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| FREQUENTLY ASKED QUESTIONS | ||||||||
| WHAT ABOUT THE CHILDREN? When divorcing parents are hostile or unable to communicate with one another during or after divorce, their children are much more likely to suffer throughout their childhood and into adulthood. Sadness, depression, confusion, withdrawal, shame and unhappiness in relationships are but a few of the long-term negative effects that divorce can have on children. As mediators, we help parents reorganize the family in a realistic way that attempts to address everyone's needs. Through the mediation process, parents learn to cooperate and communicate effectively with each other. As a result, many divorced parents are able to successfully co-parent their children without further assistance from a mediator or a court. The children tend to be much more resilient in the face of divorce when they are not burdened by tension and hostility between their parents. IS THERE A PLAINTIFF AND A DEFENDANT IN A MEDIATED DIVORCE? Yes. In every type of divorce case, one party must be the Plaintiff (person who initiates a legal action) and one party must be the Defendant (person who defends a legal action). In litigated divorces, the Plaintiff initiates a divorce action by filing a Summons and serving a Summons with Notice or a Summons and Verified Complaint upon the Defendant. In mediated divorces, these designations usually do not come into play until all matters are resolved and it is time to file uncontested divorce papers. The titles “Plaintiff” and “Defendant” are necessary for paperwork purposes only. WHAT ARE THE GROUNDS FOR DIVORCE IN NEW YORK STATE? New York State is a “fault” state. You cannot get divorced merely because you and your spouse do not agree or cannot get along. However, legislation is pending which, if passed, would allow people in New York to divorce based on "irreconcilable differences." Currently, the legally recognized grounds for divorce in New York State, as described in Domestic Relations Law Section 170, are: DRL Section 170 (1) Cruel and Inhuman Treatment — The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to co-habit with the defendant; (All acts of cruel and inhuman treatment must take place within five years of the commencement of the action); DRL Section 170(2) Abandonment for one or more years - The abandonment of the plaintiff by the defendant for a period of more than one year. An action for divorce may be maintained where the defendant abandons the plaintiff for a period of one year or longer prior to commencing the action; Abandonment may be physical or sexual or attributable to a lockout. Physical abandonment occurs when one spouse physically departs from the marital residence without the consent of the other spouse and without any intention of returning. If that spouse remains away for a period of one year or longer prior to commencing the action, without any good reason for doing so and without the other’s consent, then abandonment occurs; Sexual abandonment is known as “constructive abandonment.” It involves one spouse's refusal to engage in sexual relations with the other spouse continuously for a period of one year or longer prior to commencing the action, and continuing to the present, without consent, good cause or justification; A lock out is another form of abandonment. A lock out occurs when one spouse continuously refuses to allow the other spouse into the marital home for more than one year prior to the commencement of the action; DRL Section 170(3) Imprisonment for three or more years — the confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant; The defendant must be in prison when the divorce action is commenced and the action must be filed no later than five years after the defendant has served three years in prison; DRL Section 170(4)-Adultery - The commission of an act of adultery…is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant; DRL Section 170(5)-Living Separate and Apart Pursuant to a Decree or Judgment of Separation - The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment; DRL Section 170(6)-Living Separate and Apart pursuant to a Written Agreement of Separation - The husband and wife have lived separate and apart pursuant to a notarized written agreement of separation, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all of the terms and conditions of such agreement; IS IT POSSIBLE TO GET A NO-FAULT DIVORCE IN NEW STATE? New York is the only state that currently requires the establishment of fault in order to get divorced. The closest thing to a no-fault divorce is “living separate and apart for one year pursuant to a separation agreement” (Domestic Relations Law Section 170(6). After a year, the parties file uncontested divorce papers and finalize their divorce. Legislation is currently pending which, if passed, would allow New York couples to divorce based upon “irreconcilable differences.” When and if this legislation passes, New York will truly be a no-fault state. DOES IT MATTER WHICH GROUND YOU CHOOSE FOR YOUR DIVORCE? No. Couples who litigate sometimes spend thousands of dollars and countless hours arguing over divorce grounds. At stake is purely a psychological victory. It makes little difference which ground is used for divorce except in cases involving domestic violence, where the grounds can affect the outcome of the case. In contested or uncontested divorce cases, once a couple is divorced, the only record of the divorce and the grounds are kept in a file in the County Clerk’s Office. No one has access to this confidential file except the couple and their attorneys. HOW MANY MEDIATION SESSIONS WILL WE NEED TO ATTEND? Depending upon the complexity of the case, couples usually attend between four and ten 2-hour mediation sessions before they reach an agreement. However, every case is different and the mediator cannot predict the number of sessions in advance, nor guarantee a result in any specific amount of time. WHAT ISSUES WILL WE DISCUSS IN DIVORCE MEDIATION? In divorce mediation, the mediator helps the parties discuss all issues related to the restructuring of the family, including, but not limited to custody ( physical and legal ) parenting plans, child support, college expenses, marital residence, health insurance, life insurance, spousal support (maintenance), property distribution, tax considerations and the division of assets and debts. HOW LONG WILL IT TAKE TO