Tag Archives: divorce

WHAT HAPPENS TO KIDS – CUSTODY IN DIVORCE

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For most of my divorce clients, their priority is their children. Their first question is often, “What will happen with the kids?” The answer: a lot depends on the parents and whether you can reach an agreement.

Let’s start with the basics. There are two aspects of child custody. Legal custody is the right to make important decisions for the child, like academic, health, and religious decisions. Physical custody is where the child will live and/or spend his or her time. In many cases, the parents share joint legal custody and they also share time with the children according to a schedule that works best for their family. The schedule of sharing time with the children that the parents follow used to be referred to as “visitation.” Now, how parents divide time with the children is commonly referred to as “parenting time,” or a “parenting schedule.”

If the two parents can agree on custody and parenting time, an attorney will put the agreement in writing for both parties to sign. Once signed by both parents, the custody and parenting agreement will become an order of the court.

It is best if you, as parents, can reach an agreement without getting the court involved. Do you want a judge to dictate the times and days of the week you are able to see your children? By reaching your own agreement, you eliminate the possibility of a judge making decisions and imposing a schedule upon your family that you do not want, and/or that does not work for your family and lifestyle.

There are resources that your attorney can provide to help you and your spouse in reaching a custody and parenting agreement. For example, if you and your spouse agree, you can use the collaborative process to negotiate an agreement. Alternatively, your attorney can refer you to a family counselor, or a mediator to assist you in your spouse in reaching a parenting plan that fits your family needs.

But what happens if you and your spouse cannot agree? When you are involved in a contested divorce or custody case in court, and you and your spouse are not able to come to an agreement about custody and parenting time, the court will appoint an attorney to represent your children. Attorneys appointed to represent children, formerly referred to as “law guardians,” are called “AFCs,” attorneys for the children. When the judge is informed that the parties to a divorce cannot agree on custody, the court will randomly appoint an AFC from a list of attorneys trained to perform this role. The AFC is responsible for representing the children. That means that the AFC must meet with the children. The attorney for the child must maintain the children’s confidences just like your attorney must maintain your client confidences. And, the AFC is responsible for advocating for whatever the children would like.

Many parents become frustrated by an AFC, especially when they find out that the attorney for the children is not required to meet with or speak to either parent. It is important to understand that the AFC, does not have any legal obligation to either parent. The AFC is free to determine whether a meeting or discussion with the parents is necessary. An AFC has the discretion to represent the children as that attorney sees fit.

The AFC plays a very important role in the court’s decision-making process. The attorney for the children will report the children’s wishes to the court, and the court will take that into account when deciding custody and parenting time in your divorce. If you and your spouse cannot settle custody, the court must conduct a trial. The judge will hear sworn testimony and receive evidence, and if necessary, the judge will meet privately with the children and their attorney to discuss what the children want. After hearing all of this, the judge will decide custody and parenting based upon the “best interests” of the children. For further information about how the court determines the children’s best interests, click here.

DIVORCE MYTHS DEBUNKED – PART 1

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Everyone knows someone who is divorced. But not everyone knows what will happen in your divorce. Every divorce is different.  Your divorce is not like your neighbor’s it will be based upon the particular facts in your situation. You definitely can’t believe everything you hear! These are a few of the divorce myths that I hear most often.

MYTH #1: I MUST BE SEPARATED BEFORE I CAN GET A DIVORCE.

This is false. You do not have to be physically or legally separated from your spouse before you can get divorced. In New York State, you can get divorced on the grounds that there has been an “irretrievable breakdown” in the marriage for a period of 6 months or more, and you no longer wish to be married. This is often called the “no fault” grounds for divorce. That means that you are not claiming that your spouse committed some act that is the reason for divorce, just that the marriage is broken.

If you and your spouse can agree on all issues necessary to resolve your divorce, you can get an uncontested divorce, without either of you going to court.  Click here for more information about uncontested divorce.

Even if you have to go through the court process because you and your spouse cannot agree on everything, you can still get divorced based upon an irretrievable breakdown of the marriage. You do not have to claim that your spouse is at fault for the divorce, and you do not have to be separated for any period of time before filing for divorce.

