Separation vs. Divorce

To married people the terms separation and divorce are used interchangeably. It seems that the public at large is unfamiliar with the difference between the two. Frankly there is a rather big difference in that with a legal separation the parties remain legally married. In a divorce they do not. Additionally a separation agreement is only enforceable in the same way any other contract would be enforceable. One needs to sue the other party for a breach as opposed to having a judgement (of divorce) already in place. The burden is on the party bringing the action to show that in fact the contract was breached and then the party may proceed to the enforcement part of the matter. In a divorce there is no need to prove whether or not the breach was intentional or if it was an oversight. If you don't get want you are entitled to from what is listed in the judgement you can jump right to the enforcement part and garnish salaries or collect your money the way you would in any other civil matter where you already have a judgment against the other party.

Separation agreements also do not automatically turn into divorces. People can stay legally separated for ever if neither party files for divorce. Even after the filing, there is no guarantee the matter will not be contested by the other party. If the filing of the divorce is contested after a separation agreement is executed (which by the way it often is)this can lead to a very ugly litigated battle where the separation agreement will be put in jeopardy of being changed or altered in order to settle the matter amicably.

Separation agreements do not provide the closure the parties in all liklihood are seeking in disolving their marital ties. These agreements should be entered into with full knowledge as to each parties responsibilities and risks in the future.

Practicing Law Among Old Friends

A group of matrimonial attorneys found themselves in the courtroom recently discussing the longevity of their time in the trenches and relaying tales of experiences with attorneys not quite so familiar with the world of matrimonial law. One attorney said , that she remembered when I was a newbie. That I informed her much to her chagrin was 23 years ago. We talked of the difficulty of settling cases with those entering our world who are merely dabblers and were ill equipped to settle a case much less try it.

The dabblers are dragging these cases out to make money they aren't earning said one lawyer. It is really disgusting how these attorneys take cases from us and then blow them up. They will usually charge a lower retainer to begin the case but due to their inexperience they will cause a case to linger far beyond where it should. The economy was blamed for these attorneys entering our world. Everyone thinks they can practice matrimonial law, until they get a case. The over abundance of practicing attorneys also is a danger to the trusting consumer.

Sadly we must all be wary of the variables in our world and handle them accordingly. Caveat emptor has never been more important than it is in these economic times.

Marital Longevity and the Quest to be Happy

I just realized that both of my grandmothers were born on the 22nd day of the month. October was my paternal grandmother while July was the birth month of my maternal grandmother. The other significant co-incidence is that both sets of grandparents had been married over 50 years, as coincidentally were my parents.

Doing what I do it seems almost inconceivable that I have been surrounded by marriages of such longevity. I myself cannot be put into a category with these extraordinary people in that I am on my second marriage and the 50 year mark would put me into well passed my own life expectancy.

It would be a young child's fantasy to believe that each of these marriages were perfect in every way. I witnessed as a young child certain instances which would mar my vision of a perfect marriage. None of the instances I witnessed however,or even some of the stories I heard could ever touch the real life stories I have been privy to in my matrimonial practice.

Is longevity something that is passe' in modern marriage? I ask myself that question frequently. I don't believe that modern families are any more dysfunctional than they were 50 years ago. I do believe however, that modern families are less tolerant than generations before us and feel that they deserve to be happy. Are we in fact a more narcissistic society if we choose to live our lives happy as opposed to suffering within a loveless marriage? I think it has more to do with societal acceptance of divorce as opposed to our own selfish quest for happiness. We are not judged the way our grandparents would have been if they divorced. More and more couples divorce and it is less of an issue even in polite society.

As their granddaughter I would never presume to judge the marital relationship of any of my grandparents. They as well as my parents set for me a loving caring cocoon that to this day I can still retreat to whenever I need to experience the love that they showered upon me. Their examples represent the gold standard for me in terms of marriage. As I remember my grandma on this day of her birth I advise you all of the gift she gave me of her strength. A brave 19 year old girl who left her family and her home to follow her husband to a new world called America. Not knowing a sole or the language, she managed to raise 3 children and taught herself English without the help of bilingual signs or English as a second language course. On this day I honor strength of character and the quest for happiness be it within the marriage relationship or outside. Happy Birthday Grandma.

