New York Collaborative Divorce Lawyer
Divorces are always stressful and frustrating events. But things don’t have to be made worse than they already are. Far too many divorces end up in the court system, where they are adjudicated by a disinterested judge and where all decisions are effectively final. Placing one’s future and that of one’s children in the hands of a judge, who may have dozens of other cases to hear that day, is a situation to be avoided, if at all possible. With an experienced and talented collaborative lawyer, your divorce proceedings can be largely kept out of court, giving you ultimate control over the process and allowing for a more amicable resolution of the divorce, for everyone involved.
Even the most contentious divorces can often be kept out of court
Going to court presents serious risks to all parties involved in a divorce. While most judges are reasonable and level-headed people, the outcomes between cases and judges can vary wildly. On any given court date, a dependent spouse may receive generous spousal support, given over 10 years, or they may receive none at all. Likewise, the primary breadwinner may retain virtually all of the couple’s assets, or half of them, including control over the family business, may be awarded to the spouse. It may seem unlikely that a judge would give control of a business to a spouse that had no business experience. But we’ve seen precisely these types of cases. Often times, the businesses and assets that non-productive spouses are given in court proceedings quickly lose all value.
It’s easy to see that having proceedings handled by a judge imposes significant risks on both parties to the divorce. That is why it is imperative to get the right legal team on the case, as soon as possible. Even if the other party is recalcitrant or desires to take the matter to court, the overwhelming majority of the time, they can be convinced to handle resolution of the divorce through mediation. Especially for the primary breadwinner, collaborative resolutions to divorce are highly preferable to taking rolling the dice in court.
Faster resolutions, less stress
A nasty divorce can be truly one of the nastiest things that anyone will ever go through. Judges in most cities have dockets that are filled to the brim. A divorce being handled in court can literally take years to resolve. In that time, the stress levels and animosity associated with a contentious divorce will find reasons to be constantly renewed, making everyone involved worse off.
However, a collaborative solution can end the divorce proceedings extremely quickly. Many divorces that are handled through mediation only take a week or less to come to a full resolution. And mediation often leads to all parties feeling far more satisfied with the process. After all, the immediate goal in any divorce, just in any other form of legal negotiation, is to come to an agreement that both parties feel satisfies their needs. With collaborative mediation, this outcome is often realized.
But it’s imperative to get the right legal team on your side, as quickly as possible. Our lawyers have decades of experience and hundreds of successful mediations under our belt. We have a proven track record of winning the best terms for our clients, making a bad situation a lot better than it could have been.
Can I appeal the ruling that I have to pay for his attorney?
Divorce proceedings represent some of the most emotionally contentious and legally complicated legal matters in the U.S. judicial system, according to the American Bar Association. If you are in the midst of divorce proceedings, you likely find yourself facing new and different questions as the case proceeds. For example, you may wonder whether you can appeal the ruling that requires you to pay attorney fees.
Overview of an Order to Pay Attorney Fees in a Divorce Case
There are a number of more common situations in which you might end up with a court order requiring you to pay attorney fees incurred by your spouse during divorce proceedings. The circumstances surrounding an order regarding the payment of the other party’s attorney fees has a direct bearing on issues associated with appealing such a decree.
One way in which you might become responsible for paying the other party’s attorney fees is if you agreed to do so at some point in the divorce proceedings. This might become an issue if the amount of attorney fees reached a level you did not anticipate when you initially made the agreement to pay your spouse’s attorney fees.
Another reason why there might be an order to pay attorney fees if something occurred in the case that resulted in the court electing to sanction you in some manner. A fairly common practice of a court is a divorce case is to award attorney fees in a situation in which you did something that ran afoul of an existing decision of the court. For example, if you failed to comply with an existing temporary order regarding your children, and your spouse had to enforce the existing order, the court may require you to pay the attorney fees expended by the other party in this situation.
Finally, the court may order the payment of some or all of your spouse’s attorney fees if there is some sort of financial balance the judge feels must be rectified in the final decree in the case. This can result in the court including a provision in the final divorce decree requiring you to pay some or all of the other party’s attorney fees.
Motion to Reconsider Attorney Fee Order
Although technically not an appeal from a decision of the court regarding attorney fees, in your divorce case you have the ability to file what is known as a motion to reconsider when it comes to decisions of the court. In other words, if the court issues an order you do not agree with regarding attorney fees, you can ask the court to reconsider its decision. In some cases the court will schedule a hearing when a motion to reconsider is filed. In other instances, the court will only consider what is set forth in your motion and in the response to your spouse.
