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New York Divorce Frequently Asked Questions

This list of frequently asked questions and answers on issues of separation and divorce has been developed by Divorce Headquarters in conjunction with our professional members in response to the numerous requests for information we have received from our site visitors.

The answers to the questions provided in this section are general in nature and are not intended to create an attorney-client relationship or to replace specific legal advice.


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Return How do I enforce the payment of child support?
There are a variety of ways to enforce the payment of child support. Once a support order is made, if it is not paid, the court may then take further action to enforce the order. The most common way a court collects child support payments when not voluntarily made, is through a wage garnishment order, which directs the non-custodial parent's employer to deduct the child support payment from earnings and make payment directly to the custodial parent. Another possibility is to have the support paid to a state agency called the Support Collection Unit or Child Support Enforcement Bureau, which then cashes the check and sends their own check to the custodial parent. This agency keeps records of payments received and made. If a non-custodial parent owes back child support, known as "arrears", and the child support order is payable through the agency, then the agency has the authority to intercept any tax refund the non-custodial parent is entitled to receive and have those funds paid to the custodial parent for the purpose of paying off the arrears. Should the custodial parent claim that the non-custodial parent is in violation of the child support order, and the court finds that the violation was willful, and then the non-custodial parent can be held in contempt of court, with potential consequences being a money judgment in favor of the custodial parent or, in some cases, incarceration up to six months. Other remedies that the court or the agency can take against a parent who does not pay support includes the suspension of professional and driver's licenses. New York's Family Court Act directs that the non-custodial parent who is found in willful violation of a child support order is responsible to pay the attorney fees for the custodial parent seeking enforcement.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return How do I get my child support modified?
An application to change or modify a child support order can be made when there is a material change in circumstances from the time the existing order was issued. If there are substantial changes in a parent's financial situation, such as a substantial increase or decrease in wages or loss of a job, a child support order can be modified. Unexpected expenses for the child such as large medical bills or a need for special education are also grounds for modifying child support. Some changes in child support can be temporary, for example, if one parent loses his or her job, the amount of child support he or she pays may decrease until a new job is found. Then child support payments may increase again based on the parent's new salary. Both parents must submit tax returns, paycheck stubs, and any other evidence of employment as well as expense statements so that, if warranted, appropriate modification of child support may be determined. Where the parties previously entered an agreement of support, the parent seeking a change or modification may have to establish certain threshold showings to be entitled to a modification. For more information contact our office today.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return How do the New York child support guidelines work?
In New York, the amount of child support a non-custodial party pays to the custodial parent, is established by way of a formula. The formula is based upon a percentage of the "combined adjusted gross income" of the parents, as the Family Court Act or Domestic Relations Law defines the term. Provisions of the Child Support statutes require application of certain percentages to the first $80,000 of combined parental income, depending upon the amount of children involved. For amounts above $80,000, the court may use its discretion. For one child, the child support obligation is 17% of the combined adjusted gross income, for two children 25%, for three children 29%, for four children 31% and no less than 35% for five or more children. Parents are also responsible for their pro-rata share of non- reimbursed medical expenses and child-care expenses. A custodial parent has the right to request that child support be deducted directly from the non-custodial parent's income or paycheck. Courts are not allowed to deviate from these guidelines except in situations when applying the guidelines would be unjust or inappropriate. Either parent has the right to seek a modification of child support, but a change of circumstances must be alleged and must be proven to grant a modification. The parties may enter their own agreement for support in conformity with the child support guidelines, or in conformity with the “opting out” provisions of the support statutes.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return May a Court attribute or impute income to a parent from non-income producing assets?
Yes, and this is wide ranging and could include anything from a license to practice medicine, a piece of artwork, or a coin collection (passive appreciation).

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return May the child support percentages be applied to the combined parental income in excess of $80,000.00?
Yes. See Court of Appeals case where, "The stated basis for an exercise of discretion to apply the formula to income over $80,000 should, in sum and substance, reflect both that the Court has carefully considered the parties' circumstances and that it has found no reason why there should be a departure from the prescribed percentage." The Court determined that as there was "no extraordinary circumstances present, application of the statutory percentage to the income above the $80,000 was justified and not an abuse of discretion."

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What are the basic child support obligation "add-ons"?
  • Mandatory award of child care expenses;
  • Discretionary award of child care expenses;
  • Mandatory award of health care expenses;
  • Discretionary award of child educational expenses--private school and college expenses (Historical Perspective).

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return When will the termination of a child support order occur?
Termination of a child support order will occur when certain requirements established by state law have been met. For example, child support will most often terminate when the child for whom support is being paid reaches the age of twenty-one. However, there are circumstances, such as prior agreement between parents, when the court might order that the child support remain in effect after the age of twenty-one to meet certain educational needs of the child. Child support will also terminate if the child becomes emancipated. Common grounds for emancipation include attaining the age of twenty-one, working full-time and becoming self-supporting, getting married, or joining the armed forces. A non-custodial parent who pays child support may be able to have the court terminate a child support order if a child abandons the parent by refusing to have a relationship with the parent despite the parent's efforts to maintain a relationship. Emancipation may be reversible, such as where a child who was formerly self-supporting is no longer self-supporting and is still under the age of twenty-one.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return Basic Child Support Obligation -- What is this?
The "basic child support obligation" is defined in Domestic Relations Law Section 240 (1-b)(b)(1) to mean "the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except an increased pursuant to subparagraphs 4, 5, 6 and 7 of such paragraph."

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return Can a Court, in the exercise of its discretion, attribute or impute income to either parent from any resources as may be available to the parent?
Yes, a Court can attribute or impute income to either parent from any resources as may be available to the parent. These may include but not be limited to:
  • non-income producing assets;
  • meals, lodging, memberships, cars or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use or which expenditures directly or indirectly confer personal economic benefits;
  • fringe benefits as part of compensation for employment;
  • money, goods or services provided by relatives and friends.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What are the child support percentages?
Once arriving at the combined parental income, the sum calculated is multiplied by the appropriate "child support percentage." The "child support percentage" is defined as:
  • 17% of the combined parental income for one child;
  • 25% of the combined parental income for two children;
  • 29% of the combined parental income for three children;
  • 31% of the combined parental income for four children;
  • no more than 35% of the combined parental income for five or more children.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What are the penalties for non-payment?
Family Court Act Section 454 "Powers of the Court on violation of a support order" provides that upon a finding that a respondent has failed to comply with any lawful order of support, the Court may:
  • Enter a money judgment;
  • Make an income deduction order for support enforcement;
  • Require the respondent to post an undertaking;
  • Make an order of sequestration;
  • Suspend the respondent's driving privileges;
  • Suspend the respondent's state professional business license;
  • Suspend the recreational license(s) of the respondent; or
  • Require the respondent, if the persons for whom respondent has failed to pay support are applicants for or recipients of public assistance, to participate in work activities as defined in title nine-B of article five of the Social Services Law.
There are additional remedies concerning attorney's fees or jail time. Also, under Family Court Act Section 458-a, if support arrears are equivalent to or greater than the amount of current support due for a period of four months, the Court may order the Department of Motor Vehicles to suspend the respondent's driving privileges. It is unknown as to whether or not there is a current procedure for this in effect. Similarly, Family Court Act Section 458-b provides for suspension of a respondent's business or professional license under similar circumstances.

