SCRIPT FOR NYSBA PUBLIC SERVICE & EDUCATION VIDEO.

JULY 7, 2005

To be narrated by Mr. Len Cariou.  Star of stage and screen, Mr. Cariou has appeared in the theatrical productions of Sweeny Todd, for which he received the 1979 Tony Award for Best Actor in a musical, Applause and Proof. His movie credits include About Schmidt, Thirteen Days, and The Four Seasons. Mr. Cariou has also appeared on television in such shows as The West Wing, The Practice, Law & Order and Murder She Wrote.

INTRODUCTION

My name is Jacqueline Silbermann and I am the Chief Judge for matrimonial matters in New York State. The information presented in this video was prepared by the New York State Bar Association Family Law Section Committee on Public Service and Education. It is meant to give you very general information and is not a substitute for finding and working with a competent family lawyer.

Every case is different and the information set forth in this video may not be relevant to your situation.

We hope you find the presentation helpful and thank you for watching.

Part 1: HOW TO FIND A LAWYER AND WHAT IT WILL COST

Finding the right lawyer is perhaps the most daunting but most important part of the family law process.  You will likely receive unsolicited advice from all sources--such as family and friends, but the most important person in the process is your family law attorney. 

For most, the primary concern when searching for a matrimonial attorney is the cost. A straight hourly rate fee arrangement is the most common type of fee structure.  Here, your lawyer requires you to pay part of the fee in advance, or “up front.” This is called a retainer. This “retainer” is a deposit or down payment to make sure that the client is prepared to pay for the lawyer’s time.  The size of the retainer will vary from case to case and lawyer to lawyer.  Of course, your individual financial situation, and the experience, reputation and ability of the lawyers performing the services usually determines the amount of retainer that the lawyer will request.  For example, if you have substantial wealth, and you are in a child custody battle with your spouse, chances are your lawyer will want a larger retainer than if you have a situation where the financial issues are simple, there are no issues concerning any children, and you only need your lawyer to prepare the documents to process the divorce—the latter is generally referred to as an “uncontested divorce.”

In New York, lawyers’ average billable hours usually range from $150 to $600 per hour, depending on the lawyer.  Of course, every case is different and the fees/hourly rates generally differ in different geographical parts of the State. Divorces can typically cost anywhere from approximately $1,000 plus Court fees and disbursements for uncontested divorces, to tens and sometimes hundreds of thousands of dollars in very complex matters.

In New York, a lawyer must provide you with a written retainer agreement and a Statement of Client’s Rights and Responsibilities.  You should read the retainer agreement drafted by your attorney carefully before you sign it.  In certain circumstances, you may even want to consult another lawyer to review the retainer agreement before you sign. 

In certain cases, the court may order one party to pay some or all of the other party’s legal expenses.  Remember however, that the award of attorney’s fees in such cases is not mandatory or automatic. 

You should ask your lawyer some background questions to get an idea of whether he or she possesses the knowledge and experience you’ll need for your particular case.  Ask the attorney about his or her experience in the specific areas involved in your case.  For example, you may want to ask:

• How long have you been practicing law?
• How long have you been practicing family law?
• Is your practice exclusively family law?
• How do you use associates, paralegals, or a client to keep costs down and enhance you work on cases?
• What client handouts do you have that will help me understand my case and how you can help me with it?

Also ask for an estimate of total charges and a list of services covered in the estimate.  Inquire about what steps your attorney expects to take and how much time (or expense) they might involve.  An experienced lawyer should be able to outline the process for you with a fair degree of accuracy.  Although many cases are resolved as standard “uncontested divorces” with no alimony, property, or child-related issues, many others are completely unpredictable.  Don’t expect a specific dollar amount to be quoted as “the entire fee” in anything but a standard uncontested divorce.  In fact, be wary of an attorney who promises to handle you case for a fixed sum, since it is impossible to tell what will occur in all but the most routine, uncontested divorce case. 

In the last decade, several methods of alternative dispute resolution (ADR) have become popular.  These include collaborative law, mediation, and arbitration.  You should consult attorneys who practice in these areas to determine whether these options are appropriate for you.

