse.

The Collaborative Divorce process takes this into consideration and uses the attorneys’ roles, the divorce coaches, and structured agendas to make talking to your spouse easier. If you or your spouse’s anger is so strong that you cannot think straight or act rationally, you may not be a good candidate for Collaborative Divorce. However, communication problems are expected in troubled marriages. Collaborative Divorce is designed to improve communication.

I feel I am clearly in the right and that in trial the judge will take my side. Why then should I opt for Collaborative Divorce?

For the most part, divorce judges believe it takes two to destroy a marriage. You may be disappointed if you assume you are “right” and your spouse is “wrong.” By trying your case before a judge, you risk the Court’s not seeing all the problems the same way you do, and you may lose control over decisions affecting the rest of your life. Judges do not have the time most people would like for them to devote to their case.

What is the end result of a Collaborative Divorce case? How are interests, rights, and agreements secured?

With the advice and assistance of counsel, coaches, financial planner, and the child expert, parties can conclude their discussions, and secure any agreements by legal contracts and/or court orders. They might walk away satisfied, with no further action needed. Generally, people agree upon a full settlement of all issues relating to the children, finances, assets and liabilities, and a divorce judgment incorporates that agreement as part of its order.

How expensive is Collaborative Divorce?

Because there are no court appearances and little paperwork, the total cost of hiring the Collaborative Divorce Team is usually less than the cost of hiring two lawyers to litigate a divorce. The actual cost depends on how long it takes to reach an agreement that is acceptable to both parties.

How do I get started?

Share this information with your spouse. If both of you want to try Collaborative Divorce, here are the steps to follow as you begin the process:

Each of you selects an attorney from the list of Collaborative Divorce lawyers, or jointly meet with a Divorce Coach to learn about the process.

An informational meeting with either an attorney or a coach can help you decide whether the Collaborative Divorce Process is for you.

Both spouses and your attorneys attend the first collaborative meeting to sign the Participation Agreement that governs the process. If temporary measures are required to maintain stability during the negotiation process, these will be included in the participation agreement. Each of you meets individually and jointly with your respective attorneys and/or Divorce Coach to identify and discuss the issues in your particular situation.

Both spouses, your attorneys and the divorce coach attend subsequent collaborative negotiations until you reach agreement. Divorce coaches help each spouse prepare for effective participation in the negotiations.

Can a lawyer represent a client zealously if it is agreed in advance not to go to court?

By entering into a Collaborative Divorce participation agreement, lawyers and their clients have thoughtfully agreed to limit the lawyer’s role within the contractual relationship to that of providing representation for settlement purposes only. Nothing in the Canons of Ethics precludes such a limitation. In stepping out of the adversarial process, the Collaborative Divorce lawyer does not give up the role of advocate for his or her client. None of a lawyer’s duties or obligations to a client are affected by this limitation.

Can a party quit during the process?

Nothing in the participation agreement precludes a party from terminating the Collaborative Divorce process and pursuing litigation. However, the client will have been advised at the outset that doing so will require them to hire other counsel. Of course, the other side also will be trading their Collaborative Divorce lawyer for a litigator.

How does a lawyer’s assessment of the likely outcome of the client’s case were it to be litigated affect the way the lawyer approaches a Collaborative Divorce case?

While the participation agreement prohibits threatening litigation, the lawyer’s advice to his or her client as to the strengths and merits of his or her claim will always include an assessment of the likely outcome if the case had to be litigated. Consideration of the law and one’s legal rights is always appropriate in analyzing what a fair and appropriate outcome in a collaborative process might be Along with this assessment, of course, will be consideration of all of the costs and risks of litigation.

Why must a lawyer resign if the other side decides to go to court?

The requirement that all lawyers be disqualified in the event of a breakdown guarantees that all participating counsel will be totally and exclusively motivated to make the process succeed. Thus, all participants are equally and fully invested in finding the solutions to all problems. More subtly, it is believed that the way people participate in negotiation, and especially the way lawyers participate, is affected by the certainty that that lawyer will never litigate the case. Openness, candor, and cooperation replace guardedness, secrecy, and threats as the techniques most likely to achieve ultimate success. Walking out in anger, or provoking the other side to do so, ceases to be a viable tactic.

How is a lawyer’s relationship with a client different in the Collaborative Divorce process, and how do lawyers prepare clients for it?

First, the lawyer never ceases to be the client’s advocate and the client is so assured. By entering into the participation agreement, the client has already decided and declared the intent to neither threaten nor pursue litigation (an entitlement, however, which the client never waives). Now the objective is to discern and attempt to satisfy the interests of all parties. To that end, all parties and counsel must cooperate. Counsel will encourage their clients to speak candidly about their own needs and desires, and to listen carefully to those expressed by others.Collaborative Divorce lawyers remind and reassure their clients that by treating the other side’s interests with respect, they are serving their client’s goals and interests. Collaborative Divorce lawyers are trained in collaborative communication skills and will assist the parties in this endeavor. Divorce Coaches provide training in communication skills for each client.

Can one lawyer practice Collaborative Divorce if the other side has not signed a participation agreement?

No. It is assumed that the parties will proceed on a Collaborative Divorce basis only when all lawyers and clients have signed the participation agreement. While it may be a useful strategy for one party to approach another through their Collaborative Divorce lawyer with an offer to proceed collaboratively a clear intent to seek resolution through non-adversarial means, members of the Hudson Valley Divorce and Dispute Resolution Association will not proceed with the collaborative divorce process unless the second spouse agrees to come on board fully.