In Supreme Court, similar provisions apply to suspension of a driver's license under Domestic Relations Law Section 244-b and to suspension of a business or professional license under DRL Section 244-c.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What income can a Court consider if a parent quits a job -- or can a Court impute a dollar amount income based upon a parent's former resources?
Yes, the Court can impute a dollar amount income based upon the parent's former resources. In other words, the Court can compute income as if the parent was working at the same job.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What is gross income for purposes of calculating child support?
Gross income means all income from whatever source derived, including but not limited to:
  • Compensation for services, including fees, commissions, fringe benefits and similar items;
  • Gross income derived from business;
  • Gains derived from dealings in property;
  • Interest;
  • Rents;
  • Royalties;
  • Dividends;
  • Alimony and separate maintenance payments;
  • Annuities;
  • Income from life insurance and endowment contracts;
  • Pensions;
  • Income from discharge of indebtedness;
  • Distributive share of partnership gross income;
  • Income in respect of a decedent; and
  • Income from an interest in an estate of trust.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What is the age at which child support ceases?
The age at which child support ceases is 21, although this differs in custody and visitation issues where the age of majority is 18. But, for purposes of the parental support duty, the age of majority remains at 21. A Court may in its discretion deviate from the basic child support obligation if the Court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate. Factors a Court may consider in deviating from the basic child support obligation are:
  • The financial resources of the custodial and non-custodial parent and those of the child;
  • The physical and emotional health of the child and his/her special needs an aptitudes;
  • The standard of living the child would have enjoyed had the marriage of household not been dissolved;
  • The tax consequences of the parties; the non-monetary contributions made by the parents toward the care and well-being of the child;
  • The educational needs of either parent;
  • A determination that there exists comparative financial circumstances between the parents which reflects a wide disparity in gross income between the spouses;
  • The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support other than the child of the instant action and whose support has not been deducted from income and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support the children are less than the resources available to support the children not subject to the instant action;
  • Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation, provided that the custodial parent's expenses are substantially reduced as a result thereof;
  • And any other factors the court determines relevant in each case.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return How does grandparent visitation work in New York?
Often, grandparents are involved with caring for their grandchildren. Sometimes conflicts develop between grandparents and their children, and grandparents must seek court intervention to assert their rights to visit their grandchild. Grandparents have visitation rights in every state, although the laws vary in each state. In New York State, pursuant to Section 72 of the Domestic Relations Law, grandparents have the right to seek visitation rights, in the case of divorce, death of either of the child's parents, or "where circumstances show that conditions exist which equity would see fit to intervene."

Some of those equitable circumstances include: The nature and basis of the parent's objection to the visitation and the nature and extent of the grandparent - grandchild relationship. In all grandparental visitation matters, a two-step test is involved. One, to determine if there is standing to seek visitation, and two, if standing exists, whether it is in the best interests of the child to have visitation with the grandparents.

If you are faced with going to court on a grandparent visitation matter, it is advisable to appear with an attorney who is experienced in grandparent matters. The parents of the child may have strong objections to the visitation, and often, grandparents in the situation find that they need a strong advocate to represent them.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return How does grandparent custody work in New York?
The relationship between grandparents and their grandchildren has become increasingly complex over the past 15 years. A 1990 Time Magazine article reports that 3 million children live with their grandparents, this is an increase of 50% since 1980. Many grandparents are raising their grandchildren today in informal custody arrangements. Often grandparents find that they need or want a legal order of custody of their minor grandchildren, and they must go to court. In New York State, there are certain requirements, which must be met in order to obtain an order of legal custody. In general terms, the natural parent of the child has a superior right to raise the child over any other non-parent (including grandparents) unless extraordinary circumstances can be shown. Extraordinary circumstances are: surrender of the child, abandonment of the child, persistent neglect, unfitness of the parent, or other like circumstances. The test of extraordinary circumstances must be met before the court will move on to the next test: whether it is in the best interests of the child to be in the custody of the grandparent. Extraordinary circumstances includes situations where the parent is psychologically impaired, drug addicted, alcohol addicted, or otherwise unfit. Proving these matters often becomes a complex and difficult task. It is imperative that you have the benefit of an experienced attorney familiar with grandparental matters to assist you.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return Are there situations when divorce mediation is not recommended?
Yes. Divorce mediation is not appropriate for all couples. For example, divorce mediation is not recommended in situations involving domestic violence. It is also not appropriate when one spouse overpowers the other or refuses to participate honestly. In addition, if one spouse refuses to divulge all financial information or fails to cooperate with the mediator's guidelines, mediation is not appropriate.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Rodd, LLP     (212)867-9123  



Return By choosing mediation, do I give up any rights that I or my children may be entitled to?
Divorce mediation is an alternative to adversarial proceedings or negotiations. All issues that would normally be addressed in adversarial proceedings or negotiations(child and spousal support, parenting arrangements, division of marital assets, tax implications) are discussed by the parties. Neither party should need to relinquish any of his or her entitlements, but instead of litigating issues, you and your spouse privately work through your differences with the goal of reaching an agreement that will best serve your present and future needs.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Rodd, LLP     (212)867-9123  



Return Can I withdraw from mediation if I am unhappy with the results?
Yes. Divorce mediation is a voluntary process. This means that both you and your spouse must be willing participants. If you or your spouse are not happy with the progress of the mediation, either one of you can withdraw at any time.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Rodd, LLP     (212)867-9123  



Return How Can We Reach Agreement In Mediation?
I begin work with people by identifying all of the unresolved issues. We have a detailed checklist that we go through to identify where there is already agreement, and where we need additional information and/or discussion. Each person gets to tell me his/her side of the story, so that I can hear as much as possible about what each of you needs to move forward with your life. I give each person a pad of paper and a pen so that the other person can write down their ideas without having to interrupt the speaker.

Once all the issues are on the table, we can begin to delve deeper into different points to gain an increased understanding. When that understanding is there, problem solving begins.

Conflict is painful. Most people have a drive to resolve it. When people understand the sources of conflict, there is a huge release of creative energy which leads to terrific brainstorming sessions about how to solve the problem and end the conflict.

