Law Offices of Moran and Gottlieb

Guide to Divorce and Separation in N.Y.

Andrea and Steven Gottlieb, the partners at the Law Firm of Moran and Gottlieb, 233 Wall Street, Kingston, New York, have extensive experience in the fields of Matrimonial and Family Law. Andrea Moran and Steven Gottlieb litigate divorces and all matrimonial & family matters in, the Supreme Courts and Family Courts of Ulster, Dutchess, Delaware, Sullivan, Orange, Greene and Columbia Counties. They work closely with private investigators, therapists, and government agencies on behalf of their clients. A Domestic Violence consultant is on staff.

Some Basic Information Regarding Divorce and Separation

UNCONTESTED DIVORCE
If you and your spouse have no children, no real property and no assets, which is common for marriages of short duration, as well as in other situations, you may be able to obtain an uncontested divorce. If your spouse consents or fails to object, the divorce will be granted almost immediately. Back to Top.

MATRIMONIAL ISSUES
If, however, you or your spouse have minor children, assets, such as a house, pension, stocks, interest in a business, then you need more than just termination of the marriage; you need a determination of who should get which asset, where the children will live, child support, visitation, etc. A spouse may also require alimony, which is now called "maintenance." Other issues, personal to your situation, may also require resolution. Back to Top.

SEPARATION
If you and your spouse can rationally discuss a fair division of the assets, child support, maintenance, possession of the marital residence, custody of the children, visitation, etc., and of course, other issues personal to your situation, then you both can enter into a written agreement which lists the agreed upon terms of the separation. This is called a "Separation Agreement." It must be drafted, reviewed and executed by an attorney. Once it is executed, you and your spouse are legally separated. Back to Top.

UNCONTESTED DIVORCE BASED UPON A SEPARATION AGREEMENT
One (1) year after signing the agreement, either you or your spouse can file for a divorce based simply on the ground of "Living Apart Pursuant to a Separation Agreement." This type of divorce is also granted on an uncontested basis because all of the issues have been resolved. The Separation Agreement is incorporated in the judgment of Divorce and becomes not only the basis for the termination of the marriage, but also, becomes the judicial resolution of the issues between the parties. Back to Top.

NEW YORK STATE GROUNDS FOR DIVORCE
There are five grounds for Divorce in the State of New York. New York State does not recognize the so-called non-fault grounds of Mutual Incompatibility, Irreconcilable Differences, or a dead marriage.
The only grounds available in the State of New York are:

1. Abandonment of the plaintiff spouse by the defendant spouse for a period of one (1) or more years;
2. Cruel and Inhuman Treatment of the Plaintiff by the defendant;
3. Living Separate and Apart for a Period of One of More Years Pursuant to Written Separation Agreement;
4. Adultery;
5. Incarceration in a Prison for a period of three (3) or more years;

In only a few situations is the question of whether or not a divorce should be granted an actual issue. In most cases the Courts of the State of New York will grant a divorce when one party makes an appropriate demand, even if the other party aggressively opposes it. It is generally not considered to be in the public interest to keep two people married if they can't get along with each other. Back to Top.

OPPOSITION TO THE GRANTING OF A DIVORCE
But if facts to support any ground for divorce do not exist, you will be denied a divorce in the State of New York, or you could successfully oppose your spouse's application for a divorce. This could occur, for example, if the parties remained living together and no violent, verbal or physical abuse or adulterous behavior occurred, or if they mutually agreed to live apart without a Separation Agreement and have remained apart without committing adultery. Opposing a spouse's application for divorce is generally a tactic to avoid distribution of assets or payment of spousal support or to avoid sale of the marital residence. Back to Top.