Family Court vs. Supreme Court
Which is the proper venue?

To all of you unfamiliar with the judicial system the question of what forum to bring an action can be quite confusing. While Supreme and Family Court have concurrent (the same) jurisdiction over many matters there are some cases which can only be brought into one or the other.

Supreme Court contrary to its name is the lowest court in the State system. In NY the next highest court is the Appellate Division which hears appeals from the Supreme Court and the the highest Court in the State is the Court of Appeals. Under the state court system lies the county courts consisting of Family Courts and District Courts.

One cannot obtain a divorce in our Family Court system here in NY. A divorce action must be commenced in Supreme Court. From there it could proceed on appeal to the Appellate Division and rarely but not unheard of can go to the Court of Appeals for specific disputes.

Once a case arrives int he Supreme Court system it cannot have any matters heard at the same time in Family Court. Once the Supreme Court matter is resolved however, many of the issues resolved in Supreme Court may be enforced in Family court as well as in Supreme Court.

Family Court which is sometimes referred to as "the people's court" does not require that petitioners be represented by an attorney. In fact none of the courts can require representation by counsel however, the process of the system makes it very difficult for a pro se litigant to represent themselves in any court other than in family court. Most times the issues found in family court revolve around support, and custody disputes between unmarried couples or couples who are no longer married.

While having an attorney represent you in any matter where there are legal issues is always desired, family court is really the only court that lends itself to the assistance of the pro se litigant. Procedures are usually more relaxed in family court and many times cases are not heard by judges but by hearing examiners who possess the same powers of enforcement as a judge with the exception of doling out jail time in the event of a contempt proceeding.

While most attorneys do practice is family court, it is usually their preference to have cases heard in Supreme Court. Procedure and protocol are usually more attorney friendly in the Supreme Court and sometimes it is more expeditious to bring emergency relief in the Supreme Court as opposed to Family Court which usually has a six week wait period from the filing of the petition to the hearing date.

Although it is not mandatory, one unfamiliar with the legal system should be very wary of entering any of the hallowed halls of justice without proper representation. One misstep could cost you thousands in the long run; much more than the price of competent counsel. In certain circumstances failure to have counsel can not only ruin a litigant financially but it can devastate a family and negatively impact parental relationships with children. Think carefully before deciding to go it alone.

Beware of the Mediation Process

Anyone who reads this blog knows I am a big proponent of Mediation, and I have written on the subject many times. The law at present does not require Mediation to be done only by licensed attorneys. Anyone can hang a shingle and declare themselves a mediator. Therapists, social workers, retirees, anyone and everyone who sees this as a potential source of new income is declaring themselves a mediator.

Clients who have entered my office and thought my fee was high for this service, have returned to me with agreements written in appalling condition. These agreements would guarantee the parties a lifetime of family court proceedings to flush out the many ambiguities and missing provisions of these so called agreements.

Such is the arrogance of these mediators to advise these clients that I a licensed attorney who has been practicing matrimonial law for some 23 years doesn't understand the process and is merely attempting to make this more complicated than it should be!!

The process is complicated but in a practice such as mine it is streamlined in such as way as to avoid unnecessary contact with the court after the agreement is executed. My agreements are about 60 pages in length and cover all contingencies. Here is a hint: if your agreement has only about 20 pages in it, you are missing an awful lot! If it has less than 20 pages be prepared to become a staple at the local family courthouse, because unless you and your former spouse are excellent at communication and compromise you will soon find that such intervention will be necessary due to the failings of your cheaply obtained agreement.

Most people do not believe in the phrase that "you get what you pay for." In many instances it is untrue, but when it comes to a dissolution of your marriage and the future of your financial stability, not to mention the welfare of your children,
you should heed the warning.

Would you put your trust into the hands of a particular surgeon because his price was the cheapest or do you want the very best in the field? The same should apply when dealing with all major decisions in your life. Divorce is a major decision. Be informed and chose your avenues wisely. There are bad apples in every field and charlatans eager to bleed you as well. Get referrals from sources you trust, investigate the attorney you use and use someone who has a license on the line. Your future depends on your choices.