This answer supplied by: Rachel F. Green, Esq. of ReSolutions -- Mediation & Legal Services     (718)965-9236  



Return How does mediation address power imbalances between spouses?
Not all couples are suited for divorce mediation. For a mediation to be successful, both parties must make their voices heard. In situations where there are serious power imbalances between spouses, divorce mediation may not be appropriate. At the initial session as well as during the course of the mediation, the trained mediator together with the parties will assess the suitability of the couple for mediation. Also true is that the process itself can be an empowering one and that a spouse who at first may perceive himself or herself at a disadvantage actually develops or discovers strong bargaining skills.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Rodd, LLP     (212)867-9123  



Return How does mediation work?
Mediation is a cooperative and non-adversarial process in which one or more neutral professionals assist you in making informed and practical decisions for your separation or divorce. Trained mediators will help you work through a series of steps in an orderly fashion to create a fair and balanced agreement that is acceptable to both parties and that works for the entire family.

Mediators who are experienced in both law and the emotional issues of divorce will help guide you to identify and solve issues including; the distribution of marital property and debts, (for example, the house, retirement plans, businesses and stock, savings and checking accounts), Parenting responsibilities (child support, visitation schedules, and custody issues) and Spousal Maintenance (alimony).

This answer supplied by: Pamela J. Pollack, Esq. of New York Divorce Mediation Group, LLC     (516)749-5017  



After a discussion to understand the mediation process, the couple, with the help of the mediator, begin by discussing each spouse's concerns and interests. They gather any necessary information and determine criteria for making decisions. Step by step, the couple, having a chance to be fully heard, and to listen to each other,decides on the type of agreement they seek. The goal is to find a "win-win" result; a comprehensive settlement that is good for both spouses and their children.

This answer supplied by: Adam Berner of Law & Mediation Offices of Adam J. Berner     (212)721-7555  



Return How long does divorce mediation take?
Sessions usually last one to two hours. The number of sessions varies depending on the complexity of the issues and the needs of the parties. Successful mediations usually take from three to 10 sessions.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Rodd, LLP     (212)867-9123  



Return How long will mediation take and how much does it cost?
Generally, divorce mediation takes between 3 and 8 sessions depending upon the complexity of the issues to be resolved and the capabilities of the parties to work together towards a mutually acceptable resolution.

Fees are based upon an hourly rate. There is a separate charge for the preparation of a separation agreement and an additional charge for the preparation of the divorce papers.

This answer supplied by: Pamela J. Pollack, Esq. of New York Divorce Mediation Group, LLC     (516)749-5017  



Return If we cannot communicate with each other, how will we be able to communicate through the divorce mediation process?
The divorce mediator is specifically trained to help couples with communication problems.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Rodd, LLP     (212)867-9123  



Return If we can't communicate can we mediate?
Yes. This is exactly the place for a mediator. Through mediation, parties are encouraged to avoid past patterns and "getting stuck" in what went wrong in the past. Instead parties focus on what they want in the future, for themselves and their children. Qualified mediators help couples shift into new and productive way of communicating and problem solving, even while they are working towards their divorce.

This answer supplied by: Adam Berner of Law & Mediation Offices of Adam J. Berner     (212)721-7555  



Return Is a separate attorney for each party necessary?
Yes. At the beginning of the mediation process, each party is advised to hire independent counsel to advise and consult with throughout the mediation process. The number of hours each party's attorney spends as a consultant is usually significantly less than would have been spent during adversarial negotiations or court proceedings. At the end of the mediation, if the parties have settled on the terms for a separation agreement, the attorney mediator drafts the agreement. Each party then has his or her attorney review the agreement.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Rodd, LLP     (212)867-9123  



Return Is mediation legally binding?
Yes. Once all of the outstanding issues are resolved and a tentative agreement has been reached, that understanding will be memorialized into to a formal, written agreement. Once the parties sign that agreement, it will not only be binding as a legal contract, but it will generally be accepted by the Courts should they later wish to finalize a divorce.

This answer supplied by: Adam Berner of Law & Mediation Offices of Adam J. Berner     (212)721-7555  



Return My wife has owned a lucrative business with her siblings during our marriage. I know I'm entitled to a portion of the business. She gets hostile when I bring it up-she doesn't want a stranger looking at the books. Can we talk about this in mediation?
This is the kind of problem that may make your case inappropriate for mediation. Mediation requires full disclosure and honest sharing of information. Most of the couples with whom I work have owned joint assets for many years, and feel confident that they know what the other has. If there is a suspicion that one person is hiding assets, you may need to hire a lawyer. The adversarial process is better at finding hidden assets, and a lawyer will help you to force your wife to reveal (at least to you) the value of her business.

Of course, in mediation, the information about your wife's family business will remain confidential. If she realizes that the alternative is litigation, which could render the valuation information public, she may agree to hire an accountant to value her business interest so that a fair division will be done upon your divorce, and the information can remain confidential.

This answer supplied by: Rachel F. Green, Esq. of ReSolutions -- Mediation & Legal Services     (718)965-9236  



Return What are the benefits of divorce mediation?
  • It is much less costly than a traditional divorce. Mediation is generally charged on an hourly basis with no up-front retainer fees, paid a the conclusion of each session. Individual situations vary, but mediation can often be completed in six to twelve sessions, with a traditional divorce can go on for years. Both parties usually share the cost of the mediation, which is far less costly than paying tow separate attorneys to represent each spouse in the court room.
  • It is empowering. Mediation empowers individuals to solve the problems which affect their lives. Sutides have shown that couples who mediate are better able to cooperate in the future.
  • It is mutual. In mediation, both parties agree on all solutions or there is on agreement. In a litigated divorce, the agreement is imposed by a judge in court. Couples who mediate have been show to be more satisfied with their divorce and therefore more likely to fulfill the terms of their agreement.
  • It serves the best intrusts of the children. The children of couples in mediated divorces are typically exposed to less tension and conflict in the home than children whose parents are in a litigated divorce.
  • It provides WIN-WIN solutions. Mediating couples are encouraged to find win-win solutions, rather than solutions in which one party wins and the other loses. With win-win results each participant and the entire family come out winning.

This answer supplied by: Harriet Gerber of New York Divorce Mediation     (631)827-5570  



Through divorce mediation, you and your spouse privately work through your differences and make decisions about your present and future needs. Generally, this process facilitates communication, promotes cooperation, reduces tension, and makes the inevitable separation easier. Divorce mediation is also a cost-effective alternative to traditional divorce litigation.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Rodd, LLP     (212)867-9123  



Return What are the benefits of mediation
Couples negotiate their own agreement and in the process develop the necessary tools for resolving future differences. The benefits are
  • Promotes communication and cooperation (not antagonism and adversity)
  • Allows the parties to retain control over the decisions that affect their lives without the dictates of the judicial process.
  • Provides opportunity to define and address all the particular interests and needs of everyone involved.
  • Helps the children win as well, as they see their parents working together for their interests and future.
  • Costs significantly less than litigation
  • Takes less time than litigation, enabling couples to sooner move ahead with their own lives.
  • Focuses on the future, towards rebuilding instead of destroying and casting blame.
  • Explores creative options independent of legal parameters.
  • Research shows that compliance and satisfaction with mediated agreements is higher than when imposed by a court, resulting in less post-divorce litigation

This answer supplied by: Adam Berner of Law & Mediation Offices of Adam J. Berner     (212)721-7555  



Return What happens after the mediation is completed?
After the mediation process is completed, one of your attorney-mediators will prepare the separation agreement incorporating all of the issues discussed and resolved during mediation. If you wish to get divorced immediately, rather than live under a separation agreement for a year or more, your attorney-mediator will prepare and file the divorce papers for you.