CONTESTED DIVORCE
A contested divorce usually means, then, that the parties are fighting over custody of the children, the amount of child support, division of assets, who shall have the marital residence, how the children shall be brought up, a share in the business, compensation for the degree or license earned by your spouse during the marriage, etc. A contested divorce can be extremely expensive. Appraisers must be hired to evaluate the house, other assets, pensions, etc. Expert opinion may be necessary to secure proof of contribution for the purpose of equitable distribution of the marital property. Where custody is an issue, psychological evaluations must be made of the parents and the children. Back to Top.

RESOLUTION OF CONTESTED DIVORCE WITHOUT A TRIAL
It often happens, however, that a spouse who initially insists on being unreasonable, who refuses to participate in rational discussions to terminate the marriage, may after having been served with legal papers and after having consulted with an attorney, consent into entering into a Separation Agreement. Thus, commencing what appears to be a contested divorce does not mean that you cannot enter into a Separation Agreement at a later time and ultimately get an uncontested divorce incorporating the Separation Agreement. Back to Top.

OBTAINING A DIVORCE BASED ON A SEPARATION AGREEMENT WITHOUT WAITING ONE YEAR
It is also possible, if the defendant consents, to file for divorce immediately after signing the Separation Agreement, without waiting for the year. This would necessitate suing upon one of the other five grounds, while incorporating the Separation Agreement into the judgment, but it is frequently accomplished when both parties desire a Separation Agreement and an immediate divorce without waiting for the year. Back to Top.

NON-COMPLIANCE WITH TERMS OF SEPARATION AGREEMENT
A spouse who enters into a Separation Agreement but who fails to substantially comply with the terms can be denied a divorce. Thus, a spouse who is obligated to allow visitation, to pay child support or maintenance and who refuses to do so, can be prevented from obtaining a divorce; of course, the spouse in compliance may obtain a divorce. Back to Top.

PSYCHOLOGICAL COUNSELING
Even if your divorce is amicable, it is a very distressing time. The decision to end a bad and painful marriage can be just as distressful as remaining in a bad marriage. The decision to terminate a relatively successful marriage, or one that has the approval of family and friends, can also be distressful. Often, there is opposition to the suggestion that psychological counseling may be beneficial. The cost, time involved, or the feeling that it is your spouse who needs counseling are frequent reasons offered against counseling. In difficult and emotionally charged situations, particularly where it is your spouse who is behaving in a destructive and angry manner, counseling can be enormously helpful. Children and adults often benefit from short term psychological counseling in these situations. Although you are free to select your own counseling, we also have a number of names for referral. In addition, there is a support group, started many years ago by a client of ours, for people going through divorce or separation. It meets at St. John's Evangelist Church (Rectory Basement) Route 212, Saugerties, NY 12477 at 7:30 P.M. on Wednesday evenings. This is free and there is no professional guidance. But the nature of the meeting is often helpful and often better than the nervous and angry advice offered by your family and friends who be pushing their own points of view as to what is best for you. Back to Top.

MARITAL-LIKE RELATIONS
As to couples who are residing together and are not married, is essential that a written contract be entered into. This is particularly advisable when the relationship is going well. If it should become acrimonious, it may be too late to reach a written accord of expectations, contributions and obligations. Back to Top.

Custody and Visitation

Even when the parents are able to separate in a friendly and cooperative manner, the children will have many concerns. Parents should tell their children about the divorce as soon as they have reached a firm decision. Children should be informed to the extent that is age appropriate. If possible, both parents should tell the children simultaneously. Back to Top.

IN A FRIENDLY DIVORCE
The parents should express their sadness about the breakup of the family because it will give the children necessary permission to mourn without having to hide their feelings of loss from the adults or from themselves. The parents should present the decision to divorce as a solution that the parents reached together, after they had tried every other way they could think of to solve their differences. In this way, the adult can convey the sense that they are responsible, loving parents who remain committed to the children even though they have reluctantly decided to go their separate ways.

