According to Statistica, the divorce rate in New York in 2018 was 2.8 divorces per thousand inhabitants in the State of New York.  Was that number lower or higher than you expected? Based on public records and other data, the divorce rate is at the third lowest rate it has been since 1990.  Fewer people in New York are getting divorced right now.

But for couples that have exhausted efforts to reconcile, a low divorce rate doesn’t really mean much does it? Because you are preparing to start or participate in a divorce, and what other people do does not matter.  Right now, its about you and your children, and your future.  And you are going to need some legal help.

What is Divorce Mediation?

There is no mystery behind the reason why some divorces can be so contentious. We are talking about deep emotional impact here.  It hurts to end a relationship.  It is scary when you think about the process of separation and what that is going to look like, from your pension to your debt, custody, and child support, down to who gets the dog and leather sofas.

At Weisman Law Group, we are trained divorce litigators, helping our clients navigate the difficult process of a convention divorce in court.  However, over the years of our legal practice in family law, many times we ran into couples that were not contentious at all.  In fact, they did not need to be in a court of law either.  They were capable of “settling out of court” through a process called divorce mediation.

Working with an Attorney mediator, the partners can proceed through the steps of divorce by negotiating terms that are favorable.  The mediator works as an advocate for both partners, helps determine conditions or assets that are not disputed (and easily divisible).  Then proceeds to aspects of the divorce agreement where the partners are not in agreeance, and where constructive negotiations begin.

A mediation that is successful ends in a non-contentious divorce for the couple. The divorce is filed, custodial and non-custodial terms are set, and the financials are determined and processed (including division of assets).  Without ever stepping foot in a court room.

Our team at Weisman Law Group would like to share the top five (5) reasons why couples are now choosing divorce mediation instead of litigation.

1. Mediation Can Reduce Legal Costs Compared to Litigation

Initiating a divorce is not the expensive part.  The process is fairly straight forward when both parties agree.  It is the litigation in a contentious divorce, where couples cannot compromise or meet common ground for important decisions, that litigation becomes costly.

Once the matter has gone to court, the divorcing partners will not only incur legal fees from their private divorce attorneys, but also court fees, document and evidence administration fees, courier fees for agreement reviews and more. 

With divorce mediation, all administrative processes are handled within our office at Weisman Law Group. We do recommend that couples try remediation first, before proceeding with a conventional divorce in family court. It can save you time, frustration, and expense.

If the divorcing couple is unable to reach an agreement with the assistance of a divorce mediator, the process will be moved up to Family Court.  And it is not how long your divorce might take in court that is concerning; it’s how long it can take for a Family Court case to be heard, when there are a backlog of cases  for the court to review.

2. It Can Reduce Emotional Damage and Create a Better Relationship Between Divorcing Partners

We know from clinical research and also through friends from divorced families, that dissolution of a marriage when there are children involved is tragic, if the divorce becomes a hostile battle, instead of a negotiation between two adults to want to start a new chapter in their lives.

No one intends to harm their children.  And most couples think they can navigate divorce without becoming hostile or allowing the child or children to see the upsetting instances of arguments and fights.

Divorce mediation is less adversarial. When both partners work together to find a fast and mutually acceptable agreement, then can move on and into the new chapter of the life faster and with less discord.  This is helpful when it comes to families who will be sharing custody as it creates a more amicable and cooperative split.

3. Divorce Mediation is a Much Faster Process

How fast is fast? That of course, depends on the couple.  But in many cases divorce mediation can be as fast as 3-4 sessions.  Some married partners have already formalized most of the negotiation on paper before they retain a divorce mediator, in which case, there will be little to work out before filing for legal divorce.

However, other couples who really cannot agree on certain items, will need a mediator to bring each issue or item to the table for consideration, discussion and decision making.  The more issues there are, the longer the mediation can take.  But overall, it is much faster. 

The average conventional divorce in the State of New York requires a period of at least six months of irreparable separation before the divorce can be filed.   A mediation divorce can be done in about 3-8 sessions on average. Without having to go to court at all. And in special circumstances, the mediation can be scheduled for evenings or weekends to avoid disruption during the business day for the clients.

4. It Creates Less Distress and Instances of Trauma for Children 

As a parent, we know that children hear everything.  Even the things you try so hard to shelter them from, if you are a couple engaged in a contentious separation and divorce, the hostility has a negative impact on your child or children.

