Frequently Asked Questions About Divorce & Family Law
Long Island's largest divorce and family law firm has the answers
The attorneys at Bryan L. Salamone & Associates, P.C. are experienced legal professionals who stay on the cutting edge of New York matrimonial and family law. When clients talk to us, we listen. These are the most frequently asked questions we hear. If you have additional questions or would like more complete answers, please call us!
In 2010, when New York became the last state in the country to offer no-fault divorce, it became much easier to get the process started. However, as is often the case, spouses who file in haste — and without the advice of an experienced divorce attorney — regret it later, when the complexities of divorce in New York soon become apparent. Read more.
When you and your spouse have no minor children, that eliminates one of the most emotionally-charged issues of divorce. Contentious divorces often get bogged down over child custody and child support, and can drag on for months until those issues are resolved. Without children, your issues are simply procedural and economic. Read more.
In 2010, New York enacted no-fault divorce, which did a lot to speed up the divorce process and lower the cost of divorce. However, a no-fault divorce is not the same thing as an uncontested divorce. Spouses can agree that the marriage is over, yet still fight about every matter they need to resolve. Read more.
If you want an uncontested divorce done quickly and correctly, you need an attorney with experience. There are innumerable factors that can drag out legal proceedings, so your attorney must know how to anticipate impediments and resolve them in a timely manner before they lead to frustrating and costly delays. Read more.
The initial consultation either provides you with a wealth of general information and a handshake, whereby I wish you well, or it results in your retaining Bryan L. Salamone & Associates, P.C. If you retain our firm, be prepared to sign a retainer and give us a check, money order, or credit card. All major credit cards are accepted.
As the largest divorce firm on Long Island, we file 2-5 divorces each morning. We can file your divorce the same day you hire us. The average divorce is served within a week and finished, if very simple, within three months. We can have all paperwork done in one day but it takes the court one-and-a-half to three months to read and grant the divorce. Moderately complex divorces take five to nine months, and the very complex or high-conflict divorces range from 9 to 17 months.
If we prepare your divorce action and file it (whether by summons with notice or by summons and complaint, by order to show cause, or otherwise), we have a certain amount of time to serve it. If we file an order to show cause, the judge tells us how long we have to serve it. Order to show cause must be served by a process server within a few days. If the action is started by a summons with notice or a summons with verified complaint, we have 120 days to personally serve your spouse. If we cannot find your spouse, we can make an application to serve by publication. Nevertheless, our process servers and investigators always find your spouse.
If you are served with an action for divorce, order to show cause, or any Family Court papers, contact our office immediately. Do not pass go. Do not think about it. Hire a lawyer immediately. If we have started this lawsuit on your behalf, your spouse must hire a lawyer. If the spouse does not want to hire a lawyer, the process is actually more difficult for us. We spend most of our time explaining to your spouse the right to hire a lawyer because we represent you and are enforcing your rights to the fullest, without any regard for your spouse. They should be ready for what's about to happen to them and if they are blind-sided they may cause delays in the process.
There are exceptions to this rule. One is mediation, and the other is non-spouses. It is not necessary to serve a spouse in Family Court, and service can be made on a co-parent or another individual. Additionally, there are issues that can be mediated.
If we are going to mediate, we make it clear that we do not represent either party, and if the mediation is unsuccessful, we cannot represent either party in a divorce. If the spouses cannot agree to one single issue, the result is a complete breakdown of the negotiations, with both spouses leaving the mediation table and hiring lawyers. See Divorce Mediation for more information.
With respect to temporary restraining orders, if there is family violence, the Family Court can get you a restraining order immediately, ex-parte. Ex-parte means without the other side having anything to say about it in the first few days. All that is required is for you to come to my office, and we discuss a temporary restraining order with you. We can get an immediate temporary restraining order, whereby one spouse is actually thrown out of his or her own house. There are two main types of temporary restraining orders:
- Stay-away provision — In the best-case scenario, temporary restraining orders have what is called a stay-away provision. A stay-away provision says that a spouse must stay away from the children and/or the other spouse.
