Recent Blog Posts

Awards of Counsel Fee Pendente Lite Given More Weight

Adam J. Peretz, Esq. — Sat, 18 Jun 2011 19:17:00 GMT

Effective October 2010, the Domestic Relations Law was amended to create a "rebuttable presumption" that counsel fees shall be awarded to the non-monied spouse in divorce actions. The Appellate Division Second Department took this legal presumption a step further - arguably a large and emphatic step.

In its February 8, 2011 decision, Witter v. Daire, the Second Department reversed a trial court in Westchester County, which had awarded $10,000.00 in interim counsel fees and granted the non-monied spouses entire request - $125,000.00.

The long standing theory regarding interim counsel fee awards in divorce actions has been that the non-monied spouse should not be disadvantaged in the litigation because he or she cannot afford the same legal representation as the financially superior spouse. There should be a "level playing field" in the litigation, and neither spouse should be able to use financial disparity to prevail legally.

However, those of us who have litigated divorce cases, and those of you who have been litigants in divorces, have experienced, "for better or worse", that the trial courts often did not level the playing field after an interim counsel fee decision.

Far too often matrimonial court's awarded paltry sums - perhaps $5,000.00 or $10,000.00 - in the face of a real and significant need for counsel fees. Or even worse, referred the decision to the trial, thus not awarding anything perhaps until trial, when it is already too late. The resulting decisions often did little or nothing to level the playing field and often set the tone for an imbalanced litigation where the monied spouse wore down the non-monied spouse.

The Appellate Division has sent a message to the matrimonial judges - take the legal presumption of awarding interim counsel fees seriously and in doing so, carefully examine the facts and proofs presented in the pendente lite counsel fee applications and make timely and fair awards.

Nassau County Judge Says There Is No Defense to "No Fault" Divorce

Adam J. Peretz, Esq. — Tue, 26 Apr 2011 20:42:00 GMT

A recent New York Law Journal article, published on April 7, 2011, reports that a Nassau County Supreme Court matrimonial judge (Anthony J. Falanga) decided in a case before him that "a spouses 'self-serving declaration about his or her state of mind' is enough to dissolve a marriage under New York's recently enacted no-fault law".

In other words, under the new portion of Domestic Relations Law Section 170(7), one spouse can declare under oath that the marriage has irretrievable broken and the other spouse does not have any defense to such an affirmative statement.

Judge Falanga stated that the New York State Legislature intended such a result when it enacted the new law, which became effective in October 2010.

"Staying married, against the wishes of the other adult who states under oath that the marriage is irretrievably broker, is not a vested right, Justice Falanga wrote.

There, the no-fault divorce law was intended to have no challenge.

However, there is an upstate New York matrimonial judge who set down for a jury trial the "no-fault" ground (DRL Sec. 170(7)) for divorce. (See our previous blog entry).

So, we presently have two New York State matrimonial trial judges disagreeing on whether the no-fault law allows a challenge to the ground of the irretrievable breakdown of the marriage for more than six months before the filing of the action for divorce.

Mediation in Matrimonial Cases in Nassau County Supreme Court

Adam Peretz, Esq. — Fri, 01 Apr 2011 19:59:00 GMT

Spouses going through a divorce action in Nassau County Supreme Court may be required to attend mediation.

As of March 2011, a program started by Hon. Robert Ross, Supervising Judge of the Nassau County Matrimonial Court, may refer parties to mediation if their case is deemed suitable for mediation by the assigned judge.

At least part of the motivation for court mediation is the limited judicial resources (see my blog entry about cutting Judicial Hearing Officers) to handle the case load in Nassau County Supreme Court.

Once an action for divorce is commenced and a judge is assigned (a Request for Judicial Intervention is filed with the court) a Preliminary Conference is scheduled. After that first court conference, the judge has the discretion to refer the parties to mediation. This is a very sensible and effective way of guiding the parties toward settlement of certain issues.

The first mediation session is free. However, if the parties decide to mediate they will pay for further sessions. So the parties will have two attorneys to pay and will pay for mediation.

However, if there has been domestic violence in the marriage the case will not be sent to court mediation.

This begs the question: If you are contemplating a divorce, live in Nassau County and you believe that mediation could be helpful, why not choose your own divorce mediator?

If you objectively look at the facts leading to your divorce and you do not see terrible conflict, your case may be slated for mediation.

I firmly believe that the vast majority of spouses could mediate their divorce, even when they believe they cannot communicate with their spouse.

"Nesting" Is a Creative Custody Arrangement

Adam J. Peretz — Thu, 31 Mar 2011 19:31:00 GMT

If you are contemplating a divorce or a custody litigation, or you are in the midst of such a family conflict, but you believe that you and your significant other can work together to find a resolution, nesting could be a creative alternative to one or both of you having to relocate with your children.