Formal Appeal of Attorney Fee Order
At the conclusion of your divorce case, you have the right to appeal the final decree in some situations. The appeal is made to an appellate court. Including in the appeal can be a request for the appellate court to reconsider the lower court’s decision to require you to pay attorney fees.
You need to understand that there exists a very specific time frame in which an appeal from the final decree in a divorce case, including a request for the appeals court to look at an award of attorney fees. If you fail to meet the deadline, you likely will forever be barred from appealing the lower court’s decision regarding attorney fees in your case.
Legal Representation in Your Appeal Case
If you do decide to appeal the court’s decision regarding attorney fees in your divorce case, you need to consider seriously retaining the services of an attorney skilled in appellate cases. Not all divorce attorneys have experience with appeals. A lawyer typically will schedule a no-fee initial consultation to discuss your situation.
Will I Have to Appear in Court at Any Time During My Divorce?
When it comes to divorce, it’s best if you try to avoid heading to court. A judge will have to handle your differences if you can’t settle them between you. There are times when you will have to appear in divorce court, but most of the time, it can be handled privately without court proceedings.
Feuding Spouses
There are many options for divorce that don’t involve stepping foot in a courtroom. You and your spouse can consider hiring a lawyer but take part in mediation, or seek a collaborative divorce.
A third-party will help the divorcing couple split the assets in an amicable way without arguments. The mediator keeps it fair since he or she doesn’t have a stake in the outcome of the process. The mediator is a trained person who has handled hundreds of cases prior to yours.
A collaborative divorce has more people involved from lawyers for both sides, a financial counselor and a mental health professional. In collaborative divorces, the couple has to agree to handle the divorce in a way that is gentler on the entire family.
Divorces can be extremely contentious. Spouses can become angry and mean. This complicates the process and makes it difficult to resolve without heading to court.
Court-Ordered Details
When a couple is in the process of divorcing, there are details that are hammered out by the lawyers for both sides. They include who will end up with the house, who will receive the cash and visitation for the children involved. They can include child support payments too.
When one of the parties violates the terms laid out in the agreement, the ex-wife or ex-husband can take them to court. While the custodial parent and the court can’t force the other to participate in visitation, the non-custodial parent can’t visit or take the child whenever he or she wants.
Divorce can be complicated when there are children involved. Things have to be fair for the children since they matter most in the proceedings, so when one parent violates the terms of the divorce order, the other parent can take them to court.
Change in Circumstances
There are times when a parent loses their job and needs to modify the court order. They may need to raise or lower child support or move due to work obligations. This has an impact on the order, so it will have to be modified.
If one parent wants to move out of state for work, the other parent might want to fight that move. Both parents expect to have access to their child and spend time with them.
In the case of alimony payments, the person receiving the payments might be violating the order in some way, which allows the order to be amended.
There are a variety of situations and scenarios that would require evidence and motions to be heard by a judge in a courtroom.
It’s easier to mediate the divorce in a setting that allows both sides to have an equal split of the assets as well as equal access to time with the children. If the couple can’t reach an agreement, a judge will have to step in to make those decisions for them. If you need help, speak to one of our NYC divorce lawyers today.
Is it a good idea for us to use the same lawyer?
It’s hard to believe – but not all divorcing couples hate each other. Some, can, and do, work peacefully towards drawing up an agreement without ever going to court. They want to save money – and will use one attorney to answer their questions, and to draw up all the necessary documents. Depending on where you live, you can both use the same lawyer in a divorce. In some states, it’s allowed, while others it’s not. Even in states where it’s allowed – the rules of most bar associations prohibit it, due to conflict of interests. When you file for divorce, you and your spouse are considered opposing parties in a lawsuit. It’s unethical for one lawyer to represent both parties. An attorney cannot advocate for both sides at the same time.
Even when it’s allowed, it’s not a good idea. During the divorce, there are going to be points of contention. At those points, you’ll want an attorney on your side – advocating on your behalf. With just one attorney, it’ll be difficult. Fortunately, if you’re looking to save money and agree on most things, you can hire an independent paralegal to help you negotiate the various agreements, and file them in court.
Even if you don’t agree with your spouse, you don’t have to go to court. Many couples go to divorce mediators, who help them work out their differences. Many are often attorneys. In divorce mediation, the mediators can work with both parties, due to the fact they are neutral. They are there to give legal information, and don’t take sides. Their role is to help both parties identify key elements – which could help further negotiations and a potential agreement. Once the agreement is created, a mediator will recommend each party hire an attorney for the purpose of reviewing the agreement – before it’s signed.