- No molest, harass, or annoy provision — The lesser restraining order says that it is a no molest, harass, or annoy restraining order. These restraining orders simply tell one spouse that if the spouse molests, annoys, threatens, or harms the other spouse, the violating spouse will be arrested. They are not as powerful.
The second category of restraining orders simply reinstates the rights that everybody already has. If your spouse is hitting you, he or she will be arrested. Arrest happens with or without a restraining order.
In general, do not go to court alone under any circumstances whatsoever. Contact me immediately if you are going to step one foot inside a court complex. No one should be in a court system without a lawyer. You get much more respect if you show up with a lawyer, no matter what you are doing. You get the most respect if you show up with our firm. We are well-known as a firm that can be seen at court each and everyday. Whoever your judge is and whatever type of case you have, we have done it, and we are familiar in that specific court. Showing up in court with our firm representing you shows the world that you are responsible and that you care about your case.
After a lawsuit (summons with notice, summons with complaint, order to show cause, or even a Family Court petition) is commenced, papers are then served. After a party has been served, he or she must answer. Some answers are more complicated than others.
- If you receive a summons with notice, the answer is simply a notice of appearance from an attorney demanding a complaint.
- If you receive a summons with verified complaint, the answer is then a verified answer together with, most likely, a counter-claim.
- If you receive an order to show cause, there must be many allegations refuted, and often a cross-motion is made. The order to show cause may be seeking temporary restraining orders and immediate relief. The way to answer would be to deny the allegations set forth in the form of a sworn statement or affidavit (the client's side of the story).
With respect to the Family Court petitions, they should be answered. Some Family Court petitions do not have to be answered until the court date and can be answered in person. Never appear in court (Family Court, District Court, Supreme Court or otherwise) without a lawyer. You always do better if you appear represented by Bryan L. Salamone & Associates, P.C.
In the usual scenario in connection with a Supreme Court divorce, an answer is interposed and the issue is joined. At that point, there may be no judge assigned to the matter. The judge is only assigned to the matter in the case of an order to show cause. If it is a Family Court matter, a hearing examiner, judge, or special referee has already been assigned. However, with the regular (garden variety) divorce, no judge has been assigned. At this point, if the action has been started, an answer has been made and a request for judicial intervention should be prepared and served. This is a form under New York Codes Rules and Regulations Section 202. The form must be filed together with a check for $95 made payable to the county clerk. The form most likely requests a preliminary conference. This should be done within 45 days of the answer in a divorce. A preliminary conference is a good way to get the case onto the court's system so that a time frame can be set for the eventual resolution of the matter.
A preliminary conference often creates a very uncomfortable situation for clients. Preliminary conferences are usually only for divorce cases, and they occur after the lawsuit has started and the issue has been joined. During the preliminary conference, clients rarely see the judge. The attorneys show up at various time intervals, discuss the case, and fill out what is called a preliminary conference order. The preliminary conference order is a stipulation/order, which controls the time frame for the entire case.
For example, the average preliminary conference order lists which issues have and have not been resolved. The issues set forth in the average preliminary conference order are as follows:
- Equitable distribution
- Law guardian
These issues are usually marked unresolved. With respect to forensics and law guardians, they are often reserved.
The most important part of the preliminary conference is discovery and deadlines for various exchanges of financial information. Prior to the preliminary conference, a statement of net worth must be prepared, signed, and filed by each party. The statement of net worth is a burdensome financial statement that is often 20 pages long and must be prepared by the clients. Clients prepare the statement of net worth and submit it to their attorneys together with two years of tax returns, W2s, and recent pay stubs. It is our practice to prepare a final and professional copy and see it prior to or at the preliminary conference.
A statement of net worth is needed in all contested divorce matters. Once a statement of net worth is exchanged, the preliminary conference schedules other discovery as follows:
- Notice for discovery and inspection
- Notice for examination before trial
- Appraisals and experts
- An end for discovery and note of issue date
With respect to interrogatories and notice for discovery and inspection, these are very large and burdensome discovery demands.