Nesting is a term that refers to the amicable resolution of a residential custody dispute where the child, or children, remain in their home and the parents alternate living in the home as dictated by the parenting schedule. When one parent is with the children, the other parent lives elsewhere and when it is the other parent's time with the children, that parent returns to the home for his/her time. Typically, there is one "primary" custodial parent for purposes of residential custody and child support. However, the actual schedule for the children's parents depends on the parent's agreement.

I have a couple of mediation clients who are contemplating nesting arrangements because they believe this will maintain some continuity and stability for the children. I have also witnessed successful nesting arrangements. I believe the parent's willingness to abandon the mindset that "the house is mine" "the house is yours" is essential so there is less difficulty with sharing the house. This requires the ability to think outside of the box in the best interests of the children.

Nesting is certainly not appropriate for everyone, but it presents an amicable and creative alternative to the more traditional residential custody arrangements.

How Do You Select a Divorce Lawyer?

Adam Peretz, Esq. — Wed, 30 Mar 2011 20:50:00 GMT

The thought of getting a divorce probably elicits quite a visceral response - fear, anger, sadness, anxiety - to name a few. Whether you are the spouse who initiates the divorce process or if your spouse has informed you that they want a divorce, the process is terribly stressful and emotionally taxing on you, your spouse and your children.

You want to find a divorce lawyer who will be able - and willing - to empathize with your emotional state, who will listen, and who will take the time to explain. The divorce process can take many months - the more acrimonious divorces will take

years.

You certainly want an experienced and well regarded divorce lawyer who will capably represent you and who is a strong and ethical advocate. It is important to investigate the divorce lawyer before you schedule an appointment. Many lawyers have websites these days and there are also online resources through which you can check a lawyer's legal standing and experience.

However, you cannot forget that lawyers are people too and just like you, they have personalities, preferences, characters and life experiences that shape them as people. It is crucial to find a divorce lawyer who you believe you can work with. The divorce process is time consuming, expensive and emotionally taxing. You want to find a divorce lawyer who you are comfortable talking to and with whom you can trust. If during an initial meeting you find the conversation pressured and uncomfortable, perhaps this is not someone you can work with.

Remember, selecting a divorce lawyer is a business relationship - you are retaining an attorney to perform a service - and you want to choose a divorce lawyer who is experienced, knowledgeable and savvy. But you also want to select someone with whom you can relate.

Selecting a divorce lawyer is not easy. Many divorce lawyers offer a free consultation, (as I do) some do not. As a divorce lawyer, I believe this is a way to sit together, begin to build a rapport, and generally understand the individual's circumstances. For you, this is an opportunity to learn about the divorce lawyer, to interview them, to assess their values and their character.

Make a list of questions - beyond the lawyer's experience, their fees, the nature of their legal practice - that will elicit responses about who the divorce lawyer is, what values they hold dear, and what belief systems they have. You cannot forget that divorce lawyers see life through their own lenses, just as you do.

There are many experienced and talented divorce lawyers out there.

You have to ask yourself if you can work with this person.

Another Reason to Mediate Your Divorce

Adam Peretz, Esq. — Mon, 28 Mar 2011 20:12:00 GMT

As a result of the financial crisis in New York State, as of April 1, 2011, there no longer will be funding for Judicial Hearing Officers (JHO's) to assist the judges in handling litigated divorces in the matrimonial parts of the New York Supreme Courts.

JHO's were talented and insightful judges in their own right. The loss of JHO's will profoundly effect how divorce cases are handled in the New York State court system.

This is yet another reason to think about mediation as a sensible alternative to litigating your divorce.

Putting your marital issues - custody of the children, child support, division of the marital assets, and spousal support - in the hands of a judge is already a daunting task. There is the emotional cost of opening up your lives to attorneys and to the court; there is the financial cost of both spouses paying a separate attorney to battle in court; and there is the time cost - missing work, not being as accessible to your children, missing out on your social life and hobbies - of the actual burden of litigating in court for many months and often years.

Now, the elimination of JHO's, who were an integral part of keeping divorce cases moving in the court system for almost thirty years, will certainly effect time and efficiency in the matrimonial parts of the courts. There will be an increased burden on the judges and court personnel to handle the cases once managed by the JHO's, and an increase in time that litigants will spend in court before their divorces are settled or go to trial.

Mediation keeps you in control of your divorce issues and ultimately the outcome of your divorce. Now with the unfortunate loss of JHO's, your divorce will almost certainly take longer, cost more financially and emotionally, and will likely effect the efficiency of the court and the judge presiding over your divorce.

New York State Judicial Hearing Officers

Adam Peretz, Esq. — Mon, 28 Mar 2011 19:53:00 GMT

Another casualty of the financial crisis in New York State is the elimination, or at least the suspension, of the use of Judicial Hearing Officers in divorce cases in the New York State Supreme Court. As of April 1, 2011(the beginning of the New York State fiscal year) there will no longer be funds budgeted for Judicial Hearing Officers to preside over divorce actions.