How do you deal with case management deadlines?

It is anticipated that most Collaborative Divorce cases will be resolved prior to, and without, any court filings. However, for cases that have already been filed at the time the participation agreement is signed, it is possible to obtain an extension of time in the litigation to allow the Collaborative Divorce process to be utilized.

How do you deal with Statutes of Limitation?

There are very few divorce cases in which a statute of limitations is an issue. However, in Collaborative Divorce cases counsel and parties will cooperate with each other fully to prevent the necessity of any court filings while the collaborative case proceeds. This may involve agreements to toll the Statute of Limitations, if necessary. The participation agreement provides for some limited court filings, as agreed upon and necessary to protect the parties interests, while the Collaborative Divorce case is in progress.

How does the practice of Collaborative Divorce affect attorney fees?

Representation and fee agreements between attorney and client are not directly affected by the Collaborative Divorce process. However, the cost of the divorce process is an issue dealt with jointly at the beginning of the process.

What can Collaborative Divorce lawyers do if negotiations reach an impasse?

Professionals participating in the Hudson Valley Collaborative Divorce and Dispute Resolution Association have developed specific strategies for avoiding and dealing with impasse. If initial efforts are unsuccessful they have agreed to act as mentors for each other to assist in reviewing problem cases or situations. Additionally, Collaborative Divorce participants can agree to employ experts to advise both sides as to disputed facts or law. Finally, Collaborative Divorce team members and parties can hire an arbitrator, a mediator or consultant at any time.

Is the Collaborative Divorce lawyer required to divulge even non-discoverable information during the Collaborative Divorce process?

Unless otherwise agreed, by signing the participation agreement, the Collaborative Divorce lawyer and his/her client agree to provide good faith responses to any good faith questions or requests for information by the other party. In this context, a good faith question or request for information is one that is reasonably calculated to assist in assessing the merits and/or value of a party’s claim or to otherwise further the process of reaching a settlement of all issues. Since this approach uses a standard for disclosure that is different from that used in traditional discovery, a Collaborative Divorce lawyer could potentially be obligated to divulge some information that he/she might have avoided disclosing in a traditional discovery context.

If information is requested in good faith but is otherwise protected from disclosure by a privilege, must a Collaborative Divorce lawyer disclose it?

The informal good faith question/good faith response approach is not intended to require any party to disclose privileged information. Certainly a party is free to do so.

Is a collaborative lawyer required to disclose information that the other side has not requested, but which may be important to the case?

Yes. The informal good faith question / good faith response approach is intended to require any party to disclose information that may be relevant to the settlement of the case. However, if the client has not and refuses to authorize their attorney to reveal anything, the lawyer may not reveal it to the other side. If the lawyer believes that such refusal to disclose violates the good faith requirements of the participation agreement, then the lawyer will be required to withdraw from the case. In the Collaborative Divorce process, the goal is to provide the parties with the information needed to resolve their dispute.

What happens if a party doesn’t fulfill its disclosure obligation under the participation agreement?

Participation in the Collaborative Divorce process is based on the requirement that the parties to the participation agreement (both attorneys and clients) have acted in good faith and have provided accurate information as required under the good faith question/good faith response approach. Thus, a party’s refusal to fulfill its disclosure obligation under the participation agreement will make it impossible for the parties to reach a fair resolution. When an attorney learns that his/her client has withheld or misrepresented information that should have been disclosed, the participation agreement requires the Collaborative Divorce lawyer to withdraw.

What if, sometime after entering into a settlement as a result of a Collaborative Divorce process, a Collaborative Divorce lawyer discovers that the other party failed to disclose information that should have been disclosed?

In this respect, a settlement agreement reached via a Collaborative Divorce process is no different from any other negotiated settlement agreement, and the former is no more or less susceptible to being annulled for such a reason than the latter. To address this concern, the participation agreement states that, in any settlement agreement reached during the Collaborative Divorce process, the attorneys and the parties may wish to recite the material facts upon which the settlement is based.

Will my lawyer tell me to give up on the Collaborative Divorce process, if appropriate?

Yes. A lawyer, in zealously representing a client in the Collaborative Divorce process, is obligated to tell their client if they believe a fair and satisfactory agreement cannot be achieved through the process, or if they believe that the information, which is being provided, is an insufficient and unreliable basis upon which to make an agreement. Before terminating the process, these problems will ordinarily be discussed by each attorney with their own client, and by both parties and their attorneys, in an effort to obtain full cooperation from both parties in the process.

What if the settlement is not achieved cooperatively?

In the event the parties are unable to arrive at a settlement through the Collaborative Divorce process, the lawyers review the parties’ alternatives with them, including limiting unresolved issues, hiring an arbitrator, or proceeding to court. If the case goes to court, the collaborative professionals will withdraw from the case and the parties will be free to retain trial attorneys to pursue their matter in court. The result is that the parties will have had the best representation for each phase of the proceeding, and, therefore, possibly save time in a subsequent, costlier trial. The Collaborative Divorce lawyers will assist in an orderly transition to trial counsel to insure the least duplication of effort that is possible.

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What is a Pre-Nuptial Agreement?

How can a Pre-Nuptial Agreement benefit me?