This answer supplied by: Pamela J. Pollack, Esq. of New York Divorce Mediation Group, LLC     (516)749-5017  



Return What is mediation?
Divorce Mediation is the other, better way to get a divorce.

Until recently, all matters concerning legal separation and divorce had to be handled by different attorneys for each spouse. But now, through the process of divorce mediaton, you and your spouse will become decision-making partners, rather than opposing parties in the court room.

With the assistance of a specially trained, impartial mediator, you will mutually identify and resolve the key issues related to your separation and divorce including:

- Division of marital property and debts
- Child support and spousal support
- Custody, visitation and shared decision-making for your children

This answer supplied by: Harriet Gerber of New York Divorce Mediation     (631)827-5570  



Return What is the advantage of having co-mediators?
An advantage for couples of co-mediation is that it provides the combined expertise and skills of two individuals for the same cost as one mediator. In our practice our clients benefit from our significant expertise in legal and mental health issues as well as in marriage and family counseling. Co-mediators can also serve as role models for the mediation process in terms of demonstrating effective communication; showing respect and seeking mutually acceptable resolutions.

This answer supplied by: Pamela J. Pollack, Esq. of New York Divorce Mediation Group, LLC     (516)749-5017  



Return What is the role of a trained mediator?
Throughout the mediation process, the mediator remains a neutral party. This means that the mediator is not acting as advocate, judge, or jury. Rather, the mediator's purpose is to assist the parties in identifying and clarifying the issues that must be resolved. He or she will help to develop a constructive dialogue that examines each issue with a focus on the parties' needs, interests, and priorities.

This answer supplied by: Barry Berkman of Berkman Bottger Newman & Rodd, LLP     (212)867-9123  



Return What is the time and cost?
Mediation takes significantly less time than litigation and because both parties pay one mediator instead of two advocates, the total cost will be substantially less than hiring separate lawyers in an adversarial process. A typical comprehensive mediated divorce takes 4-5 sessions, whereas a typical litigated divorce can take years.

This answer supplied by: Adam Berner of Law & Mediation Offices of Adam J. Berner     (212)721-7555  



Return What Matters are typically decided in divorce mediation?
Mediation can help decide the following divorce issues:
  • Parenting Arrangements
  • Child Support
  • Property Distribution
  • Debt Allocation
  • Spousal Maintenance (Alimony)
  • Tax Considerations.
  • Pre-Nuptial Agreements.

This answer supplied by: Adam Berner of Law & Mediation Offices of Adam J. Berner     (212)721-7555  



Return What other resources might the mediators provide?
It is not unusual for couples to require the services of other professionals to complete the mediation. Your mediators can offer referrals to such professionals as accountants, business evaluators, financial planners, mental health counselors and other experts, as needed.

This answer supplied by: Pamela J. Pollack, Esq. of New York Divorce Mediation Group, LLC     (516)749-5017  



Return Why is a mediated divorce a smarter alternative?
Experience indicates that a mediated divorce is a time saver and is significantly less costly than a litigated divorce. In mediation the parties avoid the expense of having separate attorneys as well as the costs of an often protracted and time consuming litigation process. In these difficult economic times this is a very important factor.

Mediation also allows the parties to retain a greater degree of control over the divorce process in a private, safe atmosphere with mediators who are sensitive to the unique issues involved in the separation and divorce process. The final resolution in mediation is determined by the parties and is not imposed by the court.

Additionally, parties who can agree to mediate in a respectful and cooperative manner almost always undergo less stress for themselves and for their children than those individuals who choose to resolve their differences in an adversarial manner.

This answer supplied by: Pamela J. Pollack, Esq. of New York Divorce Mediation Group, LLC     (516)749-5017  



Return Why use mediation?
Until recently, all matters concerning legal separation and divorce had to be handled by different attorneys for each spouse. But now there is a better way to end a marriage: DIVORCE MEDIATION.

Through the process of mediation, you and your spouse will become decision-making partners, rather than opposing parties in the court room.

Mediating couples are encouraged to find WIN-WIN solutions, so that each participant and each member of the family come out winners.

This answer supplied by: Harriet Gerber of New York Divorce Mediation     (631)827-5570  



Return Will I be able to get a legal divorce after mediation?
After all issues have been resolved, you decisions will be drafted by an attorney into a separation agreement. Once properly signed, this document will become legally binding and may be filed in court a as the basis of an uncontested divorce.

This answer supplied by: Harriet Gerber of New York Divorce Mediation     (631)827-5570  



Return Will I need a lawyer?
Lawyers can help their client understand the law and make informed agreements. It is recommended that at some point before the final agreement is signed, each party consult an independent attorney to review the mediated agreement.

This answer supplied by: Adam Berner of Law & Mediation Offices of Adam J. Berner     (212)721-7555  