Parents should explain honestly that things will change. Life will be temporarily disorganized, routines will be disrupted. One parent will be moving out of the home. The house may be sold, and the family may have to move to a new neighborhood. The mother, if not already doing so, may go back to school or take a part-time or full-time job. In short, the parents must make it clear that the divorce will bring many changes that the whole family will have to face and overcome.

The parents should tell children of all major developments, as the family reorganizes. Children feel powerless at divorce and should be invited to make suggestions in matters concerning them. Adults should seriously consider these suggestions. They should be assured that they will have a say, for instance, in setting up the visiting arrangements. Once the schedule is settled, it should be explained to the children in detail.

The children should not, however, be made to feel responsible for making major decisions. The goal is to involve them appropriately so that they can feel that they are participating in working out a solution to the family crisis. The parents should advise the children that the divorce will not weaken the bond between parent and child, even if they live apart. They need to be reassured that, though parents may divorce each other, they do not divorce their children. The children should be told realistically that everybody will have to work hard to maintain these important connections.

The parents must stress to the children that the divorce is not in any way the fault of the child. They must be assured that the problem existed strictly between the two adults. The children should never be allowed to assume guilt for causing the breakup. The parents must state clearly that the divorce is an irrevocable decision and that the children should not and cannot waste their time and energies in the fruitless schemes and fantasies of bringing their parents back together.

The parents will want to make every effort to keep separate their own hurt, anger, and needs from the needs of their children. Children have a right to their own feelings and should not be asked to take sides or be forced to wander a no-man's, land in the divorce war. Above all, both mother and father must give their children permission to love and maintain a relationship with the other parent. This may be the hardest task of all for the adults, but it can be done. With a caring, courageous effort on the part of each parent, the children, even in the midst of their turmoil, can feel supported and loved. Back to Top.

CONTESTED CUSTODY AND VISITATION
Contested custody litigation is among the most bitter of lawsuits. It is common for one side to feel that the other side does not even want custody, but is just using the threat to force a better financial settlement. Often this accusation is in fact true. Back to Top.

RETAINING A PSYCHOLOGIST
It is very important to get the children into therapy with a psychologist as soon as possible. If temporary custody is awarded to the other parent, you will not be able to do this once court orders are obtained. It is critical to do this as almost the first step if you know or sense that there will be a custody fight. You then need to work with the psychologist and be prepared to follow his or her advice. This strengthens your court case. Having the children in therapy with a psychologist that you feel comfortable with is considered a healthy step in the court system. When the Court has an independent do an evaluation, usually the evaluator will consult the therapist you have already retained. This may assist in getting your point of view across.

Most importantly, the psychologist may be able to head off custody litigation and assist the parties in reading a mutually agreed position. In a serious custody action, therapists, court mental health evaluators, alcohol and drug evaluators, pediatricians, emergency room personnel, the children's babysitters or day care, nursery school teachers and staff, public school teachers, neighbors, old friends, former friends, relatives, and the parties may all testify. The children, if called and if permitted to testify will usually testify privately to the judge in chambers, without the presence of the parents. Back to Top.

JOURNAL
It is important for you to keep a journal, a daily record all events which impact upon your children's lives. Dates, times and places are essential. Your custody or visitation "journal" (a separate notebook) is a daily record of events which impact your children's lives, and which reflect upon either parent's abilities as a caretaker for your children. This journal should be kept on a daily basis, both so that you do not forget important events and so that you are not later accused of erasing events which may or may not have occurred.

You should list both the routine and special events which take place on a given day. While routine items (e.g. preparation of a meal) may not seem important at first, when viewed as part of a long-term pattern of care they take on great significance. Be as detailed as you like, for example your description of a meal's preparation might include a "menu" (to show that your children receive nutritional meals), as well as a description of the children's roles in setting the table, in fixing the salad or dessert, and in helping clear the table (to show that they are taught a sense of teamwork and responsibility).

Your journal should also include statements that the children make, or a description of matters which you and the children discuss. These do not need to be matters directly relating to the custody and visitation issues - in most cases it is not helpful for you to "provoke" discussion in those areas - but may include your children's feelings about you or the other party, as well as their statements about day-to-day occurrences in their lives.