MYTH #2: I CAN’T LEAVE THE HOUSE BECAUSE I WILL BE ACCUSED OF ABANDONMENT.

This is a misleading myth. You can leave the marital residence without waiving any rights you have with regard to the home or the property that you have at the home.

“Abandonment” is one of the grounds that can be asserted to get a divorce in New York. To allege abandonment, you must state that your spouse abandoned you for a period of 1 or more years. However, since the law allows you to get a divorce based upon the irretrievable break down of the marriage for a period of 6 months, it is now uncommon for people to allege abandonment.  Most divorces are based upon an irretrievable breakdown of the marriage.

*It is important to note, however, if you have children, leaving the marital residence can have an impact on custody in the divorce.

To be safe, it is best to consult with a lawyer before leaving your marital residence.

MYTH #3: THE MOTHER GETS CUSTODY OF THE CHILDREN IN A DIVORCE.

This is false. Custody of the children is decided by a judge based upon the best interests of the children. Custody can also be agreed upon by the husband and the wife.

How will the judge decide custody?

A judge will consider the specific facts of your situation before making a decision about custody. The types of things that the judge will consider are: maintaining stability in the child’s life, the wishes of the child, each parent’s fitness and ability to provide for the child’s intellectual and emotional development, the willingness of each parent to foster a relationship with the other, each parent’s past performance, and the quality of the respective home environments.

A court will also consider the child’s wishes. However, the child’s wishes are not determinative. When considering the child’s wishes the judge must consider the age and maturity of the child and the potential for influence having been exerted on the child by one of the parents.

The judge will also take into account financial status and the ability to provide for the child.

Perhaps, the most important thing the judge will consider is the quality of the home environment and the parental guidance the custodial parent provides for the child.

What does “custody” mean?

A word of caution: there are two aspects of child custody.

  • Legal custody is the right to make important decisions for the child, like academic, health, and religious decisions.
  • Physical custody is where the child will spend his or her time, or live.

In many cases, parents share joint legal custody and they share time with the children (also called “parenting time”) according to a schedule that works best for their family.

Don’t believe everything you hear!

There are many more common myths about divorce that clients repeat to me.  Friends and family may try to be helpful by giving you their advice.  However, your situation is unique.  It is best to get (and follow) advice from an experienced divorce lawyer before you make any decisions about your separation and/or divorce. Call me for a complimentary initial consultation by phone or video conference: (315) 216-0176.

 

HOW TO GET YOUR DIVORCE DONE DURING A PANDEMIC

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All too many families have been stretched to the breaking point, both emotionally and financially, as result of the ongoing pandemic. While the number of couples seeking a divorce has increased, the court’s ability to move divorce and family law cases through the legal system has decreased. As a result, many couples who have chosen to pursue the traditional court route for getting divorce find themselves stuck in limbo and extremely frustrated wondering when they will ever have closure. The good news – there are options for staying out of court, saving money and getting your divorce done!  Here are three alternatives that you and your spouse might consider.

  • The Back of the Napkin. The simplest, quickest and least costly way to getting divorced is for you and your spouse to sit down and hammer out an agreement. An agreement scribbled on a piece of paper, or the back of a napkin, would not be enforceable in court. However, if the two of you can reach an agreement on all of the issues by talking it out, a lawyer can draft a legally enforceable agreement for you both to sign, and then prepare the paperwork necessary for an uncontested divorce, without either of you having to appear in court.