Some couples think that living in a separate residence during the divorce is a good idea.  If the situation is volatile, it can help to reduce the amount of toxicity and stress in the home environment for children.  However, separate residences may not stop the aggression.  It has the same impact whether the child witnesses it or overhears daily aggressive conversations.

Taking a collaborative and compromising approach to divorce, bypasses the exposure to the kind of toxicity and psychological trauma that can have a lifelong impact on children.  In very cooperative instances, the child or children may even be involved as part of the mediation process. To feel confident that they are also part of the process for defining the new structure of the family.

5. Compromise in Mediation Means Everyone Wins

No partner should feel like they emerged at a disadvantage, after a divorce agreement is signed and filed. When you enter into divorce mediation with one of our Attorneys at Weisman Law Group, you have the benefit of more than our legal services.  You have guidance and advice from a divorce lawyer with experience in some of the more difficult psychological and relationship aspects of getting a divorce.

Many of the conflicts that appear between divorcing couples can be ironed out with the help an experienced divorce mediator.  Some couples arrive with a thought out and detailed draft divorce agreement and want a legal professional to review it.  Others attend divorce mediation because they do not know where they need to start, but they know they do not want to fight.
​
And that is a good start for a peaceful, non-contentious divorce that could help both partners get on the road to healing and recovery. Divorce mediation is kinder to your spouse, kinder to yourself and to your savings account.

Schedule your free divorce consultation with us.  Weisman Law Group serves Nassau County, and surrounding areas of New York.

When you have been married for a long time, you usually fall into shared spending habits.  Whether that means a monthly budget and savings schedule, or how much money you spend collectively on entertainment, vacations, and other essentials.

No one knows you like your spouse does.  And that is probably why contentious divorces can become so aggravated between partners. It is literally a war to dissolve a union, with some significant emotional ‘sucker punches’ thrown in to hurt each other in the process. 

Game playing that sometimes takes a nasty turn, jeopardizing the financial health of both partners. A game where really, nobody wins in the end.

Dissipation During Divorce: When Self-Indulgent Spending Crosses the Line

This is a common problem and difficulty we help our divorce clients face.  As the divorce begins to progress, one spouse may start spending irresponsibly and abnormally.  Like I mentioned, you already know the normal spending habits of your spouse.  But suddenly, they begin to spend a lot more money than usual, on things that they never spent money on before.

From a human nature perspective, facing a divorce also means getting ready to be single again. It’s a transitioning phase from marriage to living a single life again; with or without children.  Acknowledging that you are going to be single in the near future means you may want to update your wardrobe a little, take a class, or go to some counseling sessions to help you work through emotions of separation and divorce.  That type of spending should be anticipated; it is very normal during a divorce.

But what if those patterns of spending suddenly become very abnormal? What if it’s not a new suit or an expensive new bag, but several of them?  What if your spouse begins taking their friends on trips, or buys larger ticket items such as a new car, while leveraging shared credits and equity in the home?

Suddenly, your spouse has crossed a line.  A very large and expensive one that threatens your own financial security and that of your children.  Can your spouse be held accountable for dissipation spending during a divorce? How do New York family law courts, Supreme Court in New York, view dissipation spending , and where does the responsibility lie; with one or both spouses?

Scenario One: The Spouse Who Earns More Money Is Spending Recklessly

One case comes to mind where the couple knew they were going to file for divorce. It was something that the couple had discussed (and argued about) many times.  They were preparing to head to divorce mediation to amicably split, and then the spending started to happen.

Her husband had never used credit cards.  He loathed them, and if he had to use one, he paid off the balance right away.  He had a previous personal bankruptcy and was afraid of making the same mistake twice.  Suddenly, the husband was charging everything on shared credit cards.

Gas for his vehicle, new clothing, new furniture, an expensive club membership and eating out at some of the restaurants he previously thought were too expensive.  If half the debt was going to be his wife’s responsibility, and if he felt that he was responsible for the greater part of accumulating assets and equity, it’s a malicious act to whittle down asset value before it is equitably divided by the court.

Scenario Two:  The Spouse Who Earns Less Money Is Spending Irresponsibly

Spouses who have a large gap in education, career development and earning potential may face this problem.  No one likes to think about being tight for money after a divorce. It is definitely an adjustment from dual to single income life.  This thought (and perhaps some horror stories of destitute former spouses) is enough to send a divorcing spouse into spending overdrive.