PART 2: GROUNDS

Although it may change in the very near future, at this time in New York State you must prove fault to obtain a divorce.  In other words, you must show that your spouse did something to you that the law recognizes as improper, thus entitling you to a divorce.  You must prove one of the following grounds: adultery, cruel and inhuman treatment or abandonment. There are other grounds that you should discuss with your attorney to see if they would apply to your case. Currently, New York State does not recognize the concept of “no-fault” such as irreconcilable differences.  The closest thing that New York has to “no-fault” is obtaining a divorce based upon an executed written separation agreement.  What is that?  The law allows spouses to enter into a written agreement, which must be signed with certain formalities, to resolve issues such as child support, maintenance (formerly referred to as alimony), property division, attorney fees and other issues relevant to your matter and which your lawyer will discuss with you.  If parties live separate and apart pursuant to a written separation agreement for one year, and if they substantially comply with the terms of the written agreement, they can then obtain a divorce.  The parties’ lawyer will be required to make a written application to the court and the court will generally grant the divorce if the application is not opposed.  Divorces based on the ground of living apart pursuant to a written separation agreement are generally not contested by the other spouse. 

Some people do not want to be divorced or do not cooperate in the process and their spouse must prove fault.  That means that an individual has to prove that his or her spouse has committed adultery, was cruel and inhuman (making it unsafe and improper to live together), or that the spouse abandoned him or her.  Abandonment can be physical abandonment, where the spouse left the residence without the consent of the other spouse for a year or more with no intent to return, or that the spouse committed sexual abandonment for a year or more.  In order to prove this ground, an individual must show that the spouse could physically engage in sexual relations, but refused to do so despite repeated and continuing requests. 

PART 3: CUSTODY/ACCESS – THE CHILDREN

The end of your marriage is difficult enough.  But, if you and your spouse have children, the complications and ramifications can be enormous, and usually don’t compare to the property considerations that the two of you have to face. 

The way that you and your spouse handle the children during the course of you divorce proceeding will have an immeasurable effect on the rest of their lives.  Studies have shown time and again that it is possible to minimize the effects of a divorce or separation on your children by communicating and cooperating with one another.  Even if you are only able to communicate and cooperate when it comes to the children, every effort should be made for this to happen. 

Your lawyers should explain the different variations of legal and physical custody to you at the outset of the proceedings.  In many situations you and your spouse will have to decide whether or not joint legal custody is an option for the both of you.

Joint legal custody essentially means that major decisions affecting your children including medical treatment, educational decisions, mental health and other important concerns will be discussed and decided upon together.  Unless specifically stated in your agreement, neither of you will have final say and the two of you must agree upon all of these major decisions and considerations

Even in a situation where the two of you share joint legal custody, it is common for one parent to be the primary residential parent. This means, essentially, that the children may reside with one of you more often than the other, but both of you still have joint legal custody and all of the rights that go along with that legal status. 

In addition to rights, there are significant obligations that each of you will have if you agree upon joint legal custody.  It is assumed, when the two of you reach an agreement on joint legal custody, that you are able to communicate and effectively cooperate with one another when it comes to your children.  In order to have an effective joint custodial arrangement, both parents must be ready willing and able to deal with one another on a regular basis and keep an open line of communication at all times. This assumption is extremely important in New York and is the cornerstone of joint legal custody. 

You can be creative with regard to custody and access to both parents.  You can be flexible with regard to the schedule of access that both of you will have to the children depending upon your job demands or your lifestyles.  While weekend and midweek contact with the non-residential parent is typical, you should both consider maximizing the amount of contact that the children have with both parents.  Remember, Courts and experts believe that children should have two parents, even in a divorce or separation situation.  This basic principle will impact any decision that a Court has to make regarding your children. 

It is typical for a non-custodial parent to have visitation or access to the children on alternating weekends and during the week, as well as half of the child’s non-school time.  However, and again, the two of you are urged to come up with a workable solution that best fits your particular situation.  Please remember that children are not just assets to be divided.  Dealing with them in that way will surely maximize the pain they must withstand throughout the process, and perhaps, even longer. 

