Divorce 101

Heart Breaks, Head Aches and the Art of Equitable Distribution

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5 Considerations Before Going To Family Court

Nov 14

Posted by Charles Messina in The 5's, family court | No Comments

In New York State, we have Family Court.  Family Court is a Court of “limited jurisdiction.”  This means that Family Court can only hear matters that are specifically set forth by statute.  The statutes that tell us what matters Family Court may hear are the Family Court Act (FCA), the New York State Constitution (yes, there IS a state constitution) and to some extent the Domestic Relations Law (DRL).  While Family Court is generally touted as “user friendly” and informal, it can be a scary place, where children are taken from parents, people defend against alleged family offenses, and Temporary Orders of Protection are regularly issued without affording the Respondent the ability to dispute the allegations upon which it is based.

Before going to Family Court, as either a Petitioner (the person bringing a Petition) or the Respondent (the person responding to a Petition), there are some issues one must consider very carefully first:

1.  Is Family Court the proper place for this Petition?  Remember, as a court of limited jurisdiction, the Family Court can only hear certain enumerated issues.  Is your issue one of them?  If not, your Petition will likely be dismissed at the first appearance.  For instance, Family Court cannot hear an action for divorce… only the Supreme Court has jurisdiction for that.  Family Court cannot issue a Qualified Domestic Relations Order (QDRO) to divide a pension.  Be sure the Court has the authority to grant the relief you are seeking before you file the Petition.  Under certain circumstances, Supreme Court might be a better venue for a given matter.

2.  Who do I want to hear this matter?  While it may seem like a silly question, it is a very basic tactical question that any attorney will carefully consider before filing any Petition.  In the Family Court, generally Support Magistrates hear all support related Petitions.  Support Magistrates are not judges, are not elected, and have extremely busy calendars.  Many of them are extremely good at what they do, but the occasional Support Magistrate may not be a good choice to hear a given matter.  On the other hand, Family Court Judges generally hear matters involving custody and visitation.  Do you know who the Support Magistrates and Family Court judges are that may be assigned to your case?  Do you know who the Supreme Court Justices are that might be assigned to your case if filed in Supreme Court?  before you file a Petition, you should research both of these issues.  Call the clerk’s office and ask which Judges or Magistrates your case may be assigned to, they will let you know, with a little cajoling.  Research those persons who are on the list of possibilities.  How have they performed in the past?  Have your friends or relatives been before any of them?  Assess whether the Family Court or Supreme Court possible assignees might be more sympathetic to your case.

3.  Manners.  you need to be on your best behavior, before, during & after your Family Court appearance.  Dress appropriately, it goes a long way.  Men – button down shirt, neck-tie, neat and clean pants and shoes.  Women- neat and clean, no jeans, no stiletto heels, CONSERVATIVE, no abdomen showing, no micro-mini skirts, easy on the cleavage (though it pains me to say that).  All- ditch the piercings, cover the tattoos, speak when spoken too, do not yell, scream, curse, talk over the Judge, or end a sentence in the courtroom with anything other than “yes/no your honor” or “yes/no sir/ma’am.”  Trust me, these simple manners will go a long way with the Court.  You might be asking yourself :Hey, he said best behavior before and after the appearance, why can’t I flip the Judge off after I leave the courtroom?”  Well, that is because of technology.  There are cameras at all the entrences, exits, in the hallways, big brother has your number.  There is a team of security personel watching your every move, and they watch CAREFULLY!  if you’re planning on putting out a dube in the ashcan next to the door, you’ll probably be arrested on your way out.  And make no mistake, there may not be official channels, but you will be the talk of the Courthouse if you make a scene for any reason and you Judge will likely hear about it.

4.  Should I appear and answer a Petition my ex-wife/girlfriend/brother0in-law/husband brought against me?  Sounds like another trick question, but it is not.  You may not always want to appear to answer a Petition.  For instance, certain jurisdictional defects might dictate that you not appear, or only put in a special appearance to contest the jurisdiction of the Court.  If you appear and don’t raise the objection, you may very well waive the issue.  Be very careful about this, only a licensed attorney should make a decision to not appear or to make a special appearance to challenge jurisdiction.  The question is simply to technical for the average non-lawyer to answer.  When in doubt, get an attorney.

5.  Should I get an attorney?  This is an easy one… YES!  You should get an attorney.  if you can afford an attorney, retaining one to represent you is your safest option.  Attorneys know the rules, the system, and are familiar with all the players in the system.  They can answer your legal questions, explain your options, and carry out your instructions to give you the best chance of coming out of this in reasonably good shape.  If you cannot afford an attorney, call your local Bar Association and ask if they can refer you to either the local assigned counsel program, volunteer lawyer program, or an attorney who might represent you for free.  Contrary to popular belief, attorneys do a tremendous amount of free legal work.  If the Bar Association can’t help you, ask the Family Court for a referral to the assigned counsel program when and if you appear.  The Court is always happy to make the referral, though you may or may not qualify.