You would think that the spouse who earns less money doesn’t spend or purchase things on a large scale and certainly not out of malice. Such spending can be an expression of anxiety.  They may start purchasing things they will need in their new residence, such as dishes, linens, furnishings and even food.  Sometimes they will even hide the purchased goods at a parent or friend’s house. 

Divorce can inspire a very deep fear trigger that nudges people to survival like behaviors that are not otherwise considered normal.  And things really go bad when the credit card statement arrives.  

Scenario Three: A Spouse is Increasing Debt While You Suspect They Are Hoarding Cash

The credit card statements are showing something new; cash advances from your shared accounts.  While trying your best to avoid each other, sometimes things can get expensive.  But withdrawing frequent sums of money via cash advance from a credit card is a significant warning flag that you need to pay attention to.

This tactic doesn’t involve spending money (not right now anyway).  It can be about hoarding cash outside of the house and underneath the radar of financial disclosure during divorce proceedings.  The result? Increased debt that you may have to split evenly, while your former spouse unpacks an extra stash of cash right after the divorce is settled and filed.

Scenario Four: A Spouse Is Hoping Increased Debt Will Dissuade Divorce Proceedings

This specific game plan during a divorce can be waged by either gender. The most common scenario involves the more monied spouse, the primary wage earner, that engages in overspending, with a strategy in mind.

If the marital assets are significant enough that the divorcing partner will have a sustainable income and equity, increasing debt would no doubt complicate life for the spouse exiting the marriage.  For instance, if the partners own a home with significant equity, the assailing spouse may expect that increasing the household debt will result in less monetary benefit from the sale of the home.

Afterall, debt shared by spouses must be discharged during a divorce (or split equitably). If that equity disappears because of increased debt, will the spouse stay?  Will they change their mind about divorce? It’s unlikely, but they may seek legal guidance about dissipation of assets in the State of New York. 

What Does New York State Law Say About Dissipation of Pre-Divorce Assets?

New York State Courts view dissipation of marital assets as a deliberate act of malice, designed to fraudulently reduce the monetary value of assets, and the amount of compensation that the other spouse will receive.  But there is no formal measure or definition of criteria for “wasteful spending” in dissipation cases; it is up to the Judge to decide.

Some very obvious and clear examples of dissipation can include:

• Shopping excessively or purchasing higher than normal expensive items
• Gambling (in excess of normal habits or behaviors)
• Selling any property for a lower than market value in an effort to liquidate the asset with the lowest possible monetary return
• Spending on an extramarital affair

When spending is intentionally disruptive or damaging to the other spouse, the Court may hold the accused spouse financially responsible for dissipation.  What that means is that the Court may allow a list or petition of a cumulative financial award in favor of the victim spouse, accounting for cash withdraws, asset sale and other compensation.

Dissipation is not the answer.  Even when you are feeling anger toward your spouse, it is a fraudulent act that can land the offending spouse deeper into financial problems, after an adjustment by the court.

If you suspect your spouse is engaging in dissipation of assets or monetary funds while you are preparing for legal divorce, contact our team at Weisman Law Firm for a free 30-minute legal consultation. 

When you have been unsuccessful in negotiating an amicable divorce, or through divorce mediation, the next step is to take it to court.  The consequences of divorce hearings will impact everything from child custody, to visitation rights, alimony, and the distribution of hard assets (property, furnishings etc.) and liquid assets, investments, and retirement funds.
To say that it is a high-stakes legal undertaking would be an understatement.  Typically, the couples who have the most assets (including shared businesses) find themselves in divorce court.  We would like to share 7 effective ways to prepare for your divorce disposition, to help you understand what to expect and how to remain composed as you are deposed.

1. Protect Your Right to Attorney Client Privilege

The recommendations and legal advice by your divorce lawyer are confidential and protected by attorney/client privilege.  The legal protection is one of the oldest pieces of jurisprudence, dating back to the years of the Roman Empire.  Essentially, your lawyer cannot be forced to testify against you or to provide any information that would damage the case and legal results for a client.

However, not many people know that the client can waive that protection.  Why would you want to? To be clear you would never want to waive it, but it is easy to do that with a simple sentence that begins with “On the advice of my lawyer…” which may waive the privilege.  One of the top priorities of the opposing side, is to break that protection.  The legal advice from your lawyer is confidential, until you offer to disclose it, so refrain from making those statements and sharing that information in court or a t a deposition.