It is very likely that the contents of your journal will be used in court should your case go to trial. Oftentimes, we will utilize it to show your contemporaneous recording of events, or to refresh your recollection on the witness stand. Because of this, you must be careful what you write. Your journal is obviously not the place for you to chronicle your love life, or to apologize for any shortcomings you may feel you have as a parent. It should not contain any inappropriate language or comments. And, while it is proper to write about events or statements which put the other party in a bad light, be careful not to overdo it. The tone of your journal generally should be positive and a reflection on your good points , it should not be solely a "smear piece" against the other party.

We view your journal as one of the most important devices available to assist in your case. For that reason, we encourage you to ask us any questions you have about it. Also, after you have been keeping a journal for a week or two, send us a copy. That way we can offer our comments on what you are doing, and perhaps offer advice on what can be done to improve the record you are keeping. Back to Top.

PHOTOGRAPHS
The old adage "a picture is worth a thousand words" holds true in custody and visitation matters. It is almost always the case that photographs can be used to illustrate some aspect your care and ability as a parent, whether it be to show the Court the physical setting (home, living and sleeping areas, nearby playgrounds, etc.) you provide your children, or the various events and activities which you enjoy with them.

If you do not have a camera, get one. Photograph your home and all its living areas, giving special attention to where the children eat, sleep and play. Take pictures of the yard, any nearby playgrounds or parks, and any other places (e.g. grandparents' house) where the children spend a substantial amount of their time.

Photograph routine events in the children's lives (such as getting off the school bus, or saying bedtime prayers) in order to illustrate how their days are spend and your involvement on a daily basis. Photograph special events, holidays, trips and vacations, and be sure to include your children's friends and extended family (grandparents, aunts and uncles, cousins) in photos of family gatherings. Do not forget to include yourself in many of these photos.

If any "bad" things appear, such as your children having injuries or bruises you should (among other things) take a picture. You should also take steps to preserve any photographs or family albums you already have, so that a record of your past involvement in the children's lives can be shown to the Court. Videos are another means to depict your involvement with the children. One warning: since most video recordings also include sound, be careful that you are not heard "directing" your children about. Our purpose in proving your genuine love and care for your children may be undermined if you are perceived to have "staged" certain events. Back to Top.

VIDEO RECORDINGS
Videos are another means to depict your involvement with the children. One warning: since most video recordings also include sound, be careful that you are not heard "directing" your children about. Our purpose in proving your genuine love are care for your children may be undermined if you are perceived to have "staged" certain events. Back to Top.

AUDIO RECORDINGS
Audio recordings are notoriously inaudible. Do not be surprised if your initial efforts produce only background noise and incomprehensible voices. An audio recording (i.e., a tape recording) of statements or other events may prove helpful in certain circumstances. For example, if the other parent is often drunk, or chronically shouts at the children, a recording of his/her voice may help to prove it. Another common example occurs when parties live apart, and one party uses the telephone to issue vulgarities to the other, or to act unreasonably in terms of visitation.

Extreme caution must be exercised, however, before audio recording is done. There are two reasons for this: First, certain types of recording (eg. a telephone "tap" between two unsuspecting people) are illegal and cannot be used for any legitimate purpose; Second, we want to be sure your recording things does not lead to your "provoking" family conflict or even violence. If it does, and the tape is heard by a neutral listener, you will not gain from it. Back to Top.

RECORDS AND DOCUMENTS
You should begin gathering those records and comments which will demonstrate your caring for your children. Examples of these include pediatrician's bills (to show your attention to health matters), report cards and school correspondence (indicating your involvement with your children's education) and similar formal documents. Other examples of items you should provide are "informal" documents such as cards made for you by your children, artwork done at school, or anything which you feel may give some insight into your children's care and their feelings about things. Indeed, you should not limit yourself to just "documents". For example, a birdhouse built by your children and you may help to tell a story to the Court. Back to Top.