Interrogatories are over 20 pages long (in many cases), and they ask every single question conceivable. The party who answers the interrogatories must prepare a written response and sign it as the truth. It is our practice to serve interrogatories and to respond to interrogatories in a timely fashion.
Notice for discovery and inspection
A notice for discovery and inspection seeks an incredible amount of financial information from the other side. It is our practice to serve and respond to such demands. For example, when we are representing a spouse, we serve the other spouse a demand for five years' worth of financial statements, such as:
- Bank statements
- Proof of income
- Retirement accounts
This demand makes sure that we have a full and complete financial picture of the parties' marriage so that we can effectively represent our client. It is our practice to assist our clients in responding to these requests when they are made from the opposing side.
Examinations before trial
Examinations before trial (depositions) are question-and-answer periods that occurs before a court reporter in an informal setting. During that time, we ask our client's spouse every question conceivable concerning finances. We will represent you aggressively during these depositions.
Once again, an informal setting is used, either in our firm's conference room or in a conference room in the courthouse. The judge is not present and it is a relaxed atmosphere.
The court determines dates for the compliance conference and a note of issue, which are issued as part of the preliminary conference stipulation/order. The court puts those dates on the conference order to control the final date. At which time, all discovery must be completed and a final conference, whereby the parties will be before the court and either stipulate or settle the divorce or mark it ready for trial. A note of issue marks the divorce as ready for trial.
Uncontested means there are no disagreements. Specifically, there cannot be one single issue or problem between you and your spouse concerning:
- Money divorce-related issues
- Child custody
- Other divorce-related issues
Only a very small percentage of divorces are uncontested. In order for you to consider your divorce uncontested, you must have already discussed all issues with your spouse, and there must be a complete agreement with respect to each and every single issue. Many "uncontested" divorces are handled at a very low rate by attorneys, but if you look at the fine print, you will see that if there is a division of property or children involved, it will not be handled at a flat rate.
We can and will provide you with a true uncontested divorce in a day or two. Have your spouse sign and we'll file it for you immediately. We have a full staff of 10 attorneys and 5 paralegals and we can prepare your uncontested divorce today.
There are two requirements:
- You must satisfy residency requirements.
- There must be valid grounds for divorce.
To file for a divorce in New York State, you must satisfy one of the following residency requirements:
- The marriage ceremony was performed in New York State, and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began.
- The couple lived as husband and wife in New York State, and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began.
- The grounds for divorce occurred in New York State, and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began.
- The grounds for divorce occurred in New York State, and both spouses are New York residents at the time the action is commenced.
- If you and your spouse were married outside New York State and you never lived together as husband and wife in this state and the grounds for divorce did not occur in this state, either you or your spouse must presently be a resident of New York State and have resided continuously in the state for at least two years prior to bringing this action for divorce.
If you do not opt for a no-fault divorce, in order to file for a divorce in New York State, you must have a ground (a legally acceptable reason) for the granting of a divorce by the New York courts. The legally acceptable reasons, or grounds for divorce, in New York are described in Domestic Relations Law §170. They are:
- Cruel and inhuman treatment
- Living separate and apart pursuant to a Separation Judgment or decree
- Living separate and apart pursuant to a separation agreement
Cruel and inhuman treatment
The treatment of the plaintiff by the defendant must rise to the level that the physical or mental well-being of the plaintiff is endangered and making it unsafe or improper for the plaintiff to continue living with the defendant.
You cannot obtain a divorce simply because you do not get along with your spouse ("irreconcilable differences") or because you have arguments or because of an isolated act in an otherwise long and peaceful marriage.
All acts must have happened within five (5) years of the date the summons is filed with the county clerk.
An action for divorce may be maintained where the defendant abandons the plaintiff for a period of one year or longer prior to commencing the action and continuing to the present.
Abandonment may take the form of your spouse physically departing your marital home without any intention of returning for a period of one year or longer, prior to commencing the action, and continuing to the present without any good reason for doing so, and without your consent.
Another form of abandonment is called constructive abandonment, which involves one spouse's refusal to engage in sexual relations with the other spouse continuously for one year or longer prior to commencing the action, and continuing to the present without consent, good cause, or justification.