2. Learn to Control Your Body Language and Facial Expressions

When your spouse or his or her lawyer are providing information and discussing the personal history of your financial relationship, they may say things that you know are very biased.  It is hard to listen to half-facts at a deposition and not have a reaction when it is human nature to have the “that’s not right!” or “he’s not telling the truth” expression on your face.

Practicing a flat-effect or a neutral facial expression is important.  Sometimes body language and facial expressions can be misinterpreted by the Judge in court (and to your disadvantage) or by opposing counsel during a deposition. Train yourself to accept that your spouse and his / her legal case is going to be biased.  Listen carefully to the question.  Make notes about inaccuracies (for your legal team) and avoid glaring across the aisle.

3. Provide All Information to Your Divorce Attorney

Some things about your marriage, or your business history, purchasing behaviors, assets and behavior may be unflattering to you.  If it happened between you and your spouse, disclose it to your divorce lawyer, and let the attorney decide if it is relevant to your divorce proceedings. 

Even a small detail overlooked can be an advantage to the opposing side.  Your divorce lawyer cannot prepare for that approach from your spouse and his/her legal team if the information is not shared with your attorney.  Remember, your divorce lawyer is on your side, and they will not judge or criticize you.  Make sure you disclose every detail (even if you think it is not important) to your attorney, so that there are no ‘surprises’ in court.

4. Practice Your Presentation to Build Confidence for Questioning

Few things are as intimidating as sitting aside the bench of a judge and being questioned. Second to that is being questioned at a deposition during your divorce.   Depending on the contention level of the divorce proceedings, it can feel more like an aggressive interrogation, rather than information gathering.  And the opposing legal team has a strategy to try to get you to respond in a way that discredits you, and your divorce claims.

At Weisman Law Group in New York, we help our clients prepare for questioning.  However, we also recommend that our clients practice questioning with a family member or friend.  It will help you build confidence for the questions you will face at a deposition or in court, and help you stay calm and composed during the proceedings.

Practice your presentation style in front of a mirror as well. Some people adopt a negative or aggressive facial expression when they are stressed or feeling upset.  Learn how to maintain your best poker face in court.

5. Focus Your Testimony on the Judge (Not the Opposing Attorney)

You are sitting aside the bench for questioning during a trial or in a conference room for your deposition; your estranged spouse is sitting in front of you, opposite you, with his or her lawyer. The intention of the opposing side is to rattle you, to get you to say something that will damage your case and divorce claim.  And they can pull some pretty tough and personal punches and say things that are difficult to hear.  Some of them true.  Some of them conjecture from your spouse.

The whole time you are in court, your testimony but also your affect (body language, communication tone and style) are being observed by the judge, as he or she builds a character profile for you. Are you being honest? Are you the kind of person that is emotionally volatile?   An outburst when you are on the bench is one of the best outcomes the other side can hope for.  Because it implies that you may be hiding something, and it creates doubt about your testimony in the eyes of the Judge.

When you are giving your testimony, do not deliver it while making eye contact with your spouse.  Your spouse does not have a direct impact on the decision of the Court.  It is the Judge that you need to convince, so address your responses respectfully to the Judge in a calm manner.

Do not roll your eyes, or sigh or express your frustration when testimony is being provided by your spouse.  Simply make notes about inaccuracies that you can review with your lawyer during proceedings.

6. Never Bring New Information or Notes to the Deposition

If you find new evidence like emails from your spouse, text messages, credit card statements and other information that supports your case, provide them to your lawyer at least two weeks before your court or deposition date. 

You may experience some surprises in the testimony of your estranged spouse, but your divorce lawyer should never be caught off guard by testimony that was not reviewed with her.  Some types of important evidence could be barred from divorce proceedings, if not described in pretrial statement, which is typically filed at least one week before your trial in court.

7. Treat All Participants and the Judge With Respect

It can get really personal in divorce court.  Very personal. And the last thing you want to do is lose your temper toward your former spouse, their lawyer or the Judge presiding over your hearing.  Remember to stay calm and treat everyone involved with respect and courtesy. It will reflect well at the hearing and can support positive results for your case.

With over forty years of combined divorce litigation and family law experience, Weisman Law Group, P.C. provides comprehensive legal support and strategies for our clients.  

