Frequently Asked Questions Regarding Divorce And Other Family Law Issues
Dealing with divorce and its subsequent effect on your life can generate many questions. Law and Mediation Office of Helene Bernstein, PLLC, assists clients with all aspects of divorce and family law in Brooklyn and Manhattan. Ms. Bernstein keeps flexible office hours, including evening and weekend hours by appointment, by phone, video chat or in person if available to help work around her clients’ busy schedule.
Some questions Helene often receives from clients include:
What is mediation?
Mediation is an alternative dispute resolution method that allows parties to work through their differences without going to court. While mediation is not for every couple, it is an effective, confidential tool that many use when they are willing to work together to create mutually satisfactory decisions. It reduces the mental hardship, stress and financial strain of enduring a lengthy courtroom battle, and it often takes much less time than going to court. Couples attending mediation sessions are able to express their concerns in a neutral environment, giving them the option to voice all their thoughts and opinions in a timely fashion. It also allows one to take a child-focused approach to their divorce, ensuring children’s needs and interests are addressed.
Do I need to be represented by a lawyer in mediation?
Mediation does not require the parties involved to be represented by a lawyer. However, it is wise for each party to have their own attorney review any agreements reached through mediation and provide clarity on the consequences. It is common to make agreements proposed in mediation contingent upon your lawyer’s approval. A lawyer serving as a mediator cannot represent either party.
What are the benefits of mediation?
Mediation has many benefits. It saves you money and time, and it provides both parties involved in a divorce more control over the outcome. Because the mediation process is less adversarial, parties have the opportunity to work together toward a solution that satisfies everyone involved. It is especially beneficial to parents who want to place the focus on doing what is best for their children and creating an effective co-parenting plan for post-divorce life. Many who complete mediation find that their relationship with their former spouse going forward is better than they expected.
Do I ever have to go to court during a divorce?
It depends on the circumstances of your divorce. While mediation is all that is necessary for some couples, divorces involving contentious issues are sometimes best handled in court. Your family may benefit from more formal proceedings if there are problems related to substance abuse, domestic violence or complicated financial issues.
Can the amount of child support or spousal maintenance be determined in mediation?
Yes. You can agree to terms of child support, spousal maintenance and any other facet of a divorce decree through negotiation, mediation or collaborative methods. In fact, it’s a good idea to reach an agreement on support matters without litigating if the agreement is fair to all parties involved. New York courts follow guidelines for support matters. The court will review any agreement that is reached regarding child support or spousal support to make sure it adheres to the best interests of the child or the needs of the recipient spouse in terms of spousal support. You have a right to deviate from the formula as long as you show you have knowledge of the law.
Helene Bernstein has a thorough understanding of New York’s divorce laws and can help you understand when it is best to make your own decisions about child support and maintenance through negotiation, mediation or collaborative divorce. Additionally, she can help determine if deviating from the child support guidelines is necessary because your children need more support than state law provides due to special needs or other factors. Deviation may also be necessary as the presumptive support guidelines are not appropriate due to the particular financial needs of the family.
My child’s other parent and I have never been married and need to resolve matters pertaining to child custody and support. Can you assist with this?
Yes. There are many instances in which nonmarried parents with a child in common must resolve disputes regarding custody, parenting access and child support. In these cases, Ms. Bernstein can help resolve these issues through mediation, collaborative law, negotiated settlements or in Family Court.
What is collaborative law?
Collaborative law is a tool that divorcing parties can use to finalize the details of their divorce without going to court. Each spouse has his or her own attorney acting as an advocate for their rights. A collaborative divorce can follow the legal model, in which a participation agreement sets protocol to help the parties reach essential decisions, or an interdisciplinary team model, in which attorneys, financial consultants and mental health professionals are employed to provide counseling and help guide parties toward making mutually acceptable decisions. Parties who agree to try the collaborative divorce process must conduct themselves politely and treat their former spouse respectfully.
What if collaborative divorce attempts fail?
Sometimes divorces are simply too contentious for the collaborative divorce process to succeed. While it may seem as if giving up is the easiest course of action, you should take a step back to evaluate whether you can truly reach an agreement in this way.
Should you decide to opt out of the collaborative divorce process, you and your former spouse must each hire a new attorney to act as your legal representatives in court. This provides incentive for everyone involved to do everything possible to find mutually agreeable solutions. Helene Bernstein has extensive experience in collaborative law as well as litigating cases in family court and Supreme Court in New York. She is ready to help you navigate the collaborative divorce process, or she can represent you in litigation if your collaborative divorce efforts with different legal representation failed.
What is the benefit of a prenuptial or postnuptial agreement?
Prenuptial and postnuptial agreements are proactive measures to prevent litigation in the event of divorce. One is reached prior to a marriage and one is reached after a marriage. They are legal documents that can designate what is marital property and what is separate property, determine how marital property will be divided in a divorce, set expectations for spousal maintenance, and protect spouses from nonmarital debt. We can explain the benefits of a prenuptial or postnuptial agreement further and assist with these documents through either mediation, consulting attorney services or negotiated settlements
Can you be my review attorney?
Yes. Parties who mediate agreements are recommended to hire a review attorney prior to submitting their agreement to the court. Helene Bernstein has been practicing family law for more than 25 years and has a thorough understanding of all aspects of family law. She is also available to help parties file their uncontested divorce in court.
Can I get a no-fault divorce in New York?
Yes, New York now allows no-fault divorces.
Are there steps we can or should take if we wish to separate but have not yet decided to get divorced?
Married couples may wish to live apart from each other but do not want to get divorced because they have not made that decision yet, they can’t afford it, or one partner needs to remain covered by medical insurance provided by the other partner. A legal separation agreement can provide binding structure to child custody, support issues, division of marital property and other decisions that are also made in a divorce. A lawyer can help you draft a separation agreement and file it with the county clerk once it is signed and notarized. If you wish to use your legal separation agreement as the basis for your divorce agreement, you must live separately from your spouse for one year.
Get Your Questions Answered
Every family situation is different. Helene Bernstein can review your situation and answer your questions during a consultation. Call 917-920-9627 or use the online contact form on this website to schedule a meeting. The firm serves clients in Brooklyn and Manhattan.
- The New York State Council on Divorce Mediation
- Family & Divorce Mediation Council of Greater New York
Parent Education and Parent Coordination
New York State Court and Support Resources
- New York State Unified Court System
- New York State Child Support Enforcement Information
- Court Child Support and Maintenance Calculators