First, let me give you some good news. There is a very strong probability that most of you will not have to go through the anguish and expense of a full-blown divorce trial. Nevertheless, you can expect that you will have to move forward as though you were headed in the direction of trial even while your attorney is actively engaged in attempting to negotiate a favorable settlement. You can obtain an uncontested divorce when both parties have agreed on all divorce related issues such as spousal support, division of marital assets, child custody and parenting time, child support, health insurance and life insurance.
In the heat of a divorce battle, parents who are usually rational, often lose touch with what should matter most in their life – their children. Unfortunately, many estranged husbands and wives are so bent on emotional revenge or on protecting their assets, that they quickly forget that it is inappropriate to use innocent children in their quest for victory and vindication. Parents would be well advised to do all they can to keep concerns about property and children completely separate.
Domestic Relations Law permits married parties to enter into an agreement, provided that the agreement is in writing, subscribed by the parties, and acknowledged in the manner required to entitle a deed to be recorded. The statute further provides that the agreement may include provisions relating to distribution of the parties estate. It may also include provisions for the ownership division or distribution of separate and marital property; and provisions relating to the amount and duration of maintenance, provided that the terms were fair and reasonable at the time of the making of the agreement, and are not unconscionable at the time of entry of the final judgment. Thus, the separation agreement permits the parties without the direct intervention of the court to arrive at a settlement that they deem most appropriate for their individual circumstances.
A Prenuptial Agreement is, as the name implies, an agreement that is entered into in contemplation of marriage. There are many reasons why a couple may wish to have a prenuptial. This may be a second marriage where one party has children from a prior marriage and wishes to preserve assets for them. One of the parties may anticipate receiving a substantial inheritance or an interest in a family business, which they wish to preserve without pressure from the future spouse to make the property joint. One may simply be concerned about becoming involved in costly litigation in the event of a divorce.
In divorce mediation a neutral and trained third party helps the disputing spouses arrive at a mutually acceptable final settlement of their own design. In general, agreements made during mediation are embodied in a Memorandum of Understanding, which form the basis for the parties’ attorneys to prepare a Separation Agreement. The Separation Agreement is then incorporated into the Divorce. Unlike an arbitrator, a mediator has no decision-making powers. Furthermore, he/she cannot compel the parties to accept a particular settlement – or even to continue mediating their differences. His/her role is essentially that of a facilitator. When parties enter into mediation, they implicitly agree to replace their lack of trust in one another with a mutual confidence in the mediator’s ability to help them reach a fair and mutually acceptable agreement.
During 1996 the New York Court of Appeals attempted to set forth guidelines for the courts to use in addressing relocation cases. The court made clear that the “best interest” of the child are controlling. It did not however, clearly state how you determine “best interest” in a relocation context.
Relocation cases are “fact sensitive” in that each case must be considered on its own facts and merits.