As I mentioned, if the two of you are unable to decide on what is best for your children, a judge will.  Typically, a judge will appoint a law guardian or a lawyer whose job it is to represent the interests of your children.  Yes, another stranger.  It is also typical, in some situations, that a judge will appoint a mental health professional to conduct a forensic analysis or your family to make certain recommendations to the Court regarding custody and access to the children.  These professionals, while not judges, do have a good deal of influence with the judge.  In many cases judges count on their professional experience and training to assist them in making a determination regarding custody.  The forensic process is also fraught with pitfalls.  Yet, while far from perfect, it is the only real way that a Court can try to get “inside” the family dynamic.

Most judges and lawyers will tell you that once you embark upon a litigated custody case, the effects are quite damaging and sometimes irreversible.  Imagine having your children interviewed by the judge or by their own lawyer.  Imagine further that the children may, depending on their age, be subjected to meeting with the forensic doctor to be interviewed one, if not several times.  Picture the custody trial as you take the stand to testify against one another and call witnesses against one another.  Aside from being unpleasant, a contested custody trial can permanently damage you ability to communicate with the mother or father of your children.  The bitterness of such a proceeding has a far-reaching impact.  You must ask yourself if such an undertaking is really in your child’s best interests.

PART 4: CHILD SUPPORT

In New York, children under the age of 21 are entitled to be supported by their parents according to the parents’ income and ability.  The Child Support Standards Act governs child support.  The Child Support Standards Act contains a form calculation of child support based upon the income of the parents and consists of four mandatory parts: Basic support, child care, health insurance and health expenses not covered by health insurance.  Support is paid to the parent who has physical custody or primary residence of the children (the custodial parent) by the other parent. 

Income is in most cases determined using the parent’s most recent income tax information and then deducting F.I.C.A. (Social Security and Medicare) tax paid.  If a parent is not working to their ability, income may be imputed, or added, to their actual income in the determination of their support obligation. 

Basic Support is in most cases determined by applying the following percentages to the income of the non-custodial parent for their children living with the custodial parent: 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. These percentages are generally mandatory as to the first $80,000 of combined income and thereafter it is based upon the income and lifestyle of the parties.

For the other three mandatory parts of child support, the incomes of the parents are combined and each parent’s respective share of that combined income is calculated as a percentage of the combined income.  This is called the pro rata share of income, and the parents will in most cases share the costs of the other mandatory parts of child support. 

Child Care consists of the costs to provide care for the children while the parents are working or in school so they may be able to obtain work.

Health Insurance is the cost to either parent to add the children to a health insurance plan.  Health Insurance includes hospitalizations, office visits, emergency room treatment, prescription drugs, dental costs, braces and counseling. 

Health Expenses not covered by Health Insurance include co-pays for office visits, testing, prescriptions and other health costs which health insurance does not cover either in full or at all. 

The total of these four mandatory parts is called the Presumptively Correct Child Support Amount. 

If either parent disagrees with the Presumptively Correct Child Support Amount, they may seek a deviation from that support amount by presenting proof to the Court that the support amount is unjust or inappropriate.  Also, the parties may agree to set a different amount of support, which agreement must explain reasons for the difference, but this agreement is subject to the approval of the Court before it will be made part of the Court’s order. 

In addition, parents may be required to contribute towards education expenses of the children.

The obligation to pay child support ends when a child turns 21 years old, but may end sooner if the child becomes self-supporting, gets married, joins the armed forces, leaves the home of the custodial parent or in some cases if a child 16 or over unjustifiably refuses to sustain a relationship with the non-custodial parent. 

PART 5: MAINTENANCE

In an appropriate case, the Court has the authority to order the party with the higher income to pay to the party with less income an amount of money as maintenance (formerly referred to as alimony) for a fixed or indefinite period of time.  The amount and duration of maintenance are based upon matching the facts of the particular case to a series of factors set forth in the Domestic Relations Law. 

