Collaborative Law vs. Divorce Mediation in New York

Collaborative Law is a new form of dispute resolution in which both spouses are represented by lawyers in the traditional attorney-client relationship. The parties unconditionally promise not to go to court (litigate). With this non-combative approach, both clients and counsel are compelled to seek a negotiated settlement.

This approach keeps the divorce civil, and cooperative, and in many cases can even speed up the New York divorce process, since you are not at the mercy of the court's schedule. Another benefit to choosing Collaborative Law is that because you and your spouse are able to work together on an agreement, there is a greater chance that both parties will voluntarily follow through.

Collaborative divorce in New York uses informal methods of financial disclosure such as voluntary production of financial documents, four-way conferences, negotiation, and where needed, outside professionals including accountants, financial planners, and family counselors.

Collaboration is the middle ground between mediation and full adversarial litigation. In mediation, the parties meet with a neutral mediator. In mediation, the parties advocate for themselves while often using the services of consulting attorneys outside the mediation sessions. The neutral mediator cannot give any party advice or assist either of the parties in advocating their position.

As an experienced collaborative law attorney and mediator, Joel Salinger can assist you in the preparation of all necessary paperwork and if requested, can attend the required court hearing where the divorce agreement is presented to the court for approval. A New York divorce litigated in court is likely to be much more expensive and time-consuming than the costs and time involved in.

The poet, Browning once wrote the "best-laid plans of mice and men often go awry". Be aware that collaboration can give way to combat. It is best to be aware of what can follow.

A contested divorce case in New York can take anywhere from between 9-18 months depending on the complexity, but all divorce cases follow a pre-ordained path and it’s easy to see how a New York contested divorce case can easily eat up family assets faster than a herd of rabbits going through a ripe vegetable garden.

A. The Summons. A divorce action is commenced by the filing of a Summons by the plaintiff (the moving party) with the County Clerk. Thereafter, the plaintiff has 120 days to serve the defendant (the person who is being sued) with the Summons. The defendant must serve a Notice of Appearance within twenty days after service, or thirty days if it is served outside of New York.

B. The Complaint. This is the first of the pleadings and sets forth in some detail the basis and framework of the action. The grounds (causes of action) for the divorce will be outlined in the Complaint as well as the relief requested which may include equitable distributions, maintenance, child custody, child support, insurance, etc.

C. The Answer. The defendant has 20 days after service to serve an Answer. The defendant may admit or deny specific portions of the Complaint and/or may serve a counterclaim, which is simply a responsive complaint on the part of the defendant. In some cases, the defendant’s attorney may move before the court to dismiss the Complaint based on a procedural problem or insufficient pleadings, or several other issues.

D. Preliminary Conference. Under the rules of the New York courts, the plaintiff must file a request for a preliminary conference and for the assignment of a judge to supervise the case. The court will then hold a conference which the parties and their attorneys must attend. The court will require that the parties agree to a specific schedule to undertake and complete certain discoveries. The court will also attempt to resolve certain issues and will, meet with the parties. If there are issues involving children, the court may appoint a lawyer for the children (a Guardian) and may also order a mental health examination. The court may also appoint an appraiser for the parties’ real estate, businesses, or advanced or professional diaries.

E. Discovery. Each party must provide a sworn Net Worth Statement, which spells out all of the financial information pertaining to assets and living expenses. As part of this financial exchange, the parties are required to provide copies of tax returns, pension plans, life insurance policies, pay stubs and other financial information. F. Interrogatories. Written questions to the other party requesting answers to financial issues. They must be answered in writing and under oath.

G. Notices of Discovery and Inspection. Requests for the other side to produce documents for examination and copying, such as credit card information, partnership agreements, real estate documents, monthly brokerage statements, leases, etc.

H. Oral Depositions. This involves an attorney’s oral questioning of the adverse party under oath. The purpose again is to ferret out information regarding assets and/or standard of living. Virtually anything that sheds light on either the assets or the party’s standard of living is discoverable.

I. Motions. The party’s attorney may move before the court (make a motion) seeking certain financial or procedural relief. Such applications may include a request for temporary maintenance and child support, custody, visitation, counsel fees, exclusive occupancy of the marital residence, a temporary restraining order, and/or an order of protection requiring that an abusive spouse be required to stay away from the marital residence or from family members.

J. Pretrial Conference. The court holds a conference to ascertain that all appropriate discovery steps have been undertaken and that the case is actually ready to proceed to trial. At the pretrial conference, the court will usually attempt to settle the case.

K. Trial. If all negotiation fails, the case will proceed to trial at which the parties and their witness will offer testimony and exhibits. The judge after the trial will render a decision.

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