I have handled a large number of divorce cases in my 10+ years of working for myself. I have learned that these cases run the gamut, from very straightforward – the divorces with no children and no marital assets to divide, the divorces involving a Pre-Nuptial/Post-Nuptial Agreement – to the incredibly difficult cases involving, but not limited to, the following:
The following tip is for those clients who have not yet filed a divorce case yet. Anybody who is well-versed in divorce law and Family Court practice should know this: if the issues of custody and visitation are litigated in Family Court instead of Supreme Court, then neither spouse has to pay for the law guardian (i.e., the lawyer who represents the child(ren). Meanwhile in Supreme Court, payment for the law guardian’s services is either paid equally by the spouses – meaning out of their own pockets – or based on the 2 spouses’ grossly differing salaries, the judge in Supreme Court will affix what percentage of the law guardian’s bill each spouse must pay.
If the issues of custody and visitation are litigated in Family Court, where the cost for the law guardian’s services are paid by New York State – then regardless of whether the issues of custody and visitation are agreed to between the spouses or decided at a trial, the final resolution will most likely be adopted by the Judge in Supreme Court who presides over the divorce. It is extremely rare that the Supreme Court judge will disturb the outcome of the proceedings from Family Court.
In New York, a divorce case can only be heard in Supreme Court, not Family Court. Furthermore, once a spouse has filed a divorce case in Supreme Court, then all issues relating to the marriage (e.g., maintenance a/k/a alimony, child support, custody, visitation, division of marital assets a/k/a equitable distribution, etc.) must all be heard in the Supreme Court, unless both spouses and their lawyers agree to hear any specific issue in Family Court. Even in that situation, the outcome of the issue that is resolved in Family Court must be approved by the judge in Supreme Court in order for the result from Family Court to be included in the Judgment of Divorce.
I have seen too many people with children (not my clients, of course) take the advice of other lawyers to file their divorce case in Supreme Court without going to Family Court first. As the divorce case drags along, the bill from the law guardian grows higher and higher.
This is just another example of how I constantly watch out for a client’s bottom line. The advice I have offered is quickly picked up by anyone who works regularly in these areas of law. If you have a high bill from a law guardian or know someone who does, just remember that this could easily have been avoided.
The following case summaries should demonstrate that not only am I well-versed in divorce practice but that I can wear the various ‘hats’ mentioned above with relative ease. In fact, I am utterly amazed at how many lawyers more experienced and older than I do not juggle these multiple roles well at all. Trust me, nothing that is taught in law school or tested on the bar exam can prepare a young lawyer to handle these tough divorce and Family Court cases. Either your lawyer can wear these hats/juggle these roles or he/she cannot. That is all there is to it.
My client Lisa, who lived out of state at the time she hired me, had been married to her husband since 2000. I believe that the overall time they lived together was less than 2 years and by 2002, they were living apart. This couple did not get together from time to time to enjoy ‘relations’ and they did not remain friends. There was no contact whatsoever, which of course always makes me wonder why either of them did not take steps to dissolve the marriage sooner.
After I filed the Summons and Complaint and had the defendant served personally, he failed to file an Answer, failed to contact me, failed to hire a lawyer, etc. Basically, he failed to do anything and probably assumed that his soon-to-be-ex-wife would take care of all the proceedings. If you are trying to get divorced from someone like this, then you have my sympathies. Any experienced civil practice/civil litigation lawyer will tell you that our legal system works most efficiently when all the parties (especially in a divorce case) are working in tandem. But when it is left up to one party to do all the work, it is like trying to walk/run on just 1 leg.
A “default”/”one-sided” case like this really slows down because after the defendant husband was personally served, he did absolutely nothing. At that point, I filed a Motion for Default Judgment, which was mailed to the defendant. Remember that besides the Summons and Complaint and any other documents that the judge orders to be personally served, all other documents in any civil case may simply be mailed to the other side. The most important thing is that I did not wait 1 year before mailing the Motion for Default Judgment to the defendant husband. In all civil cases in NY, after the defendant is served but does nothing (“a default”), the plaintiff only has 1 year to take action. Otherwise, the plaintiff runs the risk of having her case dismissed, which then will force the plaintiff to file the lawsuit all over again, serve the defendant again, etc.