The statute sets forth the general guidance for the award of maintenance for either a fixed or indefinite period of time by stating that the award should be “in such amount as justice requires, having a regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property and income to provide for the reasonable needs of the other and the circumstances of the case of the respective parties.”

The statute also sets forth some 11 factors which the Court must consider in determining the amount and duration of maintenance which include the following:

• The income and property of the respective parties including marital property distributed in the divorce;
• The duration of the marriage and the age and health of both parties;
• The present and future earning capacity of both parties;
• The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore;
• Reduced of lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
• The presence of children of the marriage in respective homes of the parties;
• The tax consequence to each party;
• Contributions and services of the parties seeking maintenance as a spouse, parent, wage earner and homemaker, and do the career or career potential of the other party;
• The wasteful dissipation of marital property by either spouse;
•  Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
•  Any other factor that the Court shall expressly find to be just and proper.

The amount and duration of maintenance are in the sole discretion of the Court.  There is no formula in the statute or case law to determine the amount or duration of maintenance.  The applicant is expected to earn whatever income he or she may be able to earn.  If the applicant is not doing that, the Court will normally impute an appropriate amount of income to the applicant based upon his or her ability to earn, whether or not that amount actually is being earned.  The amount and duration of maintenance will also be determined by the Court in the context of other financial issues such as equitable distribution of marital property, payments to maintain the marital home where children are involved, child support being paid and received, the present and future earning capacity of the parties, the ability of the applicant to become self-supporting at some reasonable level, and the time it may take for the applicant to reach that position based upon the need to obtain education or training to qualify the applicant for an appropriate position.

Except in long-term marriages, or unless there is a significant health problem for the applicant, maintenance is usually for a finite number of years subject to termination earlier by the death of either party or the remarriage of the applicant.  When maintenance is not awarded for a specific term, it is deemed “indefinite,” meaning it is terminable by the death of either party or the remarriage of the applicant.  However, the Courts will often terminate the maintenance at a point when the payor spouse would normally retire or when the recipient can access the recipient’s share of retirement benefits distributed by the Court and/or Social Security benefits.  Court ordered maintenance may be modified on a showing of a substantial change of circumstances for either party.

Maintenance is almost always a taxable event; they payor may deduct the maintenance on his or her tax returns and the recipient must pay taxes on the amount received.

PART 6: EQUITABLE DISTRIBUTION

The property that you acquire with your Husband or Wife, known as “Marital Property,” is divided according to a process called Equitable Distribution.  This does not mean that marital property is divided equally between spouses.  Instead, Courts in New York have the power to determine a fair allocation and distribution of Marital Property.

To understand how “Equitable Distribution” works, three questions must be answered:

• What is the Marital Property of the marriage?
• What is the value of the Marital Property?
• How should the Marital Property be divided between the spouses?

Marital Property is made up of all property earned during the marriage due to the active efforts of either or both parties REGARDLESS OF HOW TITLE IS HELD.  Typically, Marital Property includes property, jewelry, businesses, artwork, retirement benefits and educational attainments earned during the marriage.  All Marital Property will be divided between the parties at the end of a divorce action if a judgment of divorce is granted and can also be divided by the parties by way of an agreement made between them.

However, not all property is Marital Property.  Instead, some property is Separate Property.  Separate Property is defined as:

• Property acquired before marriage or acquired by bequest, devise, or descent, or as a gift from a party other than the spouse;
• Compensation for personal injuries; and
• Property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.

Once the Marital Property is identified, it must be valued.  The date of the filing a court action for divorce is typically the date that assets are valued for purposes of Equitable Distribution.  However, if the asset increases or decreases in value due to the fluctuating market conditions, as in the real estate market, the asset may be valued either as of the trial date or the date of distribution.

For some assets, an expert must be retained to value to asset.  Typically, real estate, businesses, pensions and educational attainments are valued by experts.