COMPLETE THE MEDIATION PROCESS AND OBTAIN A DIVORCE? On average, it takes couples between six months and one year to get divorced using the mediation process. Some couples divorce in less time while others need significantly more time to divorce. WHEN AND WHERE WILL WE MEET? We offer daytime and evening sessions Monday through Friday and have some availability on weekends. Our offices are conveniently located in White Plains, Manhattan, and Katonah. We will meet with you in the location that is most convenient for you. WHAT IF WE CANNOT AGREE? We have successfully resolved 98 percent of all mediation cases we have handled. Even in mediation cases that do not end with a full resolution, the parties generally resolve a number of issues, which brings them closer to divorce. If the parties cannot reach a mutually satisfactory agreement in mediation, they have the option of participating in the collaborative law process or pursuing their divorce in court. WHAT IF I DO NOT WANT TO USE A LAWYER? As attorney-mediators, we will inform a divorcing couple of general matrimonial law, but will not give either party legal advice or make recommendations as we always drive to maintain our neutrality. It is unwise to get divorced without obtaining independent legal advice and understanding your legal rights. We strongly recommend that each person who participates in mediation obtain their own lawyer to consult with at various stages in the process and especially before signing a separation agreement. The separation agreement is a binding, legally enforceable contract, which, one signed, is incorporated but not merged into the judgment of divorce. HOW WILL MEDIATION IMPROVE OUR COMMUNICATION? As mediators, we assist the parties to communicate in a productive and respectful manner. Most couples leave mediation with the skills necessary to communicate effectively even after they are divorced. The children of parents who participate in mediation are less likely to suffer from ongoing exposure to parental conflict. WHAT IS A PARENTING PLAN? A parenting plan details all aspects of post-divorce parenting, including but not limited to:
HOW DOES THE CHILD SUPPORT STANDARDS ACT (CSSA) AFFECT US? Based on their combined income, parents must pay the following percentage of their after-tax income for basic child support:
This money is for food, clothing and shelter for the children. Currently the parental income used to determine child support is capped at $80,000, unless otherwise agreed to by the parents or determined by a judge. Commencing January 31, 2010, the combined parental income used to calculate child support will be capped at $130,000. The amount of the cap will increase every two years based on the average annual percentage changes in the consumer price index for urban consumers (CPI-U) published by the United States Department of Labor. Child support is calculated by determining the combined parental income and multiplying it by the percentage indicated in the chart above based on the number of children the parents have. For example, if the mother earns $50,000 per year and the father earns $100,000 per year, then the combined parental income is $150,000. Since these parents have two children, child support would be calculated by multiplying $130,000 (the cap) by 25 percent (.25), which equals $32,500 in child support per year. That amount of child support is then allocated between the parents according to their respective shares of the total income. The mother earns one third of the total income so she is responsible for paying one third of the child support ($10,833 per year divided by 12 = $902.78 per month.) The father, who earns twice as much as the mother, or two thirds of the total income, must pay $21,667 per year divided by 12= $1,806 per month in child support. The percentage of child support paid may change upon agreement of the parties. Deviations from the Child Support Standards Act are possible as long as the reasons for the deviations are clearly stated and acceptable to the judge who signs the judgment of divorce. In addition to basic child support, parents must pay “add-ons” (i.e. expenses for camp, extra-curricular, religious activities, medical expenses and the like).Generally (but not always) the parents split the add-ons on a pro-rata (prorated according to income) basis. For example, if the father earns $150, 000 per year and the mother earns $50,000, the mother will pay ¼ or 25% of the add-ons and the father will pay ¾ or 75% of the add-ons. WHAT IS MARITAL PROPERTY? Marital property is defined as all property and income that either spouse acquired or earned during the marriage irrespective of who earned it or whose name the title of the property is in. There are certain exceptions including but not limited to inheritances, personal injury awards and lottery winnings as long as they are not placed in a joint bank account. Assets such as real estate, bank and brokerage accounts, retirement accounts, and businesses acquired during the marriage are all considered to be marital property. Other assets considered marital property are the value of degrees and licenses earned during the marriage, which may have increased one’s earnings or earning potential. WHAT DOES EQUITABLE DISTRIBUTION MEAN? Equitable distribution refers to the fair distribution of marital property. It must be distributed equitably, but this does not always mean equally. There are a number of factors that are considered when marital property is being divided in an attempt to reach an agreement: Equitable Distribution Factors (DRL 236(B) (5) (d)) In determining an equitable distribution of property … the court shall consider:
IF WE CAN’T COMMUNICATE, CAN WE MEDIATE? Yes. Mediation is a voluntary process. Although people agree to participate, communication during mediation is not always easy. As mediators, we are trained to facilitate communication between the parties. We have successfully mediated many tense and “difficult” cases. IS A RETAINER REQUIRED FOR MEDIATION? No. The mediator does not require a retainer, but charges an hourly rate payable after each session. CAN WE SERVE AS CONSULTING ATTORNEYS? Yes. In cases where we are not the mediators, we can be hired as consulting attorneys to meet with individuals who are divorcing, inform them of their legal rights, recommend a specific course of action, and review separation agreements. |
The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.