When you are facing a contested divorce or distribution of assets, get a legal team that will fight to advocate for your rights and stand with you to present your best case in court.
We understand what it takes to prepare you for your deposition in divorce court.

Contact our attorneys at Weisman Law Group for a free legal consultation. 

Entering into a prenuptial or post-nuptial agreement is one of the best ways that couples can protect assets and ownership of businesses, investments and other property that predates the marriage. It is important for every couple to sit down and discuss the practicality of a prenuptial agreement, especially those that are remarrying, have substantial assets and/or anticipate a family inheritance or is a beneficiary of a trust.

If there is a big gap or difference between the couple’s income, then there is be a legitimate concern about spousal support.  Once you get married, as the higher income earner or spouse with more assets, it will be your responsibility to be responsible for the financial well being of your spouse. The responsibility can have significant implications on your wealth and financial future if your assets are not protected in a prenuptial agreement.

Can I Have a ‘No Alimony’ Clause in My New York Prenup?

A couple may sign a prenuptial agreement that states that neither party will be obligated to pay the other alimony, spousal support, maintenance in the event of a divorce or dissolution of the marriage.  This is a common practice where one spouse has a greater amount of wealth, assets, and property than the other spouse and does not wish to be taken advantage. 

No one anticipates that their spouse is marrying them for “their money.’  This, however, sometimes is a factor and individuals can be emotionally and financially defrauded in those circumstances. Particularly if they married without an iron clad, valid prenuptial agreement in place.

An agreement between spouses or prospective spouses are closely scrutinized, and may be set aside if one party can show that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to that party because of overreaching on the part of the other spouse.

A court may deem a Prenup unconscionable if it is one that no person in his or her right mind would enter into on the one hand, and no honest and fair person would accept on the other. That the inequality between the parties is so strong and clear that it shocks the conscience and amazes the judgment of any person with common sense. So even if you enter into a Prenup that states both parties will waive spousal support in the event of a dissolution or divorce, that portion of the prenup may be found to be invalid and unenforceable if it would result in the risk of one party becoming a public charge.

Even if the Prenup was valid at the time it was executed, even if he prenup may not have been unconscionable when the parties entered into it, it still may have become unconscionable at the time an action for divorce starts or when a  final judgment of divorce would be entered.

What If My Partner Will Not Sign a Prenup Agreement?

As an experienced legal team who has assisted hundreds of clients in divorce proceedings, we can share some practical advice about having a productive conversation regarding a prenuptial agreement in New York.  Your spouse may have some misconceptions about what the prenuptial agreement entails, and the legal protections that it can provide them with.

A prenuptial agreement is like a seat belt in a car.  You wear it, and you may never actually need it.  But if a collision happens, you will be glad you were wearing one.  Marriages are the same way.  Many couples who have executed and signed legal prenuptial agreements are hopeful that they will never exercise the conditions of the prenup in that they will have a happy marriage. 

A prenup will detail what happens if the marriage dissolves, or even in the event of the death of one party while still married, such as:
​

• The distribution of assets purchased and debts incurred during marriage, or in the event that one spouse dies.   This includes allocation of life insurance benefits and annuities.

• A list of assets that predate the matrimonial relationship.  For instance, if you owned property or stocks before your marriage, they can be protected from being equitably distributed or ‘split up’ as common assets during a divorce proceeding.  Note that the principal investments are protected, but earnings or profits that increased on investments during the course of the marriage may be considered shared assets unless specifically deemed separate assets in the prenup.
• The ability for each spouse to buy, rent or lease, transfer or control property that is held separately by the spouse or what is considered shared assets.
• Business ownership or the right to manage a family owned business. For instance, if each spouse contributed funds to start the business, and one spouse contributed a higher amount of capital, that spouse may be entitled to a greater share of the proceeds of sale, if the business is liquidated during divorce proceedings.  A prenuptial can also designate ownership of the business, or the first-right to purchase the business interest of the other partner.
• The right to alimony or support.  This is particularly important in marriages where one spouse may work and the other may have no income, or a significantly lower income.
• Responsibility for student loans.

The listed items are the basics that are generally covered in a prenuptial agreement. However, the couple can add other items that provide protection and legal direction regarding issues of personal importance.  Those items can include limiting asset distribution depending on a minimum length or term of marriage, sentimental property or objects and intellectual property.