Return What is a temporary support order?
A divorce may take a long period of time to finalize, depending upon cooperation or lack thereof between the spouses. Sometimes one spouse will find that he or she needs to file a temporary support request before a permanent order of support is established by the court. For example, if one spouse works and the other doesn't, the unemployed spouse can file with the Family Court for a temporary support order from a judge, even though a formal divorce action has not yet been filed. A hearing concerning the temporary order can often be scheduled within days or weeks. The spouse requesting the order must make a written statement stating facts that justify the order, including a detailed, sworn financial statement. If a divorce has already been commenced, an application for temporary support can be filed in the divorce action in Supreme Court. You must explain in your application why you need the relief you are requesting, which may be to pay the mortgage and taxes, pay utilities, school expense for the children, for food and any other expense you may reasonably incur.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What is alimony?
Alimony (Maintenance) is money paid to one spouse by the other for support during or after legal separation or divorce. It's designed to provide the lower-income spouse with money for living expenses over and above any money that is provided by child support. There are several factors a judge considers when deciding whether and for what period of time to grant alimony, such as: the parties' relative ability to earn money, both now and in the future; their respective ages and health; the length of the marriage; and the standard of living established during the marriage. Alimony is tax deductible to the person who pays it and is included in the taxable income of the person who receives it. While there is no requirement that the parties were married for there to be an award of child support, there can be no award of maintenance if the parties were not married.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return Can I relocate to another state with my children after my divorce?
Often, in a post-divorce or post-separation situation, the custodial parent wishes to relocate with the children to another state. In such a situation, a number of variables come into play, one of which is the affect such a move will have upon the non-custodial parent's visitation. The custodial parent is not freely allowed to relocate where the non-custodial parent has, and regularly exercises, an order of visitation. The custodial parent will generally need consent of the non-custodial parent or a court order approving the relocation. If the custodial parent seeks a court order allowing him or her to relocate, the court will consider a number of issues, but the underlying standard will be the best interest of the child. Some which impact upon the best interests of the child in a relocation situation include the custodial parent's reason for relocating; the quality of the relationship between the non-custodial parent and the children and the custodial parent and the child; the impact the move would have on the contact between the non-custodial parent and the child; how the move would enhance the child's and the custodial parent's life economically, emotionally and educationally, as well as other factors. If parents can agree to the relocation, this often entails the non-custodial parent receiving greater blocks of visitation time over vacation or summer periods as opposed to the existing shorter regular visits on a weekly or bi-weekly basis.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return How does child custody work in New York?
The issue of child custody often arises as a result of a divorce, or when two unmarried parents separate. In New York, custody can be addressed in both Supreme Court and Family Court. The state where a child has resided for the previous six months is called the home state and has jurisdiction over the child in custody cases. Parents generally are presumed to have equal rights to and responsibilities for their children. The decision as to which parent should have custody of a child can be reached by private agreement, or, if not, is made by a court. It is usually best if separating parents can reach an agreement concerning child custody. The standard used by the court to determine custody is the best interests of the child. In New York, there is no statutory joint custody, which means that, after a trial, a judge can only order sole custody to the mother or to the father. As well, if the parents agree to joint custody, a judge can order it based upon their agreement. The non-custodial parent will be entitled to visitation, and the amount of visitation will be determined either by agreement between the parties, or by a judge after inquiry into the facts and circumstances of the case and the best interests of the child. The wishes of the child may be taken into consideration, depending upon the situation and the age of the child. To assist it in reaching a decision in a custody case, the court may seek opinions of certain professionals, such as a Certified Social Worker or a forensic Psychologist or Psychiatrist. In almost all custody matters before a court, the child will be appointed an attorney called a law guardian whose job is to represent the best interests of the child. Depending upon the county the case is in; the parties may be responsible to pay for the law guardian's services

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return How is a custody order modified?
Changes or modifications can be made to a custody order where there has been a change in circumstances. A change in circumstances can be either a change in the custodial parent's situation or in the child's situation. The change in circumstances must be substantial, rather than minor, and must be such that the best interests of the child is at risk. In appropriate cases, a court can change custody where a custodial parent refuses to allow visitation by the non-custodial parent or where the custodial parent attempts to alienate the child from the non-custodial parent. Unless the parties agree to the circumstances for a change, a court will decide whether a change in custody occurs. The court may seek the assistance of professionals such as a Certified Social Worker or forensic psychologist or psychiatrist. The court will appoint an attorney, called a law guardian, to represent the child. While the input of the professionals is not controlling, it is often relied upon by the court in coming to a decision on custody.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What is shared or joint custody?
Joint custody is a legal, rather than a physical, concept, which refers to parents who share the decision-making powers regarding their child. In a joint custody situation, major decisions regarding the child's welfare, is supposed to be agreed upon jointly by the parents. In New York, there is no statutory authority for a court to award joint custody. After a trial, a judge can only award sole custody to the mother or father. However, if the parents agree to joint custody, a judge can issue a legal order of joint custody. Joint physical custody is a physical, rather than a legal, concept. Joint physical custody generally includes a situation where children spend equal or almost equal time at each parent's home. For a court to agree to such an arrangement, the court will need to know that the parents communicate reasonably well so that the logistics of the child having two homes will work out smoothly.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What is sole custody?
Sole custody of a child exists when one parent has the right and obligation to make decisions about a child's upbringing. When a parent has sole legal custody, he or she has the authority to make all decisions regarding the health, education, and welfare of the child. The other parent's input on these decisions may vary pursuant to agreement by the parties or decision by the court, but the parent with sole custody will have the final say. When both parents have equal decision-making power, it is called joint custody. If a parent shares joint legal custody, he or she may not exclude the other parent from the decision-making process. If this occurs, the parent who was excluded may take the other parent to court and request that a judge enforce the original custody agreement requiring the parties to work together on deciding major issues. A parent who violates the agreement might be found in contempt of court and suffer certain consequences, which can include being responsible for the other parent's attorney fees and if these are repeated violations, may risk losing primary custody to the other parent.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return Do I need grounds for divorce?
You can't get divorced based on irreconcilable differences in New York State. The only no-fault divorce provision that we have is when you have had a signed separation agreement for more than a year and have lived apart for more than a year. If you do not have a signed separation agreement and have not lived apart for more than a year, you need grounds for divorce. The legal grounds in New York, pursuant Domestic Relations Law, are:
  • Cruel and Inhuman Treatment. The situation has to be so serious that it is unsafe and improper to continue to live together;
  • Abandonment. This exists if one of you left the marital residence more than a year ago, or if one of you has refused to have sex with the other for more than a year;
  • Adultery. This must be proved by third party evidence, which is not so easy to obtain. Often adultery is included as part of cruel and inhuman treatment;
  • Imprisonment. The defendant must be imprisoned for three or more consecutive years.

This answer supplied by: Teresa Ombres of Divorcelab The Law & Mediation Offices of Teresa Ombres     (516)773-3133  



Return How are property and debt divided?
It is common for a divorcing or separating couple to decide about dividing their property and debts themselves, rather than leave it to a judge to decide. If a couple cannot agree, they can submit their property dispute to the court, which will use state law to divide the property. Division of property does not necessarily mean a physical division. Instead, the court awards each spouse a percentage of the total value of the property. Each spouse receives items whose worth adds up to his or her percentage of marital property and each spouse will retain his or her separate property. Courts in New York divide property in accordance with the laws of Equitable Distribution. In equitable distribution, assets and earnings accumulated during marriage are divided fairly. Generally speaking, the marital home, retirement benefits and bank accounts will be divided equally. In determining the equitable distribution percentage, spouses are given credit for both financial and non-financial contributions to the marriage (such as housekeeping, child-rearing, etc.) All debts incurred during a marriage are divided fairly, as well. You are advised to consult with an experienced family law attorney to ascertain what you may be entitled to in case of a divorce, separation or annulment.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return How does divorce work in New York?
A divorce is the dissolution of a valid marriage. The most common grounds for divorce are abandonment and cruelty. New York does not have "no-fault" divorce, but parties can get the equivalent of a no-fault divorce after they have lived apart pursuant to a valid, written separation agreement or a separation decree for a specified period of time. Before hiring an attorney, it is a good idea to gather as much information as you can about your family's finances, such as monthly costs of running the home, the income of you and your spouse, and the amount and location of savings accounts, investments, retirement plans and insurance policies. This information will be important when you first speak with an attorney and later, whether you settle or go to court. Be sure you seek out an attorney who is qualified to deal with family law issues. Make sure different attorneys represent you and your spouse. You, your spouse, and your attorneys may be able to work out an out-of-court divorce settlement. However, if you're unable to reach a compromise, or if one or both parties refuse to disclose financial information, your divorce will have to be handled in court by a judge.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return How does the divorce process start?
In mediation we meet together in a number of sessions until we have resolved all issues. We tackle the issues one at a time by gathering information, identifying conflict and brainstorming options to resolve the differences. The more creative you can be, the better your chances of finding a solution that satisfies both of you. The culmination of mediation is usually a signed separation agreement. Before the agreement is signed you should both have it reviewed by separate attorneys. Even though your mediator may be a lawyer, he or she is not acting as an attorney for either one of you. And even though the mediator may give you legal information during the course of mediation that is not the same as being given your legal rights. It is important for you to know those rights before you sign a separation agreement. This protects against either one of you trying to have the agreement set aside in the future because you did not know your rights. There are many lawyers who act as review attorneys, who understand your wish not to turn your divorce into a war and who will advise you of your legal rights and responsibilities.