LETTERS OF REFERENCE
In many cases we find it helpful to receive letters from persons familiar with you or your children. These may include neighbors, teachers, babysitters, or anyone else having information which would support your claim. Letters from your parents and family, may be especially helpful, as may those from your employer.

These letters should explain how the writer knows you or your children, and what he/she has observed. The writer may wish to state an opinion as to your abilities as a parent or your relationship with your children, and this is welcome too. These letters are not "evidence". Their usefulness is limited by the rules of evidence which the courts must follow. Their purpose is threefold:
1. To provide us with good idea of what people are likely to say if asked to testify on your behalf. (We will then contact your "references" to obtain further information and, if needed, arrange for testimony);
2. To get people "thinking" about your case, and how to help you. (Oftentimes people will remember helpful facts which would not other-wise have come to mind);
3. To "lock in" a person's comments. Someone's opinion of you is less likely to change at Court, if we have his/her statement in our file. Back to Top.

The Separation Agreement

A separation agreement is a legally binding contract between a husband and wife. It contains the terms of the settlement between the parties: custody, visitation, child support, maintenance, division of personal and real property, waivers of interest in property. The separation agreement has enormous legal significance.

Nobody should sign such an agreement without the advice of an attorney. Signing a separation agreement is a big step. You may not be able to get out of the agreement once it is signed.

Many people do sign separation agreements which are not in their interests or without the advice of counsel. Sometimes, the person hopes to reconcile and the spouse who had the agreement prepared, knowing and playing upon this hope, suggests that the agreement is "just temporary;" or "can be changed at any time."

Their reasons vary:
1) I thought it could be changed later.
2) She told me that if I wanted to change it later, she would do that.
3) I thought we were going to reconcile anyway, so I didn't think it would make any difference.
4) He said I could have the house and he would keep the business. I didn't realize that I would have to pay the mortgage and I can't.
5) I didn't read it.
6) He told me what was in it. He said he wouldn't give me any more, so I didn't think it would hurt to sign it.
7) I got custody of my children and that was all I cared about. I didn't care at the time about alimony and health insurance or his pension. I made a big mistake.
8) I didn't understand that this was such an important document. I didn't realize its significance.
9) I felt guilty because I was the one who left.

A separation agreement is a binding legal document. While they can sometimes be set aside, that will only occur after an expensive legal battle.

In fact the agreement is far more likely to be upheld by the Court than set aside. It is actually rare for a Court to set aside a separation agreement. Anyone who signs an agreement, without the advice of counsel, may be embarking on a path that he or she will soon regret. Some aspects of the separation agreement are treated differently by the Courts:

Since child support is a statutory obligation, the Courts will not permit an agreement which fails to provide for child support or which provides inadequately for child support. So an agreement which fails to provide the statutory amount of child support will not be accepted by the Supreme Court.

Child custody and visitation can always be changed in the name of the ambiguous doctrine of "The Best Interests of the Child."

Thus, it is primarily issues of financial claims, property divisions and maintenance which will be upheld by the Courts. This can cause further inequities: the portion of the agreement, which the party most wanted and relied upon, may be subject to further and endless review in the Courts, while the part that the party gave up will be considered binding. For example, a wife, who, out of fear and anxiety, signs a separation agreement in which she gets custody, but waives off the husband's pension and business, may find that custody won't continue to be upheld by Family Court, but her waiver of a pension will be upheld.

Likewise, a husband may agree to pay extremely generous spousal maintenance or high child support at a time when he thought reconciliation was possible. Later, he may find that the Court will require this payment long after he discovers how difficult the payment is to make.

Alternatively, sometimes one party will retain an attorney and have an agreement drawn up. The other side refuses to get an attorney, but is willing to sign the agreement. This is a common situation, but not without perils. Later, the side without counsel may institute costly litigation to have the agreement set aside. While it may not occur, the cost of such a legal battle can be enormous. Back to Top.