Another form of abandonment is called a lockout, which involves one spouse's refusal to allow the other spouse into the home continuously for more than one year prior to commencing the action and continuing to the present.
An action for divorce may be maintained where the defendant is imprisoned for a period of at least three (3) consecutive years. The imprisonment must have commenced after the date of the marriage and the defendant must still be in prison when this divorce action is commenced. There is a five-year time limit to start the action, beginning from the time of the completion of the third year of imprisonment.
An action for divorce may be maintained based on adultery, which is an act of sexual or deviate sexual intercourse voluntarily performed by the defendant with a person other than his or her spouse during the course of the marriage.
The ground of adultery can be difficult and expensive to prove because the testimony of the plaintiff is not enough and other evidentiary requirements must be satisfied (the defendant's admission is not enough). You should keep in mind that acts of adultery may qualify as acts of cruelty and entitle you to maintain a divorce action on the grounds of cruel and inhuman treatment.
Our firm cut its teeth on the most sordid adultery cases. We've seen it all and we've prosecuted hundreds of adultery matters to the satisfaction of our clients.
Conversion of a judgment of separation
This ground is not used often. It involves a judgment of separation signed by a judge or referee of the Supreme Court.
To maintain a divorce action, the parties are required to live separate and apart. They must satisfy the terms of the judgment of separation for more than one year after the judgment was granted.
Conversion of a separation agreement
A separation agreement is an agreement between the spouses that sets forth the terms and conditions by which the parties will live apart. The agreement must be signed by the parties before a notary public and filed with the county clerk in the county where one of the parties resides.
If you and your spouse have lived apart for more than one year according to the terms and conditions of a properly executed separation agreement, you may maintain an action for divorce. It may be advisable to consult an attorney regarding this ground for divorce.
No. You can start a divorce and end it in one day (if it is uncontested) based on several grounds. If the divorce is contested, you can start and settle it or go to trial and prevail without being separated first.
Bryan L. Salamone & Associates, P.C. is very competitive, with the following standard fees:
- $3,450 for complex cases
- $1,500 flat rate on uncontested retainer, plus $400 filing fees
- $345 per hour on select cases
To know how much your divorce may cost, contact the law offices of Bryan L. Salamone & Associates, P.C. today. The firm's prices are the most competitive compared to other reputable Long Island divorce and family law firms. This is based on the firm's experience, size, rate of success, and clear focus on divorce and family law only.
"If you need to feel good about yourself by hiring a $450 an hour attorney, we can increase our prices for you. But as attorneys who do this day in and day out, we have become the most successful law firm in our practice area at a rate of $345 per hour." — Bryan L. Salamone
The key to reducing the costs of divorce is to stay out of court as much as possible. The key to staying out of court is being able to communicate constructively with your spouse. In marriages where the relationship is broken, this can be difficult in the beginning. Read more.
Technically, any divorce that settles before a court hearing is an uncontested divorce. But as any experienced attorney knows, uncontested doesn’t always mean there are no disagreements. Some couples have a desire to settle, but the complexities of their lives, their property holdings and their parenting plans require a great deal of massaging before they can achieve a workable settlement. Read more.
A retainer is an agreement between the law firm and the client. The retainer for divorces (unless it is an absolutely uncontested divorce) bills at an hourly rate. The average retainer involves 5-10 hours of legal service, upfront, together with expenses for filing and service of process. The minimum retainer is approximately $3,450 plus expenses. That is a very competitive price.
*Uncontested divorces can be done at a very competitive flat rate.
Because of their discontent with the pace of proceedings, a passive strategy or simply a failure to communicate, parties often decide to change attorneys in the middle of a divorce. Courts do not hold this against parties who shake up their representation. On the contrary, when a case has reached an impasse, courts usually welcome the new attorney's insights, initiative and arguments. Read more.
Yes they are. If the children are in a safe environment, free from emotional and physical abuse, and both parties are able to move on with their lives and pursue happiness elsewhere, that would be a very successful divorce. In our experience, we have seen thousands of satisfied clients a year or two after their divorce enjoying their lives free from the entanglements of marriage. Many of our clients feel that they should have divorced earlier.