Once the defendant was personally served and failed to ‘appear’ (meaning he failed to represent himself pro se, failed to hire a lawyer, and failed to request an extension of time in order to file an Answer), I filed a Motion for Default Judgment, which was referred to a Judge. The Judge scheduled an inquest (‘one – sided trial’) but he also ordered that I notify the defendant by both certified mail and regular mail. The Judge did this to ensure that if the defendant failed to appear for the inquest, the defendant would have a very difficult time in the future if he decided to reopen this divorce case.
On the day of the inquest, the defendant never showed up. My client appeared with her mother and after I asked her the standard questions that an inquest involves, he granted her the Judgment of Divorce to dissolve their marriage.
I represented Anthony/Tony, who was easily the most ‘prima donna’ of all the clients I have represented in my career. He was the father of the child in the custody and visitation case; from the instant that I met the respondent mother (Diana V.) in Court, I could tell that she was by far the more responsible, mature, and clear-headed parent in this case.
It was only after I was hired to represent my client that I learned, while in Court no less, that he was either taking hard drugs or had recently taken hard drugs. Any lawyer with experience will tell you that one of the most difficult aspects of practicing law is learning about your client’s weaknesses on your own, meaning without your own client having told you beforehand.
I believe that our judge was aware that my client (the child’s father) also suspected that he was on drugs as well or had recently taken hard drugs. Nevertheless, she approved the parties’ agreement to share joint legal custody and she approved the parties’ agreement for the mother to have sole residential custody. I am convinced that the judge did not disturb the parties’ agreement, at least in part, because I had a very good reputation with her. Any attorney who regularly goes to Court and is familiar with litigation knows that the opinion that the judge has of the lawyer will influence the judge’s handling of the case and may even influence the final outcome of the case.
In general, the judge in your case is objective, the most experienced litigator in the courtroom, and in control of all the proceedings. Yes, like most experienced lawyers I have met judges who are temperamental, impatient, and biased when it comes to certain issues. On rare occasion, you will meet a judge who does not have a proper courtroom manner. This is obvious, right? If there are bad lawyers and bad politicians, then of course there are substandard judges as well.
The judge in Tony’s case could easily have not approved the agreement that the parties reached. The judge in a Family Court or divorce case is not bound by the agreement that the parties have reached. If the judge determines that the agreement is not fair or that one party (such as my client Tony) was not fit to share legal custody with the child’s mother, the judge could easily have awarded sole legal custody (as well as sole residential custody) to the mother. If that had happened, my client would only have been left with a visitation schedule.
In the judge’s Order, she compelled my client to submit to a hair follicle test, the cost of which was to be paid by him. Eventually, my client allowed the child to relocate (with the mother) to Florida. This agreement regarding relocation was also approved by the judge.
Even if the parent who has sole residential custody of the child(ren) wishes to relocate to a new location that is significantly distant from the child(ren)’s current residence, the non – custodial parent will be able to block the application to relocate. The rationale that underlies this policy is as follows: even if a person does not have custody of the child(ren), a relocation by the custodial parent with the child(ren) will place substantial financial and emotional burdens on the non – custodial parent’s ability to have visitation with the child(ren).
I have handled a few of these cases but have found them to be straightforward. When I say ‘straightforward,’ I mean that it’s easy to figure out what I have to do. There is paperwork to be filled out and at least 1 court appearance to be made in Surrogate’s Court (in the cases I’ve handled, I have needed to make several court appearances). In the event that you get quoted some ridiculous price from someone else to handle your guardianship case – $7,500, $10,000 and up – please keep in mind that I have written here: these cases are not that difficult.
This was a heartbreaking case because Roxana I. was a woman in her mid-thirties whose IQ was less than 100. She was functional, to some extent, and had even been married in the past. I’m pretty sure that she got married without her parents’ consent and probably without their knowledge. It was both funny and tragic to see both Roxana I. and her twin sister (who was a ‘normal’ functioning person) smoking up a storm each time they came to my office.
After 2 or 3 appearances in Surrogate’s Court, Roxana I. provided her consent for her mother to be her guardian of her ‘person and property,’ as the Order says. The Order also provides that the guardian mother was granted the authority to make medical and dental decisions on behalf of her daughter. In guardianship cases, it is required that besides the guardian, a ‘standby guardian’ and a ‘alternate standby guardian’ be appointed for the person in question, which was also done in this case.