GROUNDS TO SET ASIDE A SEPARATION AGREEMENT
The Supreme Court does sometimes set aside separation agreements. The most common reasons are a combination of several important factors. Where the party attempting to set the agreement aside is or was:

1) Not represented by an attorney at the time he or she signed the agreement.
2) Undergoing psychiatric or psychological treatment at the time of the signing of the agreement.
3) Where fraud or duress was employed to obtain the signature.
4) Where the division of assets is truly "unconscionable."

The Courts willingly uphold what is termed a "bad bargain," but will set aside an "unconscionable" agreement. The area in between a bad bargain and an unconscionable agreement is very ambiguous and may be up to the skill of the lawyers and the attitudes of the trial judge.

Litigation over a separation agreement may result in a settlement which improves one party's position at the expense of other party. Back to Top.

Equitable Distribution

The State of New York like most states, divides up the marital property between the two spouses. Equitable does not have to mean equal; yet in most cases, the two words are virtually synonymous. This means that in most cases the Courts will be dividing the marital property equally between the two spouses. Marital property consists of all assets acquired during the marriage except: gifts, inheritances, and proceeds of personal injury actions. There are variations on this rule and a careful evaluation must be undertaken with counsel.

The date of the separation agreement or service of the divorce summons should be carefully considered. Ten years of marriage qualifies for divorced spouse Social Security. The effect of the divorce on your spouse's unvested pension must also be ascertained.

In many cases both spouses are well advised by their counsel and a fair division of the assets can be determined and effected. In other cases, a spouse may be poorly advised or too emotionally upset to reach the correct decision. Sometimes there are legitimate disputes over valuations or perhaps both parties want the same assets, such as the house. In those cases, a trial over the equitable distribution of the marital assets will take place. To prepare for such a trial, you should familiarize yourself with family assets. You should copy prior years income tax returns, stocks, bonds, investment and financial statements, retirement plans. You should make copies of any financial record that you can locate.

You should copy all credit card records and all debts. You should have all account numbers. You will need to review your insurance policies, health, life and automobile. Life insurance policies may have cash values.

You may want to obtain a court order freezing financial and personal assets. You will need all the records to obtain such an order.

You may also wish to get your name removed from joint credit cards. This can only be done by contacting each company that issued a credit card and following their procedures.

You may wish to remove half of the funds from all joint bank accounts. You may wish to remove all of the funds from joint accounts, knowing that you will be asked to account to the Court for your taking of the same. Back to Top.

Domestic Violence
If there is domestic violence, you need to take action, both to protect yourself and to protect your children. If you fail to protect yourself and your children, that failure may be held against you in Court by Social Services. If you fail to take action against an abusive spouse, a Court may find that there is insufficient evidence of the abuse.

On the other hand, in households where there is no domestic violence, it sometimes happens that one spouse falsely accuses the other, in an effort to gain exclusive possession of the marital residence and custody of the children. If you have the slightest inkling that your spouse would do such a thing to you, you must be extremely careful and you must plan ahead.

If domestic violence or threats of domestic violence or accusations of the same are an issue, you will be able to consult with our Domestic Violence counselor to further assist you. Back to Top.

The Court System

SUPREME COURT AND FAMILY COURT
Each County has its own Supreme and Family Court located in the County seat. The seven counties in this District use the same Supreme Court judges. Each County tends to have its own Family Court judges. Thus the County Supreme Courts are more similar than the County Family Courts. Ulster County has one of the best Family Courts.

In Ulster County, Supreme Court is at 280 Wall Street in the center of Kingston. The Family Court is located in Kingston at 16 Lucas Avenue. In Ulster, Sullivan and Dutchess Counties, the two courts are located in different buildings. In Delaware, Greene, Columbia and Orange Counties they are in the same building. Back to Top.