 

  • Collaborative Divorce. This is a relatively new way for people to get divorced. The term “collaborative divorce” may sound contradictory. It doesn’t mean that you and your spouse need to be best buddies to get divorced using this process. You just need to agree that you want a peaceful divorce, to stay out of court, and to follow the collaborative process .  Collaborative divorce is a process in which both parties and their respective attorneys contractually agree to settle the issues in the divorce without getting the court involved. The two of you and your respective lawyers meet together in a series of meetings to work through and come to an agreement on all of the issues that need to be settled for you to get divorced. It is important to note that to pursue a collaborative divorce, both parties must hire a collaboratively trained lawyer.  Click here to find a professional in the CNY area.   This approach to divorce focuses on each spouse’s needs and wants and finding creative, mutually agreeable solutions to settle the divorce.  If you choose the collaborative process you are not at the mercy of the court’s schedule or the decisions of a judge.  Instead of letting a judge decide your what happens in your case, including the division of  your property and debt, and the fate of  your children, in a collaborative divorce you control the outcome and how long it takes to get there.

 

  • Divorce Mediation. Mediation, like collaborative divorce, is a cooperative process in which the two of you work together, with the assistance of a neutral mediator, to reach a resolution and an final agreement. One key difference between mediation and collaborative divorce is that in divorce mediation, the two parties usually do not bring lawyers to the meetings with the mediator. However, you will each need legal advice and knowledge of what the court would decide in your situation. The mediator must remain neutral and cannot give either of you that advice. Therefore, if you chose mediation, each of you will be advised by the mediator to separately consult a lawyer to give you legal advice, and advice about what might happen in court. It is a good idea for you to get legal advice (1) prior to negotiating your divorce agreement, and (2) after the agreement has been reached, but before you sign your agreement.

Any of these three options for getting divorced will keep you out of the court system and get you divorced more quickly. As an added bonus, your divorce will be private, no one but you and your attorneys will know your business. Best of all, your divorce will be peaceful and without the fighting that often goes along with divorce court.

With all three options, both spouses must agree to stay out of court.  Both spouses must also agree on process they will follow.  In other words, if your spouse will not agree to follow one of these paths, you will have no choice but to go through the court system to get divorced.

I am trained and experience in all of these and can get your divorce done without going to court. Give me a call to discuss your options.  (315) 216-0176.

COLLABORATIVE LAW

DiPoala Haber Law Can Help You Divorce Through The Collaborative Divorce Process

There are options to pursuing your separation and/or divorce that are less destructive than the more familiar court process. One of them is the Collaborative Process.

Keeping Your Family Out of Court and Minimizing Adversity

The essence of Collaborative Process is the shared belief of the two divorcing spouses that it is in their best interests and the best interest of their family is to resolve their differences with minimal conflict.  In the Collaborative Process both parties and their respective collaboratively trained attorneys work together in a series of meetings to settle the issues necessary to resolve their separation and divorce.  Syracuse lawyers Lisa DiPoala Haber, Esq. and Megan P. Smith, Esq. are trained and prepared to help you protect what is most important to you and to get divorced using the Collaborative Process.  Collaboration is accepted world-wide as an effective alternative to litigation for couples preferring to resolve issues of separation and divorce without going to court.

Benefits of Choosing the Collaborative Law:

  • privacy
  • the parties control the outcome of their divorce
  • preserves and protects your family and your financial resources
  • the Collaborative Process often takes less time and saves money

Control Your Outcome in Your Divorce

In the Collaborative Process the parties agree to pursue a conflict resolution process that does not rely upon a court-imposed determination. The process relies instead on an atmosphere of complete honesty, cooperation, integrity, and utmost professionalism. As participants in the Collaborative Process, the parties and their attorneys value protecting the privacy and dignity of all involved. When choosing the Collaborative Process to resolve your separation and divorce you work for what you believe is the most constructive and acceptable agreement for both you and your family.

Lisa DiPoala Haber, Esq. and Megan P. Smith, Esq. Will Guide You Through

Lisa DiPoala Haber and Megan P. Smith are trained in the Collaborative Process.  They are members of the CNY Collaborative Law Professionals and have formed important relationships with their colleagues in the field to effectively help guide you through divorce using the Collaborative process.  If you and your spouse agree to pursuing divorce, or any other family matter, through the Collaborative Law process,  our attorneys will provide you a list of the CNY Collaborative Law Professionals with contact information. In addition, if you have questions about the process, she would be happy to discuss them with you by phone.

Call DiPoala Haber Law at (315) 412-0447.