Frequently Asked Questions
FREQUENTLY ASKED QUESTIONS
Q: How long will my case take? – It is impossible for us to predict how long any case will take. The law prescribes certain time requirements in divorce cases. Some require us to wait to do certain things until the other side has been given a set amount of time; such as, we need to wait 20 days after serving your spouse with the Summons to take any further action. Some require us to do a task within a set amount of time; such as, we have 60 days to submit your divorce papers after you and your spouse sign a Settlement Agreement. Also, you will need to fill out paperwork like your Statement of Net Worth and provide us written documentation of some of your assets and debts. That takes our clients varying amounts of time to do. If your case goes to court, we may end up at the mercy of the Court’s calendar and the schedule of opposing counsel. While there are some steps we can take to slow down or speed up a case, due to the time requirements under the law, the court’s calendar, and our need to receive paperwork from you, the amount of time any case takes is unpredictable. By promptly responding to our requests to fill out paperwork or provide documentation, you can help move your case along.
Q: How much will my case cost? – At Wesley Clark & Peshkin, we try to set our retainer agreements at a sum that is reasonable based on what you tell us about your case. However, a retainer agreement is by no means a guarantee that your case will cost that much, and sometimes unforeseen circumstances arise. Many cases cost more than the initial retainer and many cases cost less, resulting in the client receiving a refund. Some things you can do to keep your costs down are to call the receptionist with questions such as when your court date is, to schedule appointments, or to arrange dropping off or picking up documents. Emails are typically a large portion of our clients’ invoices so try to keep emails to your attorney relevant and to a minimum. Also, fill out your Statement of Net Worth as completely and accurately as possible before turning in your draft to us and promptly provide us complete copies of any documents we request.
Q: What is a Statement of Net Worth? – The Statement of Net Worth is perhaps the most important document in your divorce case. It is a long and detailed form wherein you must list some basic information about yourself and your family, list all of your monthly expenses in detail, disclose your income and list detailed information about all of your assets (things you own or have) and all of your liabilities (things you owe). This form is a NYS form and must be filled out by both parties in every contested divorce case. The forms must then be filed with the Court and exchanged between the parties. The form is what allow us, as attorneys, to begin to negotiate on your behalf, to know what needs to be included in a Settlement Agreement or prepare for a trial when a trial is necessary.
Q: What is the difference between litigation, collaborative law, and mediation? – Litigation is what you think of when you think of getting divorced and going to court. However, litigation is not what it used to be now that the majority of divorce cases are filed on “no-fault” grounds. Litigation means that your lawyer can and will involve a Judge if necessary, which may be as simple as a conference with a Judge or may be as complex as a trial. Many litigation cases settle outside of court. Collaborative law is when both sides hire attorneys who are trained in collaborative law and everyone signs an agreement not to take the case to court and, instead, to resolve the issues in a series of meetings together. Mediation is not offered by most family law firms but at Wesley Clark & Peshkin we currently have two attorney mediators. Attorney mediators are different than regular mediators you may hear about in our community because attorney mediators have a legal education and courtroom experience. If you choose mediation, there will be only one professional involved in your case and that person will work together with you and your spouse to craft a custom settlement that does not involve going to court.
Q: How will our property be divided? – In New York, the law directs that all marital property is divided equitably, or in a fair manner. Consideration is often given to how and when property was acquired. Typically, marital property is property that was acquired by the couple during the marriage and will be divided equitably. Separate property consists of items that one party owned before the marriage or which they received by gift or inheritance during the marriage. In many circumstances, separate property many not be subject to equitable division.
Q: What is maintenance? – Maintenance, also called spousal support or alimony, is financial support paid by one spouse to the other. How you determine whether maintenance will be a factor in your divorce, depends largely on the path you choose – mediation, collaboration, or litigation. In New York state there are legal guidelines that set forth recommendations for the duration and amount of maintenance in any given case. These guidelines are not the only factors that are considered as this is a very fact specific issue which you will need to discuss in detail with your attorney.
Q: How is child custody determined? – The courts in New York will set custody and parenting time schedules based upon what they determine is in the best interest of your child or children. At times, in the court process, an Attorney for the Child(ren), AFC, may be assigned by the court to give your children a voice in the court proceedings. In an amicable divorce, like a mediation or collaborative divorce, the parents are the ones making the determination of what is in their child(ren)’s best interest. The analysis can be complicated as every family is different and there are many considerations but the attorneys at Wesley Clark & Peshkin have decades of experience helping parents achieve their parenting time goals.
Q: How is child support determined? – In New York, the law creates a formula by which to calculate child support. This formula takes into consideration the needs of the child(ren) and the ability of the parents to meet those needs. Child support will also address the sharing of additional expenses for the child(ren) such as healthcare and childcare expenses. In an amicable divorce, while the statutory factors are considered, the focus is on cashflow and the overall needs of the family.