What can you do if your future spouse refuses to sign a prenuptial agreement?  It is up to you to use your discretion and consider the financial risks you may be taking, to marry your partner without one. Talk to a professional and experienced matrimonial attorney about how to keep your separate property separate so that a divorce will not force you to share premarital assets.

What If My Partner and I Grew and Built a Business Together?
Intellectual property is another important aspect that can be included in a New York prenuptial agreement.  If you and your spouse are entrepreneurs, proof of concept and the growth of the business can result in a long legal battle, without a premarital or post-nuptial agreement that defines ownership.

Did your spouse help you run the business? Did they help you come up with the idea and provide funds to launch the business?  These are questions that will help determine equitable division of property and assets, including a business owned by married partners.
Creating a prenuptial agreement is a cost-effective way to protect your assets, as you are preparing to start a new chapter in life with your partner. 

Contact our legal team at Weisman Law Group and schedule a free consultation. 

Under the new Tax Cuts and Jobs Act (TCJA), alimony payments that were previously tax deductible will no longer be for all post-2018 divorce agreements.

Despite the change in federal law, some states will allow alimony payments to be deductible for state income taxes. In New York, alimony payments are still deductible from New York State and City taxable income, even if a divorce agreement came after 2018. 

If you are currently going through a divorce where spousal support is at issue, keep in mind the new tax law as you go through the process. The new policy will apply to alimony payments that are required under divorce or separation instruments that are: (1) executed after December 31, 2018 or (2) modified after that date. In other words, if you modify your agreement after December 31, 2018, the payment may no longer be deductible to you and may not be considered income to the recipient. If you are planning on modifying your agreement, make sure that you provide for your position in any changes that you are making.

For those of you who were able to have your divorce agreements signed prior to December 31, 2018, treatment of your alimony payments will remain status quo. If you signed your divorce agreement prior to December 31, 2018, here are 9 requirements that need to be fulfilled for alimony payments to be deductible:

​NEW YORK, April 3, 2019 -- Weisman Law Group P.C. announced today that Jean Williams Mercurio joined the Firm as a Senior Attorney and Tracy Golden joined the Firm as Attorney.
 
“I am extremely pleased to welcome Jean and Tracy to the practice,” said founding partner Rachel J.B. Weisman. “Their addition to the team will help us further strengthen our offerings to our clients and continue to expand our practice.”

Ms. Williams Mercurio earned her J.D. from Catholic University of America, Columbus School of Law in 1990 and her B.A. from the University of Scranton in 1987.
 
Ms. Golden focuses her practice on matrimonial and family law matters. Prior to joining the Firm, she managed public relations for a large, global law firm based in New York City. After graduating law school, she served as a special counsel at the New York State Moreland Commission. She also interned at the Queen’s County District Attorney’s Office in the Domestic Violence Unit and at Waterfront Commission of New York Harbor.
 
Ms. Golden earned her J.D. from New York Law School in 2013 and her B.A. from The New School in 2005.
 
The Firm represents clients on complex and challenging cases in matrimonial and commercial litigation as well as estate matters. Care is taken to keep clients' best interests as the focus of the case. The Firm’s areas of practice include divorce, family law, child custody, child support, pre-nuptial agreements, post-nuptial agreements, maintenance / spousal support, equitable distribution, appeals, estate law and commercial litigation.

​When couples agree to divorce mediation, a neutral third party is chosen to meet with both sides to guide the parties to a resolution. Some couples decide on their own that they want to mediate while a judge can also order mediation. In rare cases, the divorcing spouses will want their attorneys with them in the meeting with the mediator, but in most cases, the couples will meet without individual attorneys. In addition to it being more cost effective to meet without the attorneys, if and when an agreement is drawn up, each party may take it to their respective attorneys to review.

Both parties have to agree on who the divorce mediator will be. It is best to retain/hire a mediator that is an attorney who practices matrimonial and family law and is familiar with the then-current laws pertaining to the issues at hand. and one who is certified, having taken at least the 40-hour course for certification.

Once a mediator is chosen, the time and location are selected for the initial session. During the session, both parties have an opportunity to present their side. The mediator listens to both sides but does not make decisions. The mediator is there simply to guide the spouses to a resolution. During the process, the divorcing spouses can determine:

When the parties agree to a resolution, they must enter into a written and notarized agreement that is then filed with the court along with uncontested divorced papers.

