Divorce 101

Heart Breaks, Head Aches and the Art of Equitable Distribution

Posts Tagged trial

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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“No-Fault” Divorce: The Holy Grail

Oct 13

Posted by Charles Messina in Grounds | 5 Comments

In New York State, one must have “Grounds” to obtain a divorce.

Grounds for divorce are set forth in our Domestic Relations Law Section 170  and include only:

  1. Cruel and Inhuman Treatment -  A “catch all” that is often abused and sometimes misused;
  2. Abandonment – for more than one year…  may also encompass “constructive abandonment”  a/k/a refusal of sexual relations;
  3. Confinement of Defendant to prison – self explanatory;
  4. Adultery – which is surprisingly difficult to prove since spouses are incompetent to testify against each other concerning this; or
  5. Parties have lived apart pursuant to a judgment of separation or separation agreement for at least one year-  sometimes referred to as a “conversion” divorce.

In order to obtain a divorce in New York, only one of the above grounds will do the trick, nothing else.  The party seeking the divorce must prove, to a jury if necessary, that he or she has sufficient grounds for divorce.  And the longer parties are married, the greater the proof necessary to demonstrate sufficient grounds.  Simply saying “We don’t get along any more and we both want a divorce” is insufficient.

To complicate matters, if there are no grounds for divorce, there can be no equitable distribution of property.  What does that mean in English?  It means that if Wife Wanda files for divorce against Husband Bob, and Bob has a great job, lots of income, and all the assets are in his name, and Wanda has little more than her dislike of Bob’s bottle collection as her grounds, Bob gets to have a trial and challenge her to prove her grounds.  But why would Bob want to do that, you might say?  Because if Bob defeats Wanda in a grounds trial, he will not be forced to give her any of the money he has hidden away in a Swiss bank account, or to give her the house owned in his name, or to provide her with the Mustag GTO that he just bought while leaving her with the ’82 Camry.  Bob can effectively hold Wanda over the economic barrel.  When this happens, Wanda is usually willing to give up what would normally be her fair share of the assets in exchange for Bob not challenging her grounds for divorce.  I tend to think of this as legalized blackmail, but perhaps that is being too harsh…

You may have noticed there is no “irreconcilable differences” in that list of grounds.  New York is, I believe, the only state in the union that does not have a “no-fault” divorce provision, such as irreconcilable differences.  There is an outdated mode of thought in New York that the State has a vested interest in the marriage relationship.  Personally, I feel that vested interests in marriage are strictly the business of the people involved in that marriage and the State has no business forcing two people who can’t stand each other to remain together.  I leave it to religion to make moral determinations, those ar enot for me.

There has been a push in the past decade to bring New York in line with the rest of the country and provide a no-fault ground for divorce, but a law has yet to pass.  There is currently a bill in the New York State Assembly which would add “irreconcilable differences” to the list of grounds for divorce.  I am all for it!  The time has come for New York to get in line with the rest of the country and give people a way out when the love is gone and there is no going back.

A grounds trial is a horrific beast to watch.  I’ve seen them, and they are not pretty.  The plaintiff parades a line of witnesses across the stand to say what a horrible creature the defendant is.  The defendant parades a line of witnesses across the stand to say what a wonderful person he or she is and explain away the allegations of the plaintiff.  In the process, both people are irrevocably scarred, any chance of dealing civilly with the other is burnt to ash, and the State has thus preserved the “sanctity” of marriage.

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