COMMENCEMENT OF PROCEEDING
A proceeding in Family Court is started with a Petition for custody, visitation, support, an Order of Protection etc. There is no filing fee for Family Court. The only cost will be for service on the other party of the Petition. The parties in Family Court are called Petitioner and Respondent.

An action in Supreme Court is started with a Summons and Complaint. The filing fee is initially $185.00 (for the Index Number); then a second fee of $100.00 for the Note of Issue. The other fee is for service on the other party of the summons. The parties in Supreme Court are called Plaintiff and Defendant. Family Court handles only matters of support, custody, visitation, domestic violence. Support will include health insurance, medical bills, day care. It does not include a division of assets, real property, bank accounts, debts. You can not get divorced in Family Court, but you can win or lose custody, get visitation, lose visitation, be ordered to pay or receive child support.

Family Court is somewhat divided into two parts: the Hearing Officer handles all matters involving support, medical expenses, health insurance and day care costs and sometimes spousal maintenance. The Family Court judges handle custody, visitation, abuse and neglect and domestic violence.

Supreme Court grants divorces and divides all the property, pensions, bank accounts, real property, some personal property. It can also award custody, visitation and child support and maintenance. Both Family Court and Supreme Court can appoint a Law Guardian for the children and order psychological evaluations of the parties.

You may therefore have a choice of courts. One Court does everything and one Court specializes. Because Family Court specializes and because Ulster County Family Court is so good, we usually recommend determining contested custody matters there. We also do child support there. It is faster and generally does a better job than Supreme Court.

But there may be reasons why we would select Supreme Court and of course your spouse may have already instituted the action in Supreme Court which means it will be continued there.

Supreme Court requires a conference within 30 days of filing the initial papers. Technically, a divorce must be scheduled within 6 months. This sometimes happens and sometimes not. Family Court also has deadlines that must be met in scheduling a case. The first appearance at Family Court is called an arraignment.

At this time the judge will want to know if the respondent has been served with the petition. If both parties are in court, the judge will ask the respondent if he/she consents to the relief requested in the petition. If the respondent does not agree with the relief requested in the petition, the judge will tell both parties of their right to be represented by an attorney. The judge will usually briefly discuss the case with both parties to see if it can be settled, and she may refer you to mediation. If one has not been appointed, she will also appoint a lawyer, called a law guardian, for your child. If the case is not settled at arraignment, the judge may make a temporary order and will adjourn the case. If one or both parties did not have an attorney at the first appearance and an attorney has been retained or assigned to represent a party, there will be a re-arraignment.

If mental health evaluations have been ordered, the next court conference should occur after the evaluation has been received by the court. Your lawyer will get a copy of the evaluation. The conference will usually take place in the judge's office with only attorneys present. This is not done because the conference is secret, but because, in the court's experience, a fair settlement is more likely to occur if the lawyers first tell each other and the judge their client's position so that areas of disagreement can be identified. and suggestions made to resolve them. Your lawyer will then tell you the other parties' position and give you a chance to discuss your concerns without the other party being present. The judge is not allowed to speak with either party alone. No settlement discussed in the judge's office is ever made without your agreement. You must be in the courthouse for the settlement conference.

Fact Finding Hearing- The trial in a Family Court case is called a fact-finding hearing. When a case goes to trial you are letting the judge decide what will happen to your family rather than working it out between yourselves. At the trial both sides will present witnesses, and the law guardian may call witnesses. Trials can take an hour or they can take many days. They are emotional and sometimes embarrassing to the parties.

In Supreme Court, there is no arraignment and you may never meet or even be introduced to the judge assigned to your case. This can be very disappointing. People tend to find sitting in the hallway for several hours very irritating. Depending on the Supreme Court judge there may be a number of conferences. If your lawyer makes a motion, many judges require that the parties be in the courthouse, even if they are simply sitting and waiting in the hallway.