When asked, "Are you happier now that you're divorced?" I have never once heard anyone say "No." Everyone is happier after divorce - at least all of the clients I have asked.
Please understand that when clients come through our doors, they are not happy with their marriage. We believe in marriage whole-heartedly, and it is a commitment that should be upheld. Spouses are to be loved and cherished. Usually, we only see the worst. By the time clients walk through our door, they have already moved on in their minds and/or their spouse has moved on. We have rarely seen a divorce occur where the parties truly love each other.
Divorce is a solution when there is no more love and the relationship becomes untenable, unsafe, unhealthy, or otherwise unmanageable. If you have tried everything and are still unhappy, it is often better to take action rather than remain unhappy. We urge counseling; we urge couples to stay together; and we urge our clients to remember why they got married in the first place. Unfortunately, we rarely see clients reconciling and remaining with their spouses for long periods of time. On the other hand, it is very common for us to see clients who have been divorced and who are doing much better in their new lives. Many (in our opinion) seem to be happier, more well-adjusted, and, in many cases, better parents.
There are three types of petitions in Family Court (there are actually many, but these three are the most common) that can or may be made. Petitions are as follows:
- Custody and visitation
- Order of protection
Custody and visitation
It is not always wise to address custody and visitation in Family Court prior to coming to the Supreme Court for a divorce. There are many reasons for that. However, it may be a good idea to start it in Family Court, if custody is a simple matter or if the money is tight.
For example, if you are a stay-at-home mom and you want to make sure that you have the custodial label, do it in Family Court. If custody is going to be a problem or highly contested, do it in Supreme Court. Divorces are done in Supreme Court. Family Court is for people who:
- Were never married
- Were previously married
- Are still married, but wish to have the issues of custody and support handled in Family Court
In Family Court, it is possible to get a law guardian for free or at panel rates. Lately, the pendulum is swinging the other direction. What is happening is that people have to pay for law guardians at regular rates, even in Family Court. A law guardian is a lawyer appointed for the children by the judge. It is this lawyer's job to represent the best interests of the children, as well as the children's wishes. There is a fine line between best interests and children's wishes.
At Bryan L. Salamone & Associates, P.C., we have worked with all of the law guardians usually assigned by Family Court and/or Supreme Court. We are well-known and well regarded by all law guardians and we work very well with them in strongly advocating our client's position as it relates to the children.
For example, after 14 years of age, children can often express their own wishes, and the courts actually bends over backwards to give the children what they want. Incredible. In any event, sometimes a child does not want what is best for him or herself. This is often the case when a child seeks to live with the parent who has a no rules or relaxed rules household. The law guardian treads a fine line between advocating what the child wants and/or what is in the best interest of the child. When children are over the age of 14, the law guardian's job is especially precarious. Courts listen to anyone who is mature, especially if they are over the age of 14. Children over the age of 16 can live with whomever they want, so long as it is not clearly detrimental to their interest.
Pros and cons of Family Court and Supreme Court
In the Supreme Court, the law guardian is often compounded with forensics (a psychiatrist or psychologist) to assist the court in connection with their determinations of custody. In Family Court, there are also forensics. It is usually not a good idea to start a custody battle in Family Court if a divorce is going to ensue. It is better to do it in a divorce, and this can be done by order to show cause or by a simple summons with notice and/or summons with complaint. Later, at the preliminary conference, a law guardian and a forensic expert are appointed.
In the Supreme Court, law guardians are much higher caliber, and there is more attention paid to the parties and children. This attention comes at a high financial cost in Supreme Court.
With respect to support, the Family Court can be a way to start a support proceeding immediately prior to divorce. If you have moved out of the house or your spouse has moved out of the house and you need support for yourself and/or your children, the Family Court may be the place to do it prior to the divorce. Be careful here. We usually obtain a greater amount of support in Supreme Court than in Family Court. However, we must advise you that it takes much less time to get child support and/or maintenance from Family Court. Indeed, it can be done immediately. If the petition is filed and served timely, on the first court appearance, the Family Court asks how much the spouse is making and makes an order of support granting one spouse support from the other and/or granting the children support from the other spouse. This is as good as it gets. It is speedy, and it is subject to reallocation after financial affidavits are prepared.