I remember the entire case taking about 5 months, from my initial meeting with the clients to the signing of the Court’s Order.
A domestic violence case is essentially a criminal case. Depending on the charge(s), the client will be charged with either a misdemeanor or a felony. A good example is the crime of assault, which can be charged as either a misdemeanor (assault in the 3rd degree) or a felony (assault in the 2nd degree is a ‘D’ felony and assault in the 1st degree is a ‘B’ felony).
There are some very narrow exceptions in which a domestic dispute will be heard in Family Court. But 95% of the time, these cases take place in Criminal Court.
I have provided the statutory definitions of both assault in the 3rd degree and 2nd degree below. Basically, a client is charged with 2nd degree assault when he/she has caused ‘serious physical injury.’ If you ask me for a good example of ‘serious physical injury,’ let’s say that a stabbing, regardless of how much blood is lost, what weapon/instrument is used, whether the victim had to go to the hospital, will be charged as 2nd degree assault. I have noticed that assault in the 3rd degree is charged when there is little or no bodily injury, despite how hard the client tries to do harm.
In these cases, the issuance of a Temporary Order of Protection is standard – it makes no sense for the client to even argue about it (‘my girlfriend wants to withdraw the case,’ ‘I already made up with my boyfriend,’ ‘we really love each other,’ etc.). Remember that Domestic Violence cases are given extra attention because every once in a while, the client a/k/a defendant leaves Court, then reunites with his/her partner……..and then seriously hurts or even kills that person. For this reason, any reassurances from your lawyer that the case will ‘go away soon’ is a faulty, nonsensical statement. No, these cases do not last for years, but you are wrong to think that they can be resolved in 1 or 2 court appearances.
Based upon what I wrote in the preceding 2 sentences, so long as the victim (which in the overwhelming number of these cases is the female) decides to call either 911, the police or the DA’s office), it is guaranteed that the client a/k/a defendant will be arrested, booked, arraigned and be made to go through the system. Any person who tells you that he/she has ‘connections’ and can get you out of a domestic violence case is 99.9% wrong.
This married client was involved in the typical scuffle/dispute with his wife that takes place when there are problems in the marriage. He was charged with ‘menacing in the 3rd degree,’ which is only a ‘B’ misdemeanor. In a normal criminal case, especially involving a client with no previous criminal record, your lawyer should easily be able to obtain a reduction down to ‘disorderly conduct (which is a violation and not a crime) or even an ‘ACOD’ (an ‘adjournment in contemplation of dismissal’). When an ‘ACOD’ is granted, it means that within the next 6 months, assuming that the client does not get rearrested for an entirely new criminal charge, the original criminal charge(s) will be dismissed, thereby resulting in no criminal conviction, no fine to be paid, no probation, community service, etc.
But even when a client charged with a ‘B’ misdemeanor like 3rd degree menacing, the judge and/or the District Attorney will force the client to undergo some counseling/therapy. This is exactly what happened in Ramon’s case.
Then again, any judge would feel uncomfortable simply granting an ‘ACOD’ or approving a plea to ‘disorderly conduct’ when the allegations in the Criminal Complaint read as follows:
‘On the aforesaid date, time and place of occurrence, the defendant Ramon ______ did place [his wife] in imminent fear of Physical Injury by engaging in the following conduct: the defendant grabbed victim’s hair, pulled her into the bedroom from the bathroom, and then pushed her on the bed. Defendant climbed on top of her, slapped her in the face and held her down by her shoulders. During the physical altercation the defendant stated to victim: ‘I am going to kill you and myself.’ Victim states that her husband’s actions placed her in fear of Physical Injury and she believed he was going to hurt her. The above information was based on information and belief that being (sic) the oral and written statements given to police by victim.’
After being required to take anger management classes and undergoing a psychiatric evaluation (all treatments were paid at the client’s expenses), my client pleaded guilty to ‘disorderly conduct,’ which again is a violation and not a crime. But this case took a total of 4 court appearances and I can assure you that I pushed the case as hard as I could.
The total fine that my client had to pay only came out to $120.00.