In the Collaborative Process each party meets first with their attorney to give an overview of the marriage, children, earnings and assets. The attorneys may speak to each other before the first scheduled "4-way" meeting (with the two clients and two lawyers) to discuss an agenda. At the first 4-way this agenda is reviewed with the parties who are free to craft their own agenda. Also, at the first 4-way the parties and the lawyers sign a collaborative agreement, wherein they all pledge that they will not be going to court or threatening to go to court. You can see an example of this agreement at www.collaborativelawny.com . Any and all financial documentation is exchanged voluntarily. The goal, similar to mediation, is to reach a settlement of all issues that is good for both parties. If you and your spouse are ultimately unable to reach a resolution of all matters, and you have to resort to the courts, you both must hire separate attorneys.

In the traditional, litigated representation there are a couple of different ways to start. Even though you and your spouse have chosen not to mediate and not to collaborate, it doesn't necessarily mean you have to go to war. After being retained, if it seems appropriate, we may start by sending your spouse what we call a "friendly letter". This letter will assure your spouse that you are interested in having an amicable settlement, and that your lawyer strives to do the same. We ask your spouse to contact me, or have his or her lawyer contact me so that we may begin to work out the details of a settlement. If your spouse, or your spouse's attorney, does not respond to the friendly letter, we will have to commence an action for divorce in Supreme Court and have him or her served by a process server. At that point he or she has 20 days to respond, and the proceedings progress from there to conclusion. If possible and appropriate, it is very likely that, at some point, we all get together for a 4-way meeting. The advantage of the 4-way is that you can both listen to each other and try to understand each other. When people understand each other, even if they don't agree, at least they are not angry and are better able to come up with a resolution of their differences. Understanding is also key in mediation and collaborative law.

This answer supplied by: Teresa Ombres of Divorcelab The Law & Mediation Offices of Teresa Ombres     (516)773-3133  



Return How much will a divorce cost?
It depends upon how complex your issues are and how much conflict you and your spouse have. It also depends on the process you choose. There is usually no up-front retainer in mediation. You pay at the end of every session, and you pay in advance for preparation of the separation agreement. There is a retainer required in collaborative and traditional representations. There may also be court costs and other fees in addition to attorney fees.

This answer supplied by: Teresa Ombres of Divorcelab The Law & Mediation Offices of Teresa Ombres     (516)773-3133  



Return Should I hire a lawyer?
There are definite advantages to hiring a lawyer to represent you in court. An attorney is familiar with the law and the procedural rules of the court and the judge. These are things that you will be responsible for knowing if you choose to represent yourself. A lawyer also has experience in handling custody and visitation cases. He or she will know what evidence is favorable to you to present to the judge, and which evidence to exclude if it will hurt your chances for success. Another advantage of hiring a lawyer is that the lawyer has objectivity. A custody and visitation issue usually means there is a big emotional investment involving all of the parties. Your attorney will help you to maintain perspective and make reasonable decisions with regard to your case. Also, an attorney will prepare and file the necessary paperwork involved with your case, and will keep track of court scheduling and deadlines.

Once you hire a lawyer, it is very important that you work closely with him or her, and to provide the lawyer with all of the information necessary to prepare the case. While each case is different and will require different evidence, in most custody and visitation cases, you will need to ask witnesses to testify on your behalf, and gather any evidence that will help your case. Make a time line of the events and incidents, which are relevant. It is critical that you follow the advice of your attorney and the directives of the court. An experienced attorney will help you organize your evidence and present it in court effectively. If you are considering hiring an attorney please contact our office to discuss your specific needs and to arrange for a consultation if necessary.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What about post divorce issues?
Once a divorce is final, issues may remain for ex-spouses to deal with. Whether a couple has worked out their own plan for child custody and visitation, or whether a court has implemented a schedule, parents and children must adjust to the new arrangements. Parents often do not observe custody and visitation arrangements. Since they are no longer living together as a couple, ex-spouses may have to learn to live under a different budget than they were previously used to. Custodial parents must become aware of when child support payments are made, and non-custodial parents must know how and when to make payments. Similarly, the spouse with the lower income may receive alimony or spousal support, and the other spouse must know how and when to make these payments as well. The spouse making alimony payments should keep detailed records showing the date that the payment was sent, where it was sent, the number of the check, and a receipt signed by the recipient if paid in cash. The alimony recipient should keep records, as well, showing the date that the payment was received, the amount, a photocopy of each check, and a signed receipt if the payment was in cash. Sometimes circumstances change for one party or the other after a divorce, so that compliance with a prior order or agreement becomes impossible. In this type of situation, modification of the divorce judgment or agreement may be necessary or desirable.

Also, the spouse who is ordered to pay support often does not pay what has been ordered or agreed to. Where a divorce judgment orders the division of property, or transfer of property, one party does not comply. In these cases an enforcement proceeding can be filed requesting various forms of relief, including entry of judgment against the defaulting party, or even incarceration. You should not take matters into your own hands

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What are the grounds for seeking a divorce in New York State?
There are several grounds under which a person may seek a divorce from his or her spouse. The following grounds are based upon the "fault" of one of the parties:
  • Cruel and inhuman treatment
  • Abandonment for one or more years
  • Imprisonment for three or more years
  • Adultery
The "no-fault" grounds are as follows:
  • Irretrievable breakdown of the relationship
  • One year of living apart under a separation agreement;
  • One year of living apart under a judgment of separation

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What do we need to complete a Separation Agreement or get divorced?
There are basically three issues to be resolved in any Separation Agreement or divorce:
  • Parenting and access (traditionally called custody and visitation);
  • Support, which includes child support, if you have children, and spousal support, if appropriate;
  • Division of assets and debts that have been accumulated during the marriage.

This answer supplied by: Teresa Ombres of Divorcelab The Law & Mediation Offices of Teresa Ombres     (516)773-3133  



Return What if I can't afford the fees?
If there are marital assets that your spouse has complete control over and you have no access to, perhaps he or she would agree to pay for the mediation, or pay the fees needed to hire an attorney. If there are marital assets that you have no access to and your spouse refuses to give you any funds to hire your own lawyer it is possible to ask the court to order your spouse to pay your counsel fees. At the same time we may also be asking for custody, child support and spousal support. You will still need some source of funds to get your lawyer started.

