Contested Divorce: New York Contested Divorce Lawyer
What is a Contested Divorce in New York?
A divorce is deemed contested when the Defendant disagrees with the relief requested by the Plaintiff, the person who filed the initial divorce action, or the grounds upon which the Plaintiff filed the divorce action. New York divorce law now recognizes no-fault divorce, and therefore the issue of grounds is generally resolved on a no-fault basis to streamline the divorce process; that does not mean, however, that a person cannot pursue a divorce based on particular grounds such as adultery or cruel and inhumane treatment. Because grounds are typically not an issue, parties are typically focused on issues concerning the following:
- Distribution of real and personal property.
- Establishment of spousal support and the longevity of such support.
- Division of retirement assets.
- Determination of residential and legal child custody and parenting time.
- Setting of child support and affiliated support costs.
- Allocation of counsel fees, and other fees associated with resolving the equitable distribution of assets, i.e., the valuation of real property or business.
Divorce * Uncontested Divorce * Contested Divorce * Custody & Child Visitation Rights * Child Support
Equitable Distribution * Prenuptial Agreement * Postnuptial Agreement * Order of Protection
Separation Agreements * Alimony & Maintenance * Spousal Support * Appellate Practice * Adoption
A contested divorce does not necessarily mean that you and your spouse cannot agree on the resolution of any of the above-referenced issues, it simply means that there is at least one issue that needs to be resolved with the assistance of counsel or a judge. Often times parties believe that the distribution of assets must be even, or alternatively, because someone feels wronged that the distribution of assets should be in his or her favor, but the reality is that the distribution is based on equity: fairness, hence the term often used in the distribution of the marital estate, equitable distribution. As such, the facts and circumstances of your particular case, and an evaluation of the assets in the marital pot guide in the analysis of what is equitable.
Our divorce attorneys at Castiglia-Rubinstein, Simon and Associates are experienced in discerning potential outcomes should your matter be heard and decided by a judge, and we will assist you in resolving contentious issues through negotiation when possible to avoid the cost of litigation. Where negotiation is not possible, our divorce attorneys are adept litigators and will advocate your position vigorously before the court to reach your objectives. We represent clients in resolving contested divorces in Nassau County, Suffolk County, Queens County, Bronx County, Westchester County, Richmond County, Manhattan and Brooklyn Kings County New York.
Why is My New York Divorce Contested?
Often times, divorce actions are contested because emotion clouds the judgment of a divorcing spouse. Other times, parties have genuine concerns about the fairness of the distribution of assets, or the other parent’s fitness to care for their children. While we are sensitive to the emotion and frustrations that are inherent in the divorce process; at Castiglia-Rubinstein, Simon & Associates, we do not permit such emotion to guide the analysis or resolution of your matter. Rather, we focus our clients on genuine family law issues that affect the family unit and the distribution of the marital estate, and urge clients to work toward the resolution of the divorce. Our goal is to preserve the marital estate to the best of our ability so that our clients are able to begin a new chapter in their lives without destroying all that was built and saved during the marriage.
When one spouse or partner files a divorce petition in New York, the other party, called the defendant, has several options for how to respond. Three of these situations would be considered uncontested and one would be contested. When the petitioner files the divorce petition, the respondent can either file a response, or not file a response.
Converting your contested divorce into an uncontested divorce
At the outset, most divorce actions are contested in nature. The reality is that a majority of people who are seeking a divorce have difficulty agreeing with one another. Analogously, troubles that plagued the marriage carry over in the divorce process making it difficult for each of the parties to reach an agreement. As such, the litigation ensues with an exchange of pleadings, the Complaint and Answer, and a request is typically made for judicial intervention. As a result, the parties will be ordered to appear before a judge with their respective attorneys for a preliminary conference, which will culminate in the issuance of a Preliminary Conference Order, which is ostensibly a road map to the divorce litigation. That Order sets out dates for the exchange of documents, depositions, etc. As this process develops, parties usually begin to realize how unnerving it is for a judge, who does not know them or their children, to decide how their new family dynamic will be achieved and the proper way to distribute their assets. At this juncture, parties who may have been polarized as to one or more issues, are able, with their divorce attorneys’ guidance, to move toward an out-of-court resolution: resulting in the transform of the once contested divorce into an uncontested divorce.
Achieving a non-contest divorce
Most divorce attorneys are equipped and poised to assist their clients to resolve contested divorce issues by way of a Stipulation of Settlement, which is a contract between the parties that resolves issues concerning custody, parenting time, support, and the equitable distribution of assets. The Stipulation is presented and reviewed by the Court and should be incorporated and not merged with a Judgment of Divorce issued by the Court. While a Stipulation of Settlement is often times able to be achieved with the assistance of parties’ respective attorneys, there are other ways to resolve the issues so that a Stipulation of Settlement can be drafted and presented to the Court to evade the expense of a full divorce trial.
If you and your spouse choose to resolve disputed facets of your divorce, you will the services of a divorce mediator. Divorce mediators are not necessarily attorneys; mediators may also be professional in the mental health field that have mediation training. These professionals have a unique background, that when combined with their training enables them to help you resolve the issues that you and your spouse may have.
The mediator may meet with each of you separately to gain an understanding of what you and your spouse both desire to achieve as a resolution. The mediator’s role is to remain neutral and to facilitate a healthy discussion between you and your spouse so that the two of you can work through your issues and reach a common understanding and resolution of contested issues. If this can be achieved, the parties’ understanding can be memorialized via a Stipulation of Settlement that is submitted to the Court along with other required submission documents.