In any event, the Supreme Court is a better vehicle to obtain support, but it takes much longer. It can be done by order to show cause, but it may take as long as 60 days or more. It is retroactive to the date filed, whether it is in Supreme Court or in Family Court. In Supreme Court, not only can we get you support, but we can also get you maintenance and, most importantly, carrying charges for expenses, such as:
- All utilities
- Car bills
- Health insurance
- Life insurance
- Restraining orders against the transfer and hypothecation of assets
There are law guardians, experts, forensics, and appraisers. A law guardian is a lawyer who is appointed by the court to represent children. Law guardians in Suffolk and Nassau counties are excellent resources for the courts and the parties. A law guardian may be paid regular attorney rates for his or her services. The respective parties and their attorneys argue the pro-rata share of the expense to be paid by each party to the law guardian's fee.
The law guardian may make a recommendation to the judge as to who is the better parent in a custody battle. Our firm works very well with all of the well-known law guardians. We are very well-known and widely recognized for our professionalism and competence, and the law guardians are all well aware of our reputation. We have also been affective in obtaining judgments of custody directly against a law guardian's recommendation.
For example, we have been successful in obtaining custody for our client when the law guardian has recommended to a judge that our client should have custody. And, we have obtained custody for our client in situations where the law guardian has recommended custody goes to our opponent's client and not our client.
Experts and forensics
Experts and forensics are very useful in connection with the business evaluation and/or custody matters. With respect to businesses, we work well with forensic accountants, and we are well-known and widely recognized for our ability to assist forensic accountants in the evaluation of our client's assets and/or the assets of our client's spouse. There are certain assets and businesses that require forensic accounting in order to determine what portion a spouse may be entitled to in connection with a divorce.
In the event of a couple that gets married while one of them is in medical school and later becomes a physician in a medical group, that case would require an expert. In such a case, the forensics would evaluate the spouse's enhanced earning or earning capacity along with the value of the medical practice and the spouse's share in that medical practice as it relates to the divorce.
The spouse that did not go to medical school or become a physician would then be entitled to part of the physician spouse's portion of his/her medical practice. This occurs with many professions including lawyers and other businesses.
We are successful on both sides of the street:
- We have helped spouses with businesses retain the majority of their businesses when their spouse has been less than an equal partner, has been less than supportive, and is not truly entitled to 50% or the customary percentage.
- On the other hand, we have represented spouses that were more than supportive; they were self-sacrificing and exemplary in their selflessness and were entitled to more than the average percentage formula in connection with their spouse's business or practice.
Forensic psychologists/psychiatrists are very important resources for the courts and for attorneys and parties in connection with custody battles. A good forensic expert could assist the courts in determining parental fitness and the dynamics of the parent/child relationship. Forensics is often used in custody matters. Forensics as a whole should not determine the custody case. We have been very successful in using forensics as a tool to prove our client's fitness as a parent and to obtain custody for our client. On the other hand, we have also been very successful in obtaining custody for our clients when forensics has actually recommended to the judge that our client should not have custody.
Once again, there have been cases when the forensic psychologist has reported to a judge that our client was not a fit parent, and we continued to win custody for our client. This is usually an insurmountable task, but it has been done, and it has been done well by the undersigned firm.
Appraisers can appraise the following:
- Real estate
The most common item appraised on Long Island is the marital home. As we all know, homes purchased ten years ago have gone up in value dramatically just to go down and then level off. The average divorce involves one of the parties staying in the marital home while the other party is bought out, or vacates until the youngest child is 18. There are also cases where the parties agree to sell the home and split the proceeds.
In any event, a good real estate appraiser can give us the numbers that we need to settle cases or to win a significantly greater percentage of the equity at trial.