Litigation is more contentious. Both parties retain separate legal counsel; a Summons with Notice or Verified Complaint, etc., is filed and served on the defendant, and then an Answer is served and filed. The parties then go into the discovery process — demands for financial documents are served and responded to, motions may be made to the court for relief in the interim, while the case is going on, a request that the court become involved in the matter may be filed, a Judge is assigned and then appearances are mandated by the court for the parties and their attorneys. Each appearance may cost thousands of dollars and may result in a simple scheduling order, a temporary order regarding custody or support, or an order appointing experts in forensics in accounting or in connection with mental health issues.

During the litigation process, the parties and the attorneys prepare a case to present before a judge. This may be to determine support, who gets what asset and who will have primary or legal custody of any minor children of the marriage. The attorneys may seek evidence against the other spouse that may include:

​Gathering evidence is a lengthy process that can take even longer if one of the spouses demands psychological assessments of their former spouse, requiring a full accounting of assets or other evidence to back up their case. A court date is also dependent on the judge’s calendar and in some smaller New York counties, it can take months/years.

After a trail, the judge will take some time to make his or her decision. The judge’s decision is final unless one of the parties files an appeal.

For the most part, divorce mediation is the better choice. The parties have to be willing to at the very least negotiate through a 3rd neutral and independent person and they have to be willing to compromise, but it is less stressful and less costly. If each party, or even if one of the parties, is unwilling to negotiate or compromise and is set on having everything their way, that may make divorce mediation impossible. If one spouse refuses to settle without a court hearing, or the couple has a large amount of assets and cannot agree on their distribution, divorce litigation and a court battle is the only way to go. If the parties want to spend less money on attorneys and have their case handled quicker, then mediation is the right choice. In short, divorce mediation gives you these benefits:

If you are going through a divorce, or thinking that you may need to, soon, you don’t have to do it alone. Contact Weisman Law Group and discuss your best options. Weisman Law Group has extensive experience with both divorce mediation and divorce litigation and we highly recommend that you read more about what we have to offer. If you think you are ready to learn more by speaking with an attorney, do not hesitate to contact us.

​​After sixteen years of marriage with Mike, and devoting herself to caring for their household, Christine knew their marriage was over. Her conclusion was logical and rational but she had two children, ages 12 and 9, to consider. Where would the children live after divorce? Would she have to deal with Mike? Could Mike get custody of the children? How would she pay for the children’s expenses? Would Mike have the final say about the children since he paid for a majority of their expenses? Christine heard many conflicting answers from her friends. She was worried sick and could not sleep at night.

Divorce is never easy, especially when there are children involved. When parents cannot mutually agree upon their children’s best interests, Courts must determine issues, such as:
 

• Child Custody: Where the children will live after the divorce?
• Joint Custody or Visitation: How much time will each parent spend with the children and where?
• Child Support: How will the children’s educational, medical, and psychological needs be met?

​Divorcing spouses, who once avoided communication with each other, are forced to work together to maintain a sense of stability for their children.  Ideally, parents should join together in making these decisions; however, in the real world, it often becomes a tug-of-war between two divorcing parents. Competent and caring legal representation becomes crucial in order to protect a parent’s rights. A competent family law attorney analyzes the law and the facts in order to provide the Court adequate information so that the Court can make correct decisions in the best interests of the children.

One of the most important and far-reaching decisions a Court makes is regarding child custody. There are two types of child custody decisions that Courts must make:

1. Residential custody
2. Legal custody

​Residential custody concerns where the children will live. Generally, one parent is designated as the custodial parent, and the other parent is provided parenting time with the children. If the parents live in close proximity and are able to work with one another, shared residential custody is also an option. This involves having the children alternate between two homes, and attend school and/or camp from these two homes.

Legal custody involves decision-making for the children. While the presiding court may deem one parent the custodial parent, and the other non-custodial, it may also state that both parents have authority over decisions pertaining to the children’s educational, medical and/or psychological needs. The court will determine that both parents have the legal right to receive information from schools and treatment providers, and work together when making decisions. This is called joint (legal) custody.

​Courts choose between a variety of custodial arrangements, depending upon the needs of the children, and the parents’ abilities to meet those needs. Since courts take an individualized approach to determining child custody, based upon each family’s unique circumstances, the possibilities are endless.