Oh The Misery

Going through a divorce is miserable. It is the break up a relationship. It is the dissolution of a marriage and that is never a happy event. I as your attorney know and acknowledge the pain you are feeling. I understand your mental frailty and it is up to me to keep a level head when you cannot. It is up to me to help you make decisions and give you sound advice when all of your friends tell you about their acquaintances who have done so much better than I am telling you that you will do in court. It is up to me not to sugar coat your situation and at the risk of being called cold and unfeeling it is my job to protect your interests. It is true that I work for you, but I am an independent contractor in the sense that I decide how to proceed with your case. Most of you are co-operative and are pleased to know I am on your side and have your best interests at heart. You are respectful to my staff and grateful that our knowledgeable office is doing everything in its power to help get you through this tough time. Most of you also know you are not our only client and understand that there are delays which cannot always be avoided and that the judicial process itself is slow going.

Some of you though, are the perpetual victim, and to those of you I address this post. Being nasty to my staff is counterproductive to your case. Refusing to pay your bill and insisting that I understand your financial situation and stating that you cannot pay for services already rendered will not endear you to me, or make me worker harder on your case. I need to pay my staff and my bills, this is not a not-for profit organization, it is a law firm. If you want pro bono assistance put your name on a list and wait your turn. Do not think you can avoid responsibility for your own actions or behaviors by saying that I "did nothing" for you. If you are unhappy with your result chances are you did something contrary to my advice or that you failed to understand that sometimes the judicial system does not render a "just" decision but a decision meant to make everyone unhappy for entering their hollowed halls seeking a result they should have achieved on their own without court intervention.

Divorce is not easy, but biting at the hand that reaches out to help you is not only ill advised, it is just plain stupid. If you want to blame someone look in the mirror chances are you are the problem not your lawyer.

Back to School, Back to Work, Back to Business

I don't remember where I first heard the Summer time referred to as the "Silly Season." I think it may have been a quote from a Fitzgerald novel since I have retained many phrases in my vocabulary from that genre. Summer has always meant that to me things were not to be taken too seriously, it was a time to relax and recharge our batteries after a grueling winter and lay back and enjoy family time. Many years ago when I first started practicing law the courts literally closed for most of August in that most judges took off for the summer and after the 4th of July nothing much went on until labor day. I have pretty much retained that mind set refusing to wear stockings after June 15th and keeping my sandals (my special court sandals) on until the chill of September required closed toe shoes.

Though I am resisting the more restricted footwear, I have delved back into practice this week as I trotted the kids off to school I followed the yellow brick road back to the courthouse and am set for the fall business of divorce.

Many times I have been asked when my was my busy season and the two cycles which are pretty much constant are the middle of September and the middle of January. As the kids head back to school their parents realize that Fall should bring a new lifestyle and that may not involve the other parent any longer. Now before the vigor of the holidays starts to kick in it is time to clean house and sweep out our lives.

As your lawyer, and your confidant I stand at the ready saying goodbye to the Silly Season and hello to responsibility. See you in Court.

No Vacation for My Lawyer
I know I have ranted before about client's not wanting to pay for their legal services which have already been rendered. I continually ask them if their own employers argued with them before they got their paychecks each week, however the concept continues to allude those in divorce who feel their divorce attorney is an entitlement and doesn't need to be paid by them once an action has started and an initial retainer has run out. This week a new wrinkle was added to this rant of "why do I have to pay you when I don't have the money." It is the statement that how dare I take a vacation when my client can't even remember the last time she had one and how nice it is to be me!

Can anyone ever recall telling their surgeon that he has no business taking a vacation when his patient needs an operation or do we all just schedule our surgeries around his schedule? I know that two of my children were delivered early to accommodate my doctor's schedule and I was alright with that.