In short, the worst thing to do is ignore the matter if you are summoned to appear in Family Court.  Retain an attorney if you have the means, seek help from the system if you do not.  Family Court can be a scary place, but with some research ahead of time, and some common sense, you can get through it.  And one last tidbit…  bring a book!  Family Court is always a slow process and you just might make it through that novel you started two years ago and couldn’t find time to finish.

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5 Questions For Your Prospective Divorce Attorney

Oct 22

Posted by Charles Messina in The 5's | 2 Comments

The worst thing in your life is currently taking place… you have been served with divorce papers.

What do you do next?  First thing, find an attorney.  Not just any old attorney.  Not your brother-in-law’s best friend from college who practices corporate law and will do your divorce as a favor.  Not the lawyer you went to with your spouse three years ago to have your joint wills drawn.  And for the love of all that is holy, don’t randomly open the phone book to the attorney pages and pick the first number you see!

You need someone to guide you through a very difficult and complex time that will definitely change the rest of your life.   First, ask around.  Have friends or relative who are divorced?  What attorney did they use?  How was their experience dealing with that attorney?  I’m certain, with 43% of marriages ending in divorce, you’ll find someone who can recommend an attorney.  If not, call your local bar association and they will be happy to recommend a competent attorney who has experience in divorce.

So you find a few names and decide to make a few phone calls.  But what do you ask a prospective attorney to find out if he or she is right for you?  I suggest the following:

  1. Have you ever represented someone in a divorce before? This may seem silly, but you need an attorney who has some experience to guide you through what could be the most important decisions of your life.
  2. Will you take my case to trial if necessary? It is amazing the number of attorneys who will be happy to file your divorce for you, and the minute your spouse puts up an objection to anything, they tell clients that they only do no-fault or default divorces and will not take the case to trial.  You need someone with the competence and knowledge to take your case to trial, if it becomes necessary.
  3. Will you be doing the work on my case, or will your associate who is 1 year out of law school? Some of the bigger firms like to pull the old “bait and switch” routine.  You meet with the big gun, who’s been doing matrimonial law for three or four decades, you sign the retainer, and the next thing you know, the big gun is gone and you got the water pistol instead.  A fresh young face straight out of law school, and you’re how he or she is going to get experience in matrimonial law!
  4. What about the fees and costs? So you’ve been presented with a retainer agreement to sign.  Does the retainer that you pay include costs and fees, or will you have to come up with those separately?  There is a filing fee with the court, cost of deposition transcripts, cost to have a process server serve the papers, motion filing fees, the list goes on and on.  Are any of those fees included in the retainer or will you have to come up with more money for them?  What is the estimate you can expect of the costs and fees?
  5. When was the last time you were in court on a divorce? Perhaps the most telling of all.  Does the attorney answer “this morning,” “yesterday,” “a few weeks ago,”  “a few months ago,” or “well, I’ve never actually been to court on a divorce before… but don’t worry, it’s no different than suing someone for a dog bite!”  I think this is rather self explanatory, so I won’t belabor the point.

There are a number of other questions you can ask a potential divorce attorney to get a feel for their level of competence.  For instance, are they a Fellow of the American Academy of Matrimonial Lawyers (AAML)? Are they a member of their state or local bar association matrimonial and/or family law committee?  When was the last time they attended a Continuing Legal Education (CLE) program having to do with divorce?  I’m sure you can come up with more on your own.

The moral of this story, is when shopping for a divorce lawyer, ask questions.  If the prospective attorney can’t answer them, or makes you feel uncomfortable, move on to someone else.

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5 Myths About Divorce in New York

Oct 17

Posted by Charles Messina in The 5's, Uncategorized | No Comments

There are a lot of misconceptions about Divorce in New York State.  People hear things from their brother in Pennsylvania, and their old friend from high school who got divorced 10 years ago, and are willing to take their word for it on how things will work out.  Here are a few common myths and the lowdown on how things really work:

  1. The Mother always gets the kids:  Not quite.  In New York, there is no preference for the Mother to have custody of the children over the Father.
  2. The Father has to pay child support no matter what:  Actually, the non-custodial parent generally pays child support to the custodial parent.  If the Father is the custodial parent, barring certain additional considerations, the Mother will often be required to pay child support to the Father.
  3. If we get divorced, my spouse gets half of everything:  Actually, New York is an “Equitable Distribution” state, not a “Community Property” state.  This means that assets and debts are distributed according to what is “equitable” not just a quick division of half.
  4. I can get a divorce for irreconcilable differences:  No you can’t.  There are only certain grounds for divorce in New York and irreconcilable differences is not one of them.
  5. At least  my pension is safe, my spouse can’t get to that:  Wrong.  A pension accrued during the course of a marriage is considered marital property to the extent it was accrued during the marriage.  Pensions are often distributed in a divorce by way of a QDRO (Qualified Domestic Relations Order).

In New York, the courts generally want to do what is fair, or equitable between the parties in a divorce.  Sometimes old myths prove true, though usually not for the reasons that one might think.  New York is still stuck in the age of the dinosaurs in some respects (like no “no-fault” divorce statute) but is rather progressive in others.  I personally think that equitable distribution is a more equitable way (pun intended) to distribute property and debt than everyone taking half, regardless of whether they ran up a $50,000 credit card bill 2 months prior to filing for divorce.

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