by Christina Randazzo, Esq.
While I have written previously about the rarity of the truly uncontested divorce, it does happen that sometimes a separating couple is able to sit down together and work through the details of their separation without any outside help. Now the question is, what do you do with that piece of paper on which you scribbled out your agreement?
To protect your interests and insure your rights, your arrangement should be formalized into a Separation Agreement. In New York, when properly prepared and executed, a Separation Agreement is a binding contract and can be enforced if either party fails to comply with its terms. The piece of paper you both went over at the kitchen table is most likely not enforceable as it probably does not meet the requirements of a binding contract under the law. A Separation Agreement should be comprehensive and address all issues relevant to your separation, including addressing child custody and child support, maintenance, the marital home, division of marital property, allocation of marital debt, distribution of retirement assets, etc. It also must be signed before a notary by each of you and meet certain other requirements set forth in the law.
Once a Separation Agreement has been prepared and signed by each party before a notary, you can choose to go no further with the process, or either party at any time can file for a divorce and ask the court to incorporate the Separation Agreement into the final Judgment of Divorce. The Separation Agreement will then become not just a binding contract but an order of the court as to the terms of your divorce.
For some individuals, the only reason you want to get a lawyer involved in your divorce or separation is to make sure you have thought of everything and to make sure it is done correctly. The bottom line is you want to save time and money, but want the peace of mind of an attorney’s knowledge and experience without making the situation overly complicated. For some, where a splitting couple is able to reach compromises and agreements between the two of them, it is possible for an attorney to be involved simply to advise you and prepare the paperwork.
If this describes your situation, one caveat you should be aware of is that an attorney cannot represent both parties if a couple is divorcing or separating. Your attorney will only represent you and your interests and cannot advise your spouse. Your spouse may retain his/her/their own counsel or may choose not to be represented in the process.
If you would like to have a Separation Agreement prepared or reviewed, or would like to discuss your unique situation, click here to contact me.
by Christina Randazzo, Esq.
So you've been served with a Summons for divorce or a Petition in Family Court in New York State - what should you do now? Call an attorney.
I know that answer seems a bit self-serving coming from a family law lawyer, but it is truly the smartest thing you can do for yourself right now. You may think you can't afford an attorney or you may think talking to an attorney will only complicate the situation, but it doesn't hurt to at least have a consultation with an attorney experienced in divorce or family law so that you know the proper way to proceed. Then you can make an informed decision about whether to hire counsel or go it alone. The worst options are to ignore the situation, assume you and the petitioner/plaintiff will be able to work it out, or assume the judge will be on your side once she/he hears your story. The consequences can be catastrophic.
Every attorney I know who practices in this area has received a call from someone desperately seeking advice because the person just appeared in court and isn't sure what just happened, or because they signed an agreement or consented to an order, didn't fully understand it, and now regret it. It is almost always more expensive and time consuming (and not always possible) to try to put right these situations than it is to have an attorney guiding you from the outset. Don't do that to yourself - at the very least, speak to an experienced attorney as soon as you are served and let yourself be informed about what will be involved.
If you are served with a Summons and Complaint in a New York Supreme Court for a divorce, you typically have 20 days (but sometimes longer) to respond by filing an Answer. Failing to respond timely can result in a default judgment against you, meaning you may lose your right to defend yourself in the action or to put forth your own claims.
If you are served with a Petition in a New York Family Court, typically you will be given a court date on which to appear. A Petition in Family Court may relate to custody of a child, child support, spousal maintenance, or even a restraining order. Failure to appear can result in a default judgment against you, meaning you might be handing a victory to the petitioner regarding whatever relief he/she is seeking against you at great consequence to you. If it is impossible for you to appear on the court date you are given for good reason, it is possible to ask for another date and the court will usually accommodate your request. Don't assume you have no options.
If you've been served, call me. I will go over your situation with you and give you an idea of what to expect so that you can avoid costly mistakes. Click here to contact me.
by Christina Randazzo, Esq.
"Exclusive use and occupancy" in the context of New York divorce and family law, is a phrase basically used to mean who gets to live in the marital home. Whichever spouse has "exclusive use and occupancy" (or EU&O) gets to live in the house. The other party must vacate the marital home and cannot access the home unless invited by their spouse, or by formal agreement or court order.
A party to a divorce gets exclusive use and occupancy typically by filing a written application to the court seeking it. It is not a given that the court will grant one party exclusive use and occupancy and preclude the other party from accessing the home. There must be good reason to do so. A court may consider whether one party has already vacated the marital home and established another residence, whether the safety of people or property may be at stake if the parties continue to reside together, or generally whether "domestic strife" would be caused by both parties having access to the marital residence. A court may also consider whether the vacating party has somewhere else to live, whether an alternative residence is affordable, and how the parties' children may be impacted.
If you have questions about exclusive use and occupancy, want to raise it as an issue in your divorce case, or need to defend against it, contact me to discuss your situation.
By Christina Randazzo, Esq.
Clients will often tell me that they and their spouse want an “uncontested divorce.” There is a good reason for this – in theory, an uncontested divorce is easier, quicker, and cheaper than a divorce where the parties intend to fight over every issue. However, what an uncontested divorce really means should be clarified so that you and your attorney are on the same page.
A truly “uncontested divorce” in New York State is a divorce in which you and your spouse agree that you both want a divorce and also agree on every issue which must be made as part of that divorce. You have already decided whether the marital home will be sold or whether one of you will buy the other out and for how much. You have already decided the custodial schedule for the children, where they will spend holidays and how to divide vacation time, who will be making important decisions on their behalf and how that will work. You have already decided how much child support will be paid and whether maintenance will be paid, how much, and for how long. You have already decided how to divide any marital debt. You have already decided how to divide retirement assets. You have already decided about whether you will have an obligation to maintain life insurance, how to divide your personal property, who will claim the children on tax returns, and so on.
In that context, as you may expect, a truly uncontested divorce is rare because usually divorcing couples do not agree so easily on these often difficult topics. However, if you and your spouse are amicable and are able to sit down and hash these issues out, then your attorney needs only to review your plan to make sure it is fair to you and is within the bounds of the law, draft an agreement to memorialize your arrangement which will be signed by you and your spouse, and then submit the divorce paperwork to the court along with your agreement. It can be that painless if you really do agree on everything and your agreement is fair to both of you.
Ideally, a divorcing couple is able to come to a fair agreement on their own to save time and attorney fees, but usually in my experience, when someone says he or she wants an “uncontested divorce,” the reality is that the couple agrees that they want a divorce but don't completely agree on all of the other details. That’s okay and is normal when a couple is divorcing. If this applies to your situation, I will go through all of the relevant issues with you and identify the areas where you and your spouse are in disagreement. We will focus on negotiating and narrowing those areas of disagreement so that an agreement can ultimately be reached, with the goal still being to get you divorced as quickly and cost-efficiently as possible while avoiding the courtroom.
To speak with me about your divorce, uncontested or otherwise, click here to contact me.
To further discuss your family law situation, call Christina at
845-386-0093 or click here to send an email.
The content of this blog is not, nor is it meant to be, legal advice. Consult an attorney about your unique situation before proceeding in your legal matter.