Once Marital Property is identified and valued, it must then be distributed.  Courts have the power to equitably distribute property based upon the following factors:

• The income and property of each party at the time of marriage, and at the time of commencement of the action;
• The duration of the marriage and the age and health of both parties;
• The need of a custodial parent to occupy or own marital residence and to use or own its household effects;
• The loss of inheritance and pension rights upon dissolution of the marriage as of the date of the dissolution;
• Any award of maintenance;
• Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having a title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
• The liquid or non-liquid character of the marital property;
• The probable future financial circumstances of each party;
• The impossibility or difficulty of evaluating any component asset or any interest in a business, corporate or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
• The tax consequences to each party;
• The wasteful dissipation of assets by either spouse;
• Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
• Any other factor that the court shall expressly find to be just and proper.

PART 7: DOMESTIC VIOLENCE

It is estimated that more than one million instances of domestic violence occur in the United States each year. Studies have repeatedly shown that one out of three females will experience domestic violence during their lives. In a recent Bureau of Justice Statistics report, the federal government has found that three out of four victims of domestic violence were female and that one-third of all police-recorded violence was family violence. While the problem is both widespread and frightening, victims of domestic violence can and should be encouraged to avail themselves of the protections and safeguards afforded to them under the law.

By virtue of the Family Protection and Domestic Violence Intervention Act of 1994, New York presently has some of the strongest laws on the books to deal with individuals who perpetrate acts of violence upon members of the same family or household. For example, New York presently has in effect a policy of “mandatory arrest” when a police officer has reasonable cause to believe that an individual has committed certain “family offenses,” such as acts of assault, menacing, stalking, violations of orders or protection and the like. The primary directive of the statute is to ensure that when such offenses are committed, a police officer will arrest the offender rather than simply dealing with the matter informally and without putting into place the types of protections that a victim may require.

In that regard, police officers investigating a family offense must advise the victim of the availability of a shelter and other services in the community and to provide written notice to the victim of fall of his or her statutory rights and remedies. The officer is also required to assist a victim of domestic violence in removing personal effects from the home, locating safe havens, such as a domestic violence shelter or the residence of a friend or family member, and by transporting a victim and his or her children to the safe haven. In addition, the police officer must assist the victim in obtaining medical treatment and must provide copies of incident reports to the victim at no cost. Moreover, the police officer must inform the victim of his or her rights to proceed in the criminal court, the family court or both. Finally, as explained above, the police officers’ discretion with regard to arresting the alleged assailant has been severely circumscribed by the statute.

When an episode of domestic violence occurs, the victim has a wide range of choices in terms of court intervention. Acts of domestic violence may be handled in the criminal courts or in the civil courts, such as a Family Court or Supreme Court, or both. In order to streamline this process and to provide the specialized type of services that best address the myriad of issues arising out of an instance of domestic violence, New York State has also implemented the Integrated Domestic Violence Court. The goal of this Court is to allow one Judge to become familiar with the family dynamic so that he or she can best address the complex legal issues, both criminal and civil, that arise when domestic violence occurs.

Regardless of which forum the victim chooses, statutory provisions and court rules require that victims of domestic violence have immediate and open access to the courts in order to seek and obtain Orders of Protection. These Orders may require offenders to immediately vacate the family residence, impose conditions of behavior upon the offender, direct the surrender of weapons, award the victims temporary custody of their children and award financial support. Once an Order of Protection is put in place, any violation of the Order will result in even harsher sanctions being imposed upon the offender, including the possibility of incarceration.

Victims of domestic violence need to know that they are not alone. There are people in their communities, such as police officers, shelter directors, victim’s rights advocates, family law attorneys, judges and court personnel who can and will assist them in stopping the cycle of violence being perpetrated upon them by spouses, partners and family members and who will afford them the full protection of the law. If you think you are a victim of domestic violence or would like to speak with someone about your concerns, please contact the New York State Bar Association at 518-463-3200 or the New York State Coalition Against Domestic Violence at 1-800-942-6906.

PART 8: CONCLUSION

This concludes our overview of the divorce process in New York State. Thank you for watching. Please remember to engage a competent family law attorney if you are party to a family proceeding.