Frequently Asked Questions
With no-fault divorce in New York State, it is fairly easy to be able to prove that ground for divorce so that it would not be an issue in the case. All you need to show is that there has been an irretrievable breakdown in the marriage for a period of six or more months. It does not matter who caused the irretrievable breakdown. So, with a little planning before the divorce is commenced, you can eliminate this as an issue. For more information, see the discussion on Separation and Divorce.
This is perhaps the most frequently asked question but the most difficult one to answer. The reason it is so difficult and complicated to answer is because it depends upon so many factors such as: · what are the issues of the case? · are some or most of the issues being contested? · are the issues, though contested, simple or complicated? · is your spouse (or you) unreasonable in their demands? · is your attorney reasonable but your spouse’s attorney litigious (or vice-versa)? · have you chosen the best approach to resolve your differences? See also the answers to Some Questions People Should Be Asking.
If your spouse is not going to agree to you getting custody of the children, a court will award custody based upon the “best interests of the children”. There are many factors a court will consider in determining custody. With your attorney’s help, you should try to strengthen the positive factors in your favor and eliminate the negative factors. With some planning, the best time to do this is well before any litigation is commenced. But even with many factors in your favor, custody litigation is hazardous and very costly. · An attorney for the children is typically assigned to represent the children. And even though you may think your goals and the children’s interest should be aligned, you may be surprised by what the attorney for the children is advocating. · Also, in many contested custody cases, a forensic psychologist is appointed to evaluate the parties and the children. This will create another source of unpredictability and expense. For more information, see the discussion on Parenting Matters.
The answer will depend, in part, on what your financial resources will be after the divorce. Also, if you are awarded custody of the children, your ability to stay in the marital residence will be anchored unless the other side can show it would be a financial hardship to keep the marital residence under the circumstances.
In New York State, there are formulas for determining spousal maintenance and/or child support. The parties or the court can deviate from these formulas depending upon the circumstances of your case, as long as the reasons are stated why there is a deviation. Under the spousal maintenance formula, there are suggested guidelines for how long it will last, depending upon the length of the marriage. In New York State, the obligation to support a child goes until age 21, unless the parties otherwise agree to extend the time in an agreement. For both spousal maintenance and child support, there are various other terminating events under which support might end sooner. For more information, see the discussion on Spousal and Child Support. For a more in-depth discussion of these Frequently Asked Questions, as well as many their issues, please attend one of my free mini-seminars entitled “The Nuts, Bolts and Monkey Wrenches of Divorce”.
Some Questions People Should Be Asking
One way you’ll know the answer to this question is whether the attorney asks you to bring some information and/or documentation to the consultation, how long the attorney spends with you, and the questions the attorney asks you. Of course, if your primary concern is whether the consultation is free, you may not find out the answer to this question until it’s too late.
At the consultation, did your attorney explain the different approaches to resolving disputes with you, including the pros and cons of each approach, and explain why one approach might be better for you than another under the circumstances? (If your attorney is recommending a particular approach for you, does (s)he practice the other approaches that (s)he is not recommending for you?)
There are many ways to resolve disputes, including mediation, working with lawyers to reach an amicable agreement without litigation, collaborative law, arbitration, and litigation. There are pros and cons to each approach. And as you move along from the first approach to the last approach, consider that the approaches become more expensive, and you lose more and more control over the process. Consider that if the attorney you are meeting with is a “litigator”, what is the likelihood that they would recommend another approach to you and potentially lose business? For more information, see the discussion on Separation and Divorce or attend one of my free mini-seminars entitled “The Nuts, Bolts and Monkey Wrenches of Divorce”.
One way you’ll know the answer to these questions is whether the attorney is telling you how the case will turn out, such as “you’ll get custody of the children”. Indeed, there will certainly be a provision in the retainer agreement that states the attorney has made no promises or guarantees to you about the outcome of your case, and that you understand the risks and hazards of litigation. Also, if you do not understand what the attorney is saying, and the attorney is losing patience with you because you’re asking so many questions, do you think it’s going to get better over time?
Retainer agreements with lawyers are very one-sided in favor of the lawyers. You should negotiate it to make it fairer for you financially as well as to help you protect your rights as a client and consumer of the legal system. To pick a simple example, is the attorney willing to bill you in “.1” minimum increments or in “.25” minimum increments? If the attorney’s hourly rate is $400, the difference could mean you’re paying $40 versus $100 for a 5-minute phone call. For more information, attend one of my free mini-seminars entitled “What Lawyers and Judges Don’t Want You to Know”, where I provide attendees with a sample retainer agreement used by a prominent law firm and dissect it to show you how you can make it fairer.
Attorneys must preserve the confidences of their clients and also not talk to others about who their clients are. But with the client’s consent (and for the lawyer’s protection—with that consent in writing), you will be able to speak to former clients to see how they regard the attorney you’re considering to retain. The problem is that most attorneys do not want you (a prospective client) speaking to their former clients. For more information, attend one of my free mini-seminars entitled “What Lawyers and Judges Don’t Want You to Know”.
Did you know that every day in our court system, people are pressured by the courts or by their own attorneys to enter into binding verbal contracts before people can first see their settlement agreement in writing? This sort of dangerous animal is called a “stipulation of settlement put on the record”. There are many reasons why people are not told about this sort of situation. If you do not want to be one of these people, please read one of my articles entitled “Stipulations of Settlement Put on the Record”, or attend one of my free mini-seminars entitled “What Lawyers and Judges Don’t Want You to Know”.
The short answer is “yes”. Maybe you’ll find the first or second attorney explained things better to you and appears more knowledgeable and experienced. Or maybe one lawyer is willing to provide references and negotiate the retainer agreement and the other attorney is not. These are all things that can give you confidence in the attorney you’ll be choosing and how well you’ll be able to work with him or her. Also consider that consulting with a particular attorney can disqualify that attorney and firm from representing your spouse. For a more in-depth discussion of Some Questions People Should Be Asking and many other matters, please attend one of my free mini-seminars entitled “What Lawyers and Judges Don’t Want You to Know”.