There are often many court appearances prior to a trial. Many people are confused by this as they expect a trial to occur sooner than it actually does. The Courts prefer not to try cases that will settle and often time and effort is spent trying to settle the case. This can mean a number of court conferences in which, from one point of view, "nothing happened and we didn't get to even see the judge!"

It's also true that sometimes nothing happens in the court conference because your lawyer or the other lawyer or the other party was late, missed the appearance, was held up in another court, had a conflict and forgot to request an adjournment. While this can be very irritating and it should happen as little as possible, it does occur.

Even if your case is set down for trial, it may be settled. Even if the Court starts taking testimony, the case may settle during the trial. Thus you should always be prepared to discuss your specific goals.

At the conclusion of the trial, the judge may make a decision from the bench or he or she may announce that the decision is reserved, pending submission of final written arguments or simply to be announced in writing at a later time. Back to Top.

CHILD SUPPORT
Child Support is easily calculated. The non-custodial parent pays 17% for one child, 25% for two children, 29% for three children and 33% for four children of the gross salary minus the social security.

This means that the non-custodial parent wilt pay on a $30,000 a year salary:
one child:
$4,709 per year or $90.55 per week or $392 per mo.
two children: $6,925 per year or $133.17 per week or $577 per mo.
three children: $8,033 per year or $154-48 per week or $669 per mo.
four children: $9,141 per year, at or $175-00 per week or $761 per mo.

To figure the weekly versus the monthly, you must realize that each month has 4.3 weeks. Or you can multiply the weekly figure by 52 and divide by 12. Or you can take the monthly figure, multiply by 12 and divide by 52. Social security is .0765 per cent of the gross salary.

It is important to understand that most child support orders involve the non-custodial parent paying to the custodial parent on the above percents.

If the non-custodial parent has the child with him or her two days a week, there still may be required the above support. Generally speaking if the child spends half his nights with one parent or close to half of the nights, it may be arguable as to whether child support should be reconsidered.

Many non-custodial parents are upset to learn that even if they have the child for 8 weeks during the summer, they may still be required to pay child support. Many custodial parents are upset if the non-custodial parent does not want to pay child support for extended visitations.

Sometimes people think that the Joint Custodial parents do not pay each other child support. It really depends. If there is a big income difference between the parents and the children spend an equal amount of time with both parents, the higher earning parent may still pay the lower earning parent.

If the children, for whatever reason, are separated and each parent has a child, there still may be child support if the parental income is substantially different. Back to Top.

Our Philosophy

Many times, matrimonial clients start our with unrealistic expectations and goals. For example, people sometimes want vindication from the Courts of their position:

"I want the judge to see that......" -or- "I want the Court to tell her she can't..."

Such a totally personally satisfying outcome is probably rare. Many times, when you are going through a tough time, consulting with family and friends is helpful and supportive; sometimes, however, friends and family can make things worse by encouraging and nagging you to insist on viewpoints that exacerbate the situation, irritate the Court and even hurt your case.

You may be making major changes in your life as a result of the termination of this relationship. Planning for your future may take some time. Your choice of your goals may change in the matter of a few months. Your choices will be important. For this reason, we recommend that you take your time during this process.

We do not encourage pointless litigation and we do everything we can to educate our clients against it. Therefore, most of the cases that we do try, consist of representing our clients against the unrealistic goals of the other spouse.

We will make every effort to reach a settlement that is satisfactory to you. If this can not be done, then the case should be tried and we will represent your interests to the best of our ability

Andrea Moran, Esq.
Steven I. Gottlieb, Esq.

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The information contained on these pages is intended for general information only and is not legal advice. Do not rely upon the information or apply it to your situation without first consulting us or another lawyer.

All contents © 2006, Law Offices of Moran and Gottlieb
60 Pearl Street • Kingston, New York 12401
Phone: (845) 339-5556 Fax: (845) 339-5671