Additionally, there are many issues that appraisers can help with, such as separate property claims, improvements, and other values. For example, if a spouse uses a personal injury award or an inheritance (traditionally separate property) to improve a marital residence by adding a second story, an appraiser can give us several values:
- Value for the residence today
- Value of the residence prior to the addition of the second story
- Difference value, including how much of the appreciation was due to the inclusion of the second story
Therefore, if the house is valued at $300,000 and our client put $30,000 into the house ten years ago to build a second story, a good appraiser could say, hypothetically, that the $30,000 put into the house by our client ten years ago resulted in $90,000 worth of appreciation to date.
Our client would then be entitled to the $90,000 off the top and then 50% of the other value of the home. This is only an example.
Appraisers can turn complex additions into hard and fast numbers for the following:
- Real estate
- Separate property claims
- Down payment issues
- Capital improvements
Amounts can be calculated and divided in the court of law. We work very well with appraisers, and we are well-known and widely recognized by all.
Separation agreements can be a prelude to a divorce. In general, the law provides that if you prepare a separation agreement and file it with the County Clerk's office one year later, it can be turned into a divorce via a conversion.
Why do we rarely recommend separation agreements?
We do not often recommend separation agreements because we've seen that our clients often are better served with divorcing right away.
What happens is a man and a woman show up and enter into a 40-page agreement (depending upon the extent of their assets and the complexity of their marital situation) and they legally separate. From that minute on, they are separated by this agreement. In one year, a divorce should be started, and there will be 15 documents filed at the court (a litany of forms that are needed for a divorce). A divorce judgment is granted on the exact basis and grounds set forth in the separation agreement. However, this doesn't always work out as planned.
The reason this rarely works out as planned is that as soon as the separation agreement is signed, there are many promises that one party has made to the other. Additionally, each party can receive income or assets (depending on how the agreement is worded), and the other party does not share in this income or the assets. It is my experience and opinion that on 60% or better of these cases, one party is unhappy with the agreement within one year of the agreement being signed. The dissatisfaction causes challenges to the separation agreement. Quite simply, after the agreement is signed, one person is going to be living better than the other. The person who feels they got the short end of the stick often resorts to challenging the separation agreement and seeks additional relief or money at the time the divorce is contemplated. For example, if their cooperation is needed to turn the separation into a divorce, they can procrastinate or ask for something more or different.
When is a separation agreement appropriate?
If you are thinking of a separation agreement, ask yourself the following:
- Why do you want to separate one year before you get a divorce?
- Why not divorce now?
One of the best answers to these questions is HEALTH INSURANCE. If you are contemplating a separation agreement, we will gladly provide you with an airtight separation agreement. We have been doing separation agreements for many years and have done hundreds of separation agreements. All of our separation agreements have been upheld, and none of them have been effectively challenged in courts.
Our postnuptial agreements (a prenup that happens after the marriage) as well as our prenuptial agreements are not successfully challenged. They have been challenged, just not successfully. A good example of this is shown by the founder of this firm, Bryan L. Salamone, Esq., whose pre-nup survived scrutiny by eight separate attorneys to the great disappointment of his now ex-wife.
Anyone can challenge an agreement, and this costs money to defend the challenge. If the agreement says that whoever challenges it and loses pays the other side's attorneys' fees, this is fine. However, that happens after we win the case, and we need to be paid throughout. Therefore, if we prepare a separation agreement for you and then 9, 10, 11, even 12 months later, your spouse decides it was not fair or that he or she wants more, he or she will challenge the separation agreement. We will then aggressively defend the separation agreement. However, until we win the case, we will ask you for our reasonable hourly rate. That must be paid throughout. After the case is won, we will most likely receive a judgment, which forces the other side to pay you the value of our fees (which you have already paid).
As you can see, you will be paying fees for several months to enforce an agreement that everybody signed. Quite frankly, spouses do not always live up to agreements they sign. Unless there is a final divorce, there is always an opportunity to challenge it within the year. In addition, the divorce occurs one year or so after the separation agreement is signed. Based on the fact that only the agreement was signed (one of the 15 documents needed for a divorce), the parties then have to sign additional documents. Lawyers have to get involved again anyway and the party who feels bitter may use this opportunity to attempt to get something more or different from previously agreed.