This answer supplied by: Teresa Ombres of Divorcelab The Law & Mediation Offices of Teresa Ombres     (516)773-3133  



Return What if I want to modify the visitiation schedule?
When parents with children divorce, one parent is generally given custody, while the other is granted visitation rights. In some cases, following the divorce, either parent may wish to modify their visitation rights, with respect to the visitation schedule, holidays, vacation periods, relocation, or other visitation issues. If the parties agree on the modification, then the agreement can be incorporated into a court order. If the parties are unable to reach an agreement, or if one party fails to honor the agreement, then it is becomes necessary to obtain a court order for the modification. If one parent wants a modification and the other parent does not agree, a petition must be filed with the court. The guiding standard the court uses in determining whether the modification should be granted is the best interests of the child. If the visitation issues involve relocation, where one of the parents decides to relocate to another geographical area, the court can review custody and visitation rights, in consideration of the best interests of the child. Visitation rights can be terminated or suspended for a period of time in rare cases where the custodial parent feels the child maybe at risk. In some cases, where circumstances warrant it, the visitation will be temporarily changed to a supervised status.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What if I'm afraid my spouse will hurt me or destroy marital assets?
Due to the nature of divorces, one or both of the spouses may be fearful that the divorce proceeding will cause the other to become angry, vindictive, or harmful. Also, an individual may need protection to prevent a spouse from concealing, destroying or spending marital assets during the period of a divorce action. Orders of protection are designed to protect a person from physical harm or harassment by the other spouse. Temporary restraining orders and preliminary injunctions are direct orders from the court that are intended to protect a person from improper transfer of assets and other improper actions such as the destruction of property. These may also exclude one party from residing at the marital residence. Temporary restraining orders are often granted in divorce cases for these reasons.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What Is A Legal Separation?
A married couple experiencing marital difficulties, but still believing that the marriage may be reconcilable, may petition a court for legal separation, or, enter into a separation agreement. A legal separation is a finding by a court that the conditions or circumstances of a marriage make it intolerable for the parties to live together, but does not otherwise affect the legal status of the marriage. Alternatively, the parties can agree to separate voluntarily and draw up a formal agreement, which may include provisions for child support and maintenance and division of property and debts. At any time after one year subsequent to the legal separation, either party may file a petition for divorce.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What is a separation agreement?
A separation agreement is a comprehensive contract where the parties agree to live separate and apart for the rest of their lives. The agreement must set forth rights and duties with respect to important issues such as custody, visitation, child support, distribution of property and all other matters that arise at the end of a marital relationship. Each of the parties should consult their own attorney to draft and prepare the agreement so that these complex issues can be analyzed and resolved appropriately. The final agreement is then filed with the clerk of the county where either spouse resides. At the end of one year from the date of the agreement, either spouse may initiate a suit for a "no-fault" divorce.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What is an annulment?
Like a divorce, an annulment is a court procedure that dissolves a marriage. An annulment, is different in that it treats the marriage as though it never happened. For some people, divorce carries a stigma and they would rather their marriage be annulled. Others prefer it because it may be easier to remarry in their church if they go through an annulment rather than a divorce. Usually an annulment will be granted if there has been an incidence of misrepresentation or fraud in a marriage which the other spouse relies upon, such as when a spouse lies about his or her ability to have children, or lies about being old enough to marry without parental consent. Annulments can sometimes be granted on the grounds of concealment, such as when a spouse hides an addiction to alcohol or drugs, conviction of a felony, children from a prior relationship, a sexually transmitted disease, or impotency. Couples married in a religious ceremony may be able to obtain a religious annulment after obtaining a civil divorce in order for one or both spouses to remarry. Most annulments take place after a couple has been married only for a short period of time, though this is not always the case. Annulments are often more complicated to prove than divorce, so unless it is absolutely required, divorce may be a more preferable choice.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What is an order of protection?
A temporary restraining order may be obtained by a spouse who feels threatened, or feels that he or she is or may be a victim of domestic violence. Sometimes during a divorce, one spouse may feel the need to ask for a temporary restraining order against his or her spouse. Restraining or protective orders instruct the spouse to cease particular activities against the victim and may even require the offending spouse to remain away from the other spouse, children and marital residence. After filing an appropriate petition, the court may issue a temporary restraining order and a hearing date will be set for sometime within the next few weeks. A law enforcement official will deliver a copy of the order to the spouse who must abide by the rules of the restraining order. Some restraining orders require that the perpetrator not contact, attack, strike, threaten, batter, or otherwise disturb the peace of the protected person. Other protective orders require that the spouse move from the protected person's home, stay at least 100 yards from the protected person, or attend counseling. At the hearing, the victim and the accused are both able to plead their cases, and the judge decides whether to terminate the order or extend it for a year or more. If a spouse violates the order, they will be subject to arrest and possibly jail time. If a restraining order is extended from temporary to permanent, the spouse may no longer be able to purchase or own a firearm. If you feel you need protection from a spouse or an ex-spouse, speak to qualified family law attorney immediately to determine the appropriate procedures you should take.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What is marital property?
Marital property is any property owned by a husband and wife that's been accumulated during the marriage, regardless of which spouse earned it and regardless of whose name it is titled to. The time frame “during the marriage” starts as of the day the couple marries, and usually ends on the date that one spouse files a divorce action in court. In New York, marital property is divided during a divorce according to what the court deems is equitable or fair. This is not necessarily equal. Separate property is property owned by one spouse prior to marriage, and also includes property received as a gift or by inheritance during marriage, or as a result of a personal injury settlement. Property purchased with the separate funds of a spouse remains that spouse's separate property. A business owned by one spouse before the marriage remains his or her separate property during the marriage, but may be considered marital property if it increased in value during the marriage due to the efforts of one or the other of the spouses, or if both spouses worked at it. Separate property can be changed into marital property if its separate identity is not carefully maintained during the marriage. You should discuss in detail with an experienced family law attorney how each item of property was obtained and what contributions you have made to any increase in its value.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What is supervised or restriced visitation?
When a non-custodial parent has a history of violent or destructive behavior, especially toward the child, the court often requires that visitation between the parent and the child be supervised or restricted. Visitation may also be restricted or supervised if there is an incident or history of domestic violence. Supervised visitation means that an adult, most often someone other than the custodial parent, must be present at all times during the visit. Sometimes the supervisor will be a friend or family member, if both parents agree. If the parents cannot agree, the court will usually appoint a supervisor, or may order that the visitation take place at a neutral supervised visitation facility. This way, parents are able to pick up and drop off the child without seeing one another or interacting with one another. Supervised visits may be helpful in establishing a regular, dependable visitation schedule. They may also be useful to the court, because often these facilities can provide a written report to the Judge about how the visits progress. Supervised visits at such a facility usually are held once per week for one hour. If supervised visitation is ordered, but really not appropriate, you can petition to change the visitation to unsupervised visitation.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What should I do to begin to prepare for my divorce?
You should begin to gather whatever financial information you can. You will need at least two years of tax returns, recent pay stubs, and any and all documentation of your assets and debts. This includes brokerage account statements, IRA and other retirement account statements, life insurance statements, etc. You may ultimately need to have your house, apartment, business and pensions appraised. You and your spouse are entitled to full financial disclosure from each other and will likely be exchanging sworn affidavits of net worth, no matter which process you choose.