It is advised that both parties consult an attorney outside of mediation, because neither party is allowed to have an attorney present during mediation.
If both parties cannot come to an agreement on all of the terms of the divorce, they may bring the remaining issues to court. For example, if the couple can agree on property division and spousal support, but cannot come to an agreement on child custody and visitation, or child support, they may opt to have those issues resolved in divorce court.
Collaborative divorce mediation
Collaborative mediation is a hybrid approach that fuses the typical divorce litigation route with the combination of divorce mediation. Collaborative divorce mediation is another way to resolve the issues present in a contested divorce, although it is generally less common than divorce mediation. Generally, a collaborative divorce mediation is used before either party files for divorce, with the common goal of achieving an uncontested divorce.
In a collaborative divorce mediation, both parties hire divorce attorneys. Generally, the difference between a collaborative mediation and a litigated divorce is that the respective attorneys are advising their clients as to the best course while allowing the mediator to facilitate a dialogue between the parties. An advantage to this process over a mediation is that the parties can retain their respective attorneys, and if the collaborative mediation fails; the rapport and work that has been achieved during this process is not lost should litigation be required. In contrast, the mediator cannot participate as counsel for either party if the mediation fails. Another advantage of a collaborative divorce mediation versus a divorce mediation, is that both attorneys are immersed in the negotiation process and therefore can draft the Stipulation of Settlement and submission documents required to be filed to achieve the divorce with ease. In contrast, an attorney who is retained to memorialize the resolution of the terms of the divorce achieved in a divorce mediation, and who was not a part of the mediation process, is susceptible to misunderstanding the parties’ wishes or re-engaging the parties to ascertain a better understanding of their wishes. This unfortunately may result in discord between the parties or desire by the parties to revisit the issues. The worst case scenario is that these issues result in a complete breakdown in the mediation process and the parties do not execute a Stipulation of Settlement required to achieve the uncontested divorce.
OUT-OF-COURT Dispute Resolution
While trial is an option for resolving contested divorce issues, it is typically only sought after out-of-court negotiation fails. This does not mean, however, that litigation is not pursued on a parallel course while the parties are engaging in negotiations. As discussed above, the design of litigation process is arduous and expensive, resulting in a judge deciding the fate of families; a situation that parties begin to realize is not optimal for them as the process ensues.
With the help of counsel, an out-of-court divorce resolution bears significant benefits:
- Saves you money on your divorce. • Provides more control over the outcome of your divorce when you set the terms yourself, which divorce litigation does not guarantee. • Out-of-court resolution allows you to take as much or as little time as you need, and to schedule your meetings based on your schedule, rather than the court’s schedule. • Most people are happier with the outcome of their divorce when they choose the outcome. This also means that both parties are more likely to understand and follow the terms of the divorce once it is finalized.
The Process of Resolving a Contested Divorce
Regardless of how you and your partner or spouse set the terms of your divorce, they cannot be turned into a divorce settlement until a judge has signed off on them.
In a contested divorce, both parties will already have filed pleadings with the court.
Following either negotiations between the attorneys and their respective clients, or with the assistance of a divorce mediator, a divorce is only possible with the submission of a Stipulation of Settlement to the Court, and the divorce agreement. As an aside, almost all matters in a divorce can be resolved by the parties without much scrutiny from the court; as such is typically governed by the notion that if there’s consideration, a meeting of the minds between the parties, freedom on contract prevails. This is true except for the area of child support, which is governed by the Child Support Standards Act, which quantifies the amount of support to be provided to the custodial parent. While there are bases to deviate from the mathematical formulas provided therein, the court reviews this portion of the Stipulation of Settlement to ensure that the best interest of the children are being met in conformity with the support legislation. In addition to the submission of the Stipulation of Settlement, which must be drafted by an attorney, not the mediator, a litany of submission documents will have to be filed with the court. The documents to be filed are dependent on the facts and circumstances of your case. Knowing which documents to file is important because incomplete submissions can derail the processing of your divorce by many months, or longer.
At Castiglia-Rubinstein, Simon & Associates, we pride ourselves on counseling our clients so you understand your options and potential outcomes at trial before engaging the process of resolving your matter without judicial intervention. After consultation with an experienced divorce attorney, and understanding your options, we work aggressively toward resolution of the contested issues by engaging the litigation process immediately while actively pursuing your spouse to achieve a dialogue to resolve the contested issues: transforming your contested divorce into a matter that is uncontested and resolved via a Stipulation of Settlement, not a divorce trial.
If you have questions about your impending divorce, it is always best to discuss your situation with a qualified New York divorce attorney. A lawyer will be able to provide you with information about how the law applies to your unique situation. At Castiglia-Rubinstein, Simon and Associates, Attorneys at Law, we offer free initial consultations!
If you are ready to discuss your upcoming divorce with an attorney in New York, contact the attorneys at the law offices of Castiglia-Rubinstein, Simon & Associates today. We offer free initial divorce law and family law consultations, and we are here to help you through this transitional time.
We are dedicated to your success – so contact us. Speak with one of our knowledgeable Long Island Divorce lawyers, divorce mediation lawyers, family law attorneys, and contested divorce or uncontested divorce attorneys today from wherever you live in New York in Nassau County, Suffolk County, and Brooklyn, Kings County and Queens County, on Long Island and all New York City boroughs including Bronx, Westchester, Richmond County, and Manhattan New York.
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