The job of a mediator
- Help spouses understand the law, from an informational point of view
- Help spouses fill out forms, and exchange disclosures and information
- Help spouses identify their main contention points in the divorce
- Help spouses come to an agreement on their differences
- Help spouses draft settlement agreements
Everything discussed during mediation is confidential, so a mediator cannot be forced to testify in court. Mediators cannot take sides, or provide legal advice. If you and your spouse are on good terms, hiring a mediator can help save immense fees.
Can you ask your spouse’s divorce attorney in NYC for advice?
Your spouse’s attorney can’t give you any legal advice, and isn’t watching out for your interests. They are obligated to protect their client’s own best interests – not yours.
What You Need To Know About Divorce and the Role of a Divorce Attorney in Divorce Process
Most cases of divorce are preceded by long, tiring, and stressful events. Even as people search for divorce attorneys to handle the legal part of the divorce process, they also need a person they can confide in and get solace from. That explains why a good divorce lawyer is one who takes time to understand a client’s past, who is not quick to judge, and who believes in the brightness of a client’s future. Spodek Law Group, for example, is one law firm that boasts of some of the best divorce lawyers in New York. The lawyers walk you through the murky divorce process and carry part of the heavy burden on your behalf.
Divorce as an Area of Legal Practice and What It Pertains
When it comes to divorce legal proceedings, many factors come into play depending on the type of divorce at hand. Some divorces are contested, others are not. Some divorce proceedings, on the other hand, have a question of child custody or even child support involved. Before the legal part of the divorce commences, the involved parties are required to come out clear to have their case classified accordingly. Below are the scenarios that are involved in divorce litigations:
(i) Same-Sex Divorces
With the legalization of gay marriages and the subsequent enactment of the Marriage Equality Act, cases of same-sex divorces have become more regular. Today, family and divorce lawyers have seen their area of practice expand to accommodate the new changes. They handle out of court settlements that arise from same-sex prenuptial agreements and in more serious cases, lead to litigations in courts of law.
(ii) Cases Involving Children
Marriages that involve children are relatively harder to split. With children involved, a few complications kick in. They include:
- a) Child custody arrangements
- b) Relocation of minor children
- c) Child support.
In the three cases, divorce lawyers come in to advocate for the rights of children while at the same time ensuring that both parents get their rights as well. Amicable arrangements are made to ensure that the custody of the child is in line with parental laws. If the child is a minor, the custodial parent stays with the child while the noncustodial parent is given the child visitation rights. Financial stability of the child, on the other hand, is of paramount importance. Attorneys must ensure that child support payment is made in a fair manner to all parties.
(iii) Contested and Uncontested Divorces
Contested divorces are those where the couple is not able to agree on property division while the uncontested divorce is the one in which the couple amicably agree on all issues. In both cases, a divorce attorney has a role to play in ensuring that the process is fair and that no double-crossing occurs.
(iv) Modifications To Divorce Agreements
Even after a divorce case is finalized, a divorce lawyer is needed to litigate on matters of agreement modifications. This is particularly common where child support is involved and where a parent feels that payments, as ordered by the divorce court, ought to be scaled either upwards or downwards. When a person’s source of income shrinks, his or her attorney convinces the relevant authorities to reduce the amount payable and vice versa.
The Laws That Guides Divorce as an Area of Legal Practice
Divorce law falls under a more extensive legal area of practice- the Family Law. Statutes, codes, and legislative laws guide the practice of family laws. Under the law, divorce is defined as a dissolution of marriage and gives the parties involved the right to remarry afterward. Other laws include The Defense of Marriage Act and Uniting American Families Act.
Who is On the Collaborative Divorce Team?
The Collaborative Divorce team is a group of professionals, each of whom is skilled in their own area of expertise. They all work together for the benefit of the clients and the clients’ family. It is akin to a medical team in an organ transplant, for example, in which different specialists each focus on a particular aspect of the care and health needs of the patient.
The members of a Collaborative Divorce team include:
- A Collaborative Divorce lawyer for each spouse
- One or more financial professionals
- A Divorce coach
- A Child specialist
Whereas traditional divorce often entails a crossfire of demands and accusations, the Collaborative approach to divorce works on the basis of mutual cooperation and problem solving.
Typical characteristics of the Collaborative approach to divorce include:
- The team looks to understand what is important to each client and the family as a whole.