Judicial Hearing Officers (JHO's) have provided an essential service to parties litigating their divorces, and to the judges and the court systems throughout New York State inundated with the high volume of divorces. The JHO's have provided an invaluable service to the court system and to the litigant's embroiled in litigating divorces by keeping the matrimonial cases moving by lessening the load on the presiding judges in the Supreme Courts in the counties of New York.

The volume of divorce cases has become so great that cases often linger on the court calendars, not necessarily at the fault of the litigants, or of the court itself, but simply by virtue of the enormous traffic in the matrimonial courts system.

The loss of JHO's to budget cuts is likely to sacrifice efficiency and increase the time it takes to litigate divorces in New York State.

Does Edith Bunker Have A Ground for Divorce?

Adam Peretz — Tue, 08 Feb 2011 21:21:00 GMT

If you are contemplating getting divorced in New York, you are probably aware of the new law regarding proving grounds for divorce. The ground of the "irretrievable breakdown of the marriage", for more than six months prior to the filing of the divorce action, was added as the seventh ground under the law. As written, the law appears to require only that one party state under oath the existence of this irretrievable breakdown.

Many have called this amendment to Domestic Relations Law Section 170 "no fault divorce".

However, an article appeared in the New York Law Journal on Friday, February 4, 2011reporting that an upstate New York judge scheduled a trial to decide if grounds exist - under the amended law - if the marriage is 'irretrievably' broken. As written, the law requires the spouse to state the irretrievable breakdown. If there is 'no fault", how is there to be a trial?

Will the spouse have to offer factual specifics of the breakdown? How the marriage is irretrievably broken? When this breakdown became irretrievable?

Does the defendant get to challenge the facts as presented by the plaintiff?

If so, would Edith Bunker get a divorce in New York?

Edith and Archie have a long term marriage - at least over 25 years.

How old is Gloria?

So, is it harder to prove an irretrievable breakdown in a long term marriage, as in cruel and inhuman treatment?

Archie is no pleasure cruise - "Edith, stifle yourself!" "You Dingbat!"

"Get me a beer, will yaaa, huuuh!?"

Archie yells and screams at Edith, constantly bossing and belittling.

Archie yells and screams at Gloria in front of Edith (not to mention at Gloria's "meathead" husband Mike).

But Archie is faithful; he is a provider; he doesn't hit Edith. (I am not condoning Archie)

The point: could Edith prove an irretrievable breakdown after all those years and all that she endures. Could Edith point to a time when the marriage became irretrievably broken? Hey, they sing and play the piano at least once a week together. They even have the Jefferson's over now and again.

Could Edith prove to the court that she and Archie should no longer be married under the new law?

Should she have to?

One thing is for sure, a New York judge will give her temporary spousal support and counsel fees while she tries.

Is No Fault Divorce in New York Really No Fault?

Adam Peretz — Sun, 06 Feb 2011 16:20:00 GMT

If you have been contemplating getting divorced in New York, you are probably aware that a new law took effect on October 15, 2010, which has been deemed "No Fault".

Specifically, the new law added an additional ground for divorce to Domestic Relations Law Section 170, which requires that the parties' marriage has irretrievably broken for more than six months before the action for divorce was filed in court. The law requires one of the spouses to state this fact.

Many legal scholars have deemed this no fault and there have been numerous commentaries on the internet, some against and some in favor of the new 'no fault' law. Experience matrimonial attorneys and legal experts have stated that the law no longer requires any proof of fault other than this breakdown of the marriage for the requisite time period before the action for divorce was commenced.

However, an article appears on the front page of the New York Law Journal on Friday, February 4, 2011, that briefly outlines the possible muddying of the waters of no fault divorce in New York. An upstate New York Judge has scheduled a trial (before a jury) on the grounds for divorce - the irretrievable breakdown of the marriage. If this law permits a divorce without any fault, then why is there a trial scheduled to determine if the marriage is indeed irretrievably broken?

Perhaps the party seeking divorce will have to offer some testimony in court showing how the marriage is broken, when the marriage broke, and why the marriage is broken irretrievably.

People in New York contemplating a divorce, those currently embroiled in a divorce in which they have claimed the irretrievable breakdown as their ground for divorce, and matrimonial attorneys and legal scholars will be watching this case in upstate New York in the near future.

I will keep you posted.

Welcome to our New York Family & Mediation Blog

Peretz, PC — Mon, 30 Nov 2009 19:38:00 GMT

Our attorneys are pleased to announce the launch of our family law blog with an RSS feed available at http://www.nyfamilylawyermediator.com/Family-Law-Blog/Entire-Blog-Feed/RSS.xml.