Enforcement of agreements
Enforcing agreements is common and we are well versed in the law and procedures needed to enforce agreements.
Summons with notice
The summons with notice is generated and then filed with the County Clerk's Office. This document does not require your signature. The county clerk accepts it and receives a check for the filing fee. Thereafter, there are 120 days to serve the summons with notice. We often serve them immediately. Service on a spouse is carried out by a professional process server and an affidavit of service is prepared and then filed in the County Clerk's Office. Your spouse then has 20 to 30 days to answer. When the spouse answers, then the issue is joined, or as we would like to say, the "game is on."
A summons with verified complaint is more elaborate than the summons with notice. It actually states the allegations set forth in the verified complaint. There are many reasons for an attorney to do a summons with notice and/or a summons with verified complaint.
- If we start with a summons with notice, we later have to prepare a verified complaint.
- If you believe your husband/wife is represented by an attorney, we will most likely start with a summons with notice and later supplement with a complaint. This way, we can negotiate the grounds of the complaint and possibly do it in a less costly manner.
- If your spouse cannot be found or otherwise represented by an attorney, we would want to start immediately with the summons and verified complaint, so that only one service of process is needed by a professional process server.
- If your spouse has retained an attorney, we do not have to use a process server to serve the verified complaint.
The order to show cause is a vehicle whereby we receive ex-parte relief immediately. An order to show cause is an emergency application. The order to show cause is a blank order that requests emergency relief, such as:
- Exclusive use and occupancy of the house
- A temporary restraining order
- Immediate custody of the child or children
- Restraint on bank accounts
- Temporary restraining order preventing assets from being transferred
- Maintenance and alimony
- Payment of bills from your spouse (including attorney's fees)
- Payment of child support immediately from your spouse
- Payment of the mortgage and carrying charges from your spouse
- Many other issues
The court reads the blank order that we provide together with the summons with notice and/or the summons with verified complaint, an affidavit (your statement as to why you need an emergency order), and our affirmation showing the legal basis for the order. The court then signs the order and directs (grants) the above relief or rejects it. If the judge grants the above relief, it is done so without hearing your spouse's side of the story. It is then incumbent upon us to immediately serve the order to show cause upon your spouse and have him or her hire an attorney and tell the judge why the relief should or should not be granted. This is a very aggressive way to start a lawsuit. It front loads all of the work and at this point, we have started your case in the most aggressive manner available under the law. Our firm is well-known for starting divorces using this litigation tool.
Child custody questions
Very few states are willing to award sole custody to the better of two good parents. New York law presumes that frequent, continuous contact with a parent is in the best interest of a child, until shown otherwise. Therefore, New York courts have come to favor joint custody arrangements, except in cases where one of the parents is unfit, and awarding custody would be to the child’s detriment. Read more.
Custody orders are permanent only until the court changes them, so they are subject to modification when necessary. Of course, courts are busy and the last thing a judge wants to do is micromanage your parenting time. If you or your spouse wants to request a modification of a custody order, you have to show a substantial change in circumstances that make a modification necessary to promote the best interests of the child. Read more.
Property division questions
In most circumstances, the marital home is subject to the same equitable distribution process as the family car. However, with the home, the court recognizes stakeholders in addition to you and your spouse: your children. Read more.
Yes. We do this all the time through the discovery process, with the use of subpoenas, forensics and investigators. We have the resources to reach out with our team of 10 attorneys to experts to discover assets and cash through discovery devices. We have opened safes and safe deposit boxes with court orders. We have subpoenaed customers, vendors, accountants, relatives' employees, original loans, leases and contracts. We have the resources and the legal muscle to get to the heart of any financial maze.
Hire us today and let us get to the bottom of your spouse's deep pockets.
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We are well-known for aggressive representation of clients in the toughest divorce and family law cases. Contact Bryan L. Salamone & Associates, P.C. online for a free initial consultation with our skilled divorce attorneys. If your case is important, do not e-mail. Call us immediately.