- The team offers targeted legal, mental health and financial support as needed.
- The team can brainstorm and suspend judgment.
- The members of the team refrain from negativity.
- The common focus is on problem solving and exploring options. This allows for creativity.
- Ultimatums, roadblocks, barriers and negative criticism are not allowed.
- The common goal is to support the parties in their goal of reaching settlement.
Bear in mind that you as the divorcing spouses are an integral part of the team. The Collaborative approach to divorce benefits them in that spouses exchange helplessness and lack of control for knowledge and empowerment. The common goal of each member of the team is to help reduce the stress of the unknown.
Benefits of Collaborative Divorce
Achieving a settlement that best meets the specific needs of both parties and their children in a divorce without the underlying threat of litigation is definitely possible.
Despite the best intentions, many marriages come to an end and spouses go their separate ways. There are different paths toward divorce. The Collaborative route offers couples a respectful, dignified approach that preserves rather than destroys.
According to nycollaborativeprofessionals.org, studies show that on top of significantly lowering the expenses incurred by divorcing couples, the Collaborative Divorce process helps protect assets for the family when funds are required to newly establish two households. Most importantly, when it is executed as agreed upon by divorcing individuals and their attorneys, a collaborative settlement can be reached much quicker than other forms of negotiation, thereby greatly reducing the emotional trauma families experience during a divorce. This is especially good for the children involved.
As a marriage comes to an end, Collaborative Divorce sets a new direction for the future of the family.
Can we rescind a legal separation and file for a divorce instead?
Yes, you may rescind a legal separation and opt for a divorce instead. This can only be done if the final judgment for legal separation has not been made. If it has, then you will have to formally convert the legal separation into a divorce.
The process of turning a legal separation into a dissolution of marriage involves new paperwork that should be signed by both parties. After some time, however, the legal separation can turn into a divorce automatically.
The same form used to file for legal separation is the same one used for divorce in some States. In this case, an amendment is made to the original Petition for Legal Separation by filing a Second Petition. This is called the Amended Petition. There is no charge for this process, but your spouse has to respond to the amendment. In other cases, the Petition for Legal Separation has to be converted into a Petition for Dissolution of Marriage.
In order for a separation to turn into a divorce, the petitioner has to seek the agreement of the respondent. The petitioner is the one who is filing for legal separation into divorce.
Divorce versus Legal Separation
Divorce and legal separation are virtually the same. In a legal separation, the couple does not live together. The same is true for a trial separation. However, in a trial separation, the individuals are not legally protected against issues such as debt and alimony.
In most States, divorce and legal separation are the same. Child custody arrangements, spousal benefits, and division of property decisions are made before the formal separation is done. Couples who opt for legal separation instead of divorce do so for religious and cultural beliefs that prevent them from divorcing. However, they cannot remarry under legal separation.
Legal separation is less risky than a trial separation as you can claim assets and remove liabilities such as your spouses’ loans from your responsibility.
In some States such as California, individuals have to be residents of the State for at least 6 months before divorcing. Thus, legal separation is a temporary solution to this.
In other States, it is mandatory to legally separate before divorcing for a specified amount of time. In this case, the legal separation automatically turns into a divorce after one to two years if the couple decides to do so.
Some spouses want their partner to know that they need to change certain things or else their marriage will end. They send them a wakeup call by filing for legal separation hoping that they will change. You may also opt for a legal separation if you fear for you and your children’s safety.
What about the Terms of Separation?
In a legal separation, the terms related to custody and visitation, spousal benefits if any, and property and debt division have to be decided. A legal separation can only occur if these terms have been established.
If one or both individuals wish to convert the separation into a divorce after some time, it will be assumed that the original agreed-upon terms will remain. However if one of the individuals contests any of the terms, they may be changed. This will, however, increase the time it will take to change from a legal separation to divorce.
The State of Divorce and Legal Separation in the United States
90% of the population gets married before they are 50 years old. However, 40-50% of these marriages end in divorce. The success rate of marriages involving divorcees deteriorates with each subsequent divorce.
2014 data shows that the rate of divorce in a total of 49 states was 6.9 per 1000 people. In the year 2000, the rate was 8.2 per 1000 people showing that divorce is on the decline.
It is, however, hard to tell how many of the divorce-free marriages are happy ones.
Out of the 50-60% of marriages that do not end in divorce, many end in trial or legal separation.
Couples may decide between legal separation and divorce based on their preference, religious beliefs and other factors such as the possibility of reconciliation and safety.
Call Us