This answer supplied by: Teresa Ombres of Divorcelab The Law & Mediation Offices of Teresa Ombres     (516)773-3133  



Return When does a court grant a judgment of separation?
A Court grants a judgment of separation when either of the parties brings an action for separation in the Supreme Court. A Court may grant separation based upon the following grounds, which are similar to the grounds for seeking a divorce:
  • Cruel and inhuman treatment
  • Imprisonment for more than three years
  • Adultery
  • Abandonment for less than one year
  • Non-support
If the Court grants a judgment of separation based upon any of these grounds, either party may sue for a "no-fault" divorce one year after the filing of the judgment and living separate and apart. A divorce will not occur automatically.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return Which divorce 'process' is best for me (mediation, collaborative, litigated)?
That really depends on your situation. If you are committed to resolving your issues outside of court and you feel able to speak up for yourself, in the presence of your spouse, without the aid of an attorney or advocate, mediation might be the best process for you.

If you would feel more comfortable having an attorney present with you in any negotiations or settlement meetings, but would be willing to agree to keep the matter out of court, the collaborative process could work best for you.

If you or your spouse cannot be in the same room with each other, or one of you refuses to negotiate or make any efforts to settle, or if there is a history of domestic violence, or serious power imbalance in your marriage then the more traditional litigated approach is best-suited, and you'll need a lawyer to represent you in court.

This answer supplied by: Teresa Ombres of Divorcelab The Law & Mediation Offices of Teresa Ombres     (516)773-3133  



Return How do I file a complaing of domestic violence in New York?
In New York State, the current statistics indicate that one person is victimized by physical violence every three minutes. In most instances, family members or relatives perpetrate the violence. Abuse, which occurs within families and between family members, is called domestic violence. In order to qualify as a domestic violence case, the parties must be married or formerly married, engaged or formerly engaged to be married, or living together, or related by blood, marriage, or adoption, or have a minor child in common.

Besides physical violence, domestic violence includes threats, emotional abuse, harassing telephone calls, stalking behaviors, and other forms of dominance and control. If you believe you are a victim of domestic violence, you should immediately call the police. Police will offer protection to you, and may direct the abuser to stay away from you. Police may also provide referrals to emergency shelters, victim services agencies, counseling, or the courts.

In New York State, complaints of domestic violence can be filed in Family Court, Criminal Court, or both. In either court, an order of protection can be requested. An order of protection is a directive requiring the abuser to refrain from harassing you, threatening you, or otherwise intimidating you. Some order of protection include one or more restraining orders, which prevent the abuser from coming to your home or place of business, or calling you on the telephone. Other sanctions against the abuser can include but are not limited to jail time, mandatory attendance in an anger management program, and fines.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What if I've been accused of abuse?
If you are accused of abuse and wish to contest the charges, you should begin by immediately selecting an experienced family law attorney to represent you. This is critical, because in New York State, complaints of domestic violence can be filed in Family Court, Criminal Court, or both. Sanctions can include but are not limited to jail time, mandatory attendance in an anger management program, orders of protection, and fines. If restraining orders, or an order of protection is granted to the accuser, the defendant can be removed temporarily from home and denied access to children.

It is very important to remember that an allegation of abuse does not equal proof of abuse. The complainant must prove the allegations against you. Unfortunately, the accused defendant is often treated “guilty until proven innocent”. It is the responsibility of your lawyer to protect your rights if accused by asking witnesses to testify on your behalf, and by gathering any evidence that will help your case, including police reports. It is important that you work closely with your attorney to prepare your case. Make a time line of the events that occurred before the alleged abuse, make a record of everything that has happened since, as well. It is critical that you follow the advice of your attorney and the directives of the court. Once a hearing is scheduled, you will have a chance to defend yourself against the charges and show evidence and witnesses that support your defense.

Where an order of protection has been issued against you, obey its provisions until you have your day in court. If you must have contact with the person in whose favor the order has been issued, such as to pick up a child for visitation, bring a witness with you. Do not go alone and expose yourself to another charge of abuse.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What is a protective order?
A domestic violence injunction may be obtained by a person who feels that he or she is in danger of, or a victim of, domestic violence. Injunctions, also known as restraining or protective orders, usually require that the accused not contact, attack, strike, threaten, batter, telephone, or otherwise disturb the peace of the protected person. Other types of protective orders require that the accused move from the protected person's home, stay at least 100 (one hundred) yards from the protected person, or attend batterer treatment counseling. If an accused batterer violates a restraining order, he or she may be subject to jail time. Unfortunately, however, some attackers may not be influenced by a restraining order, and attempt to inflict harm on the victim after the order has been issued. Victims of abuse should also consider other measures such as going to a shelter, staying with family or friends, having family or friends stay with them, leaving the area, and taking self defense measures. Always contact law enforcement officials if you are in fear for your safety.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300  



Return What is the difference between marital and separate property?
Marital property is all property acquired during the marriage - regardless of how title is actually held. Separate property includes all property acquired before the marriage and also includes inheritance, gifts from third persons, compensation for personal injuries and property acquired after the start of an action for divorce.

This answer supplied by: Catharine M. Venzon, Esq. of Venzon Law Firm, PC     (716)854-7888  



Return What Is A Prenuptial Agreement?
A pre-nuptial agreement is a binding legal contract between two people who intend to be married. A pre-nuptial agreement, also known as a "pre-marital agreement," generally, sets down rules regarding a couple's finances. For example, if one party is wealthy, he or she may ask the other party to sign a pre-nuptial agreement that specifically states the way in which assets will be divided upon divorce or death. People enter into pre-nuptial agreements to try to ensure that their assets will remain theirs if the marriage fails, to provide that assets go to their children in the event of death and to provide for support of their spouse after their death. Pre-nuptial agreements usually describe what property and prospects each spouse is bringing into the marriage, who will own the property and the investment income from the property, and what will happen to the earnings of each spouse. A pre-nuptial agreement might also cover what happens with property one spouse may inherit, what happens in the event of the death or disability of a spouse, how taxes will be handled, the level of support in the event of a divorce, and what happens to debts owed both before and during the marriage. If you are planning to enter into a pre-nuptial agreement, it is critical that you consult with a family law attorney experienced in these matters.

This answer supplied by: Jacqueline Harounian, Esq. of Wisselman, Harounian & Associates, P.C.     (516)773-8300