​Once the court renders a judgement regarding custody, it must be followed by both parents. If life circumstances change, a parent can petition for a modification based upon a “substantial change in circumstances.” A recent court decision held that a father’s change in work location from Suffolk County to the Bronx constituted a substantial change in circumstance by which to modify custody because it caused him to be out of the house for extended hours, leaving the children in the care of a babysitter. Bodre v. Stimaitz, 150 AD 3d 1228 (2nd Dept., 2017). The Courts can also consider things like, a change in parents’ availability for the children, serious family conflict, or the children’s stated preference to reside with the other parent.

​​If you are a parent who needs assistance in voicing your needs and rights to the Court with regard to custody, or seeking to modify a custodial arrangement that currently exists, you need a competent and knowledgeable Family Law Attorney. Rachel Weisman has over twenty-seven (27) years of experience representing clients throughout the New York metropolitan area. Ms. Weisman will evaluate the circumstances of your case, and be your advocate and guide. She is assertive, compassionate and personable, and is well regarded in the legal community. You can trust Ms. Weisman to give your family the care and attention that they deserve, because you and your child should receive nothing less.

​In today’s world of “blended” and multi-generational families, one of the most difficult issues facing Courts and families is child custody, or with whom a child(ren) should live. Courts have traditionally seen the parent/child relationship as paramount, and have only disrupted this relationship under “extraordinary circumstances,” such as when the parent has been physically or sexually abusive, has been severely and persistently neglectful, and/or has serious mental, physical, or substance abuse issues. Courts viewed third parties, such as grandparents, as “secondary” sources of child custody, and have given them the opportunity to parent only when the child’s biological parents were deemed unable or unfit for custody of the child. However, courts are beginning to recognize the realities of many families where grandparents are invaluable figures. Rather than dismissing grandparents as secondary figures when it comes to child custody, courts are looking to the best interests of the child.

​Courts weigh several factors when they determine whether a particular living situation is in a child’s best interest. These factors include the financial and emotional stability of the proposed caretaker; whether the caretaker has drug, alcohol, mental or physical health issues; the presence of verbal, physical, or sexual abuse in the household; whether the proposed caretaker has significantly interfered with the parenting rights of the other parent; where the child’s siblings live; and the Court’s observation of the parties’ overall conduct. Courts may appoint an attorney for the child, who voices the child’s preference regarding with whom she or he wants to live. Courts may give more weight to the wishes of older children who can articulate a desire to live with someone other than their biological parents, as long as those wishes were not derived from the parent’s (mis)guidance.

A recent Queens Family Court case, Matter of Bhanmattie H. v. Roxanne H., (Judge John M. Hunt, June 19, 2017), held that the best interests of the child would be served by giving her paternal grandmother custody of the child. The biological mother had left the family home when the child was an infant, leaving her with the father and the grandmother. The parents subsequently divorced, and the father retained legal and physical custody of the child, with the biological mother having visitation rights. The biological mother rarely exercised her visitation rights while the father was alive.

The father passed away when the child was ten years old, at which time the mother demanded that the child live with her, and refused any contact between the grandmother and child. The grandmother petitioned for visitation rights after the child reported that she was unhappy and mistreated in the mother’s home, and a referee was appointed. This referee returned the child to the grandmother’s home on a temporary basis, pending the outcome of a child custody trial to determine the best interests of the child.

During the subsequent trial, the Court found the grandmother’s testimony credible and honest, while the mother appeared more concerned with receiving validation as the child’s mother, rather than a desire for the child’s happiness and stability. The Court found that, under the totality of the circumstances, and in furtherance of the child’s happiness and welfare, it was in the child’s best interests to live with the paternal grandmother, and thus granted her custody of the child. The Court noted that the grandmother had been a stable figure in the child’s life since infancy, and had bonded with her, in contrast to the mother.

​If you are a grandparent seeking child custody or even visitation rights of a child, you need a competent and knowledgeable Family Law Attorney who can demonstrate that placement with you is in that child’s bests interests. Rachel Weisman has over twenty-seven (27) years of experience representing clients throughout the New York metropolitan area. Ms. Weisman will evaluate the circumstances of your case, and be your advocate and guide through the child custody process. She is assertive, compassionate and personable, and is well regarded in the legal community. You can trust Ms. Weisman to give your family the care and attention that they deserve, because you and your grandchild should receive nothing less.