For the first time in my career I was asked to justify my vacation to a client who didn't want to pay me for the balance of the work I had done for her. Beside the fact that she got an excellent deal, which she will not realize for at least a few years down the road, her legal bill was not astronomical compared to what her husband paid his attorney and her matter is all but finished. Still she ranted about my horrible staff(I hope someday she needs another lawyer and hires someone else so she can experience a horrible staff)my mean partner who had the audacity to ask her to pay her bill from monies we were holding on her behalf and blasted me for not calling her myself while chastising me for taking a vacation!

Well hear this all new and potential clients; I expect to get paid for my services in a timely manner. If you can't pay me, find another lawyer. If you are unhappy with my representation, find another lawyer. If you are unhappy with my staff, find another lawyer. If you feel your attorney should not take vacations if you cannot afford to take one, find another lawyer.

Hitting Too Close To Home

During a recent telephone conversation with an adversary of mine, she mentioned that my client should read my book. I found the comment odd but didn't ask how she knew about my book let alone some of the things mentioned within its pages. I didn't have to wait too long to find out the answer to this question. In my office last week during a deposition of the parties in this case, her client whips out a copy of book and brandishes it in the nose of my client(her soon to be ex husband) and tells him to read my book. She babbles on about how right I am about motherhood and screams at my client that he is alienating her from her children(adult children)and then looks at me and says she understand me much better now.

Needless to say it was a shocking experience especially in light of the fact that she informed me of her need to pass by the workplace of her daughter just to catch a glimpse of her to insure that she was ok. Anyone reading this lately will know how hard this hit me in that my own son, estranged himself from me and the rest of our family and I too would pass by the place where I knew he was staying in the hopes of catching site of him to insure that he was safe.

Of course there are huge differences in our stories and her children are college educated,sensitive intelligent young women that claim to have valid reasons for their estrangement from their Mom and I have an 18 year old know it all who thinks all my rules are a plot to ruin his life.

My paralegal knowing about the week I had commented on the irony of the incident and asked if I was alright. It all did hit close to home and I felt her motherly hurt and pain. I advised my client it was in his best interest and the interest of his children to encourage some kind of relationship with their mother. I firmly believe that no child should alienate themselves from either parent. A phone call or a card is all that may be required especially since I am not in a position to ascertain the genesis of these deep rooted feelings these young ladies claim to have.

The whole ordeal left me rather drained and I continued to pray for strength and the safety of my boy. Then when I least expected it, he called. He wants to come home, for all the right reasons, or so he says. I am not foolish enough to believe all will be well with our lives from here on out, but he is coming home, and that is a start.

Speaking from Experience Hurts

Bigger kids,bigger problems....we have all used that line and when I get into court and discuss teenage children I unfortunately speak from experience. This year was an awful year for me in many ways. Besides losing some people very dear to me it was the year my son who just turned 18 decided that he was infinitely smarter than I and that my rules were place there to destroy his life.

Handling matters in family court where I saw teens such as my son get reprimanded by judges and spoken to by law guardians. These children had many problems at home many of which stemmed from broken families or dysfunctional environments. Many of these purported juvenile delinquents also came from good solid homes.

This year for the first time I experienced the indignities associated with teacher calls inquiring as to why my child saw fit to cut class after class. Perhaps there are problems at home? I was asked. Thank goodness some of these teachers had known me from my older boy and knew that the problem was not with the family but with the child.

Well we got through high school graduation and we thought the worst had passed. Unfortunately it did not. The rules weren't followed and the boy left after he was told he was no longer welcome. I found the evidence, I've read the facebook account which all teens use as an online diary. Regardless of how many times I have said it my advice was ignored. Once it is on cyberspace anyone can access it and one day maybe a prospective employer will.

Now I sit here waiting for a call that hasn't yet come, tough love they call it. But whom is it tougher on I wonder him or me? Will he call asking for forgiveness and promising to follow the rules? Will he make it out there on his own? Certainly if he could make it I would be happy but at this age the odds are not in his favor which is why I fear for him. Will he make wrong choices or fall into the wrong hands? I am one of the clients I counsel, praying for patience and keeping faith in the fact that my parenting was not lacking and that eventually he will be the young man I know he can be.