Q: What is an AFC? – An AFC is an Attorney for the Children, which used to be called a “law guardian”. The term “law guardian” is no longer used because the courts felt it was confusing and led parents to believe that the individual was to look after the best interests of the children during a divorce or family law case. An Attorney for the Children is assigned by the court in any contested case where custody is at issue. An Attorney for the Children must meet with the children and will take a position regarding custody based on what the children say they want, not based on what the Attorney for the Children believes might be in the children’s bests interests. Depending on your family’s income, the Attorney for the Children will either be paid for by NYS or by you and your spouse.
Q: If my spouse and I sign a Settlement Agreement, am I divorced? – A Settlement Agreement does not divorce you. It is a contract that is signed by you and your spouse wherein you agree to what all the terms of your divorce will be. You can think of it as a road-map for how you will live your lives after you are divorced, as it relates to each other and your children. Once a Settlement Agreement is signed, one of the attorneys must draft and submit a large packet of forms called the “Judgment Roll”. Those papers are reviewed and signed off on by the Judge. One of the papers in the Judgment Roll is called a “Judgment of Divorce”. The Judgment of Divorce is the document that, once signed by a Judge and filed with the County Clerk, officially divorces you. If you do not sign a Settlement Agreement, a Judge will determine the terms of your divorce after a trial.
Q: Will my ex have to pay my attorney fees? – The law provides certain grounds wherein a spouse must contribute to their spouse’s attorney fees. Most often, it is when the parties have a large disparity in their incomes. Sometimes, if it is found that one spouse has acted frivolously in the litigation such as unreasonably withholding documents, purposefully delaying the matter, or violating a previous court Order or written Agreement, the Court will award attorney fees. No matter what the situation, you are required to pay your retainer fees and any overage fees in full. Any contributions towards attorney fees that are negotiated or ordered by the Court will be applied to your balance and any refunds will then be given to you.
Q: What other legal matters can WC&P help me with? – At Wesley Clark & Peshkin, all our attorneys practice primarily in family and matrimonial law. We come from diverse legal backgrounds with extensive litigation practice and have experience in many areas of the law. We commonly help clients with matters that tend to go hand-in-hand with their divorce case such as buying or selling their home and establishing or revising their estate planning documents such as a will, health care proxy, and power of attorney.
Q: Do I need an estate plan? – Yes, you do. An estate plan protects your wishes in the event you are incapacitated or upon your passing. If your wishes are not written down, there is no way to ensure your wishes will be followed.
Q: Can I do my own estate planning? – There are forms you can purchase to do your own planning, but you should proceed with caution. While the forms may seem simplistic, you do not know what you do not know and that can result in the forms not being properly executed and/or unintended consequences. It is strongly recommended you do not attempt to do your own estate plan and instead meet with an experienced estate planning attorney to assist you with the process.
Q: Do I need more than just a Will? – Yes, a Will is a good first step, but if your estate is to be distributed through the Probate process and does not protect you in the event you become incapacitated. A Power of Attorney and Health Care Proxy are important documents to include in your estate plan. Additionally, in certain circumstances, we recommend the creation of a Revocable Living Trust to avoid your assets from having to be distributed through the Probate process.
Q: What is Probate? – Probate is formal court process used to identify who shall be appointed to administer the estate (“Executor/Administrator”), all assets owned by the deceased at the time of death, liabilities owed by the deceased, and determine what parties have an interest in the estate and/or are named as beneficiaries of the estate. Probate is required whether or not the deceased had a Will. Due to the court procedure timetable, an uncontested probate with assets over $50,000.00 can last 1-2 years and cost several thousands of dollars.
Q: Can Probate be avoided? – Probate can be avoided by creating a Living Trust and transferring real estate, bank accounts, and investments into the Trust, naming payable on death beneficiaries on life insurance, retirement accounts, stocks, and investments, and owning property in joint names.
Q: What is a Living Trust? – A Living Trust is a document by which the owner of property (“Grantor”) transfers assets to a person who manages the assets (“Trustee”) during the Grantor’s life and distributes the assets remaining in Trust after the Grantor passes away. Assets held in a Trust do not have to go through the Probate process. The Trustee is able to act in accordance with the terms of the Trust without the court’s involvement which reduces administrative costs and permits beneficiaries to receive distributions in a timely manner.
Q: Aren’t Trusts only for the wealthy? – No, Trusts are beneficial for anyone who wants their assets to be distributed in the most efficient manner upon their passing. If you own real estate, have minor children, would like to name a beneficiary who is either physically or mentally disabled, or would like to restrict how distributions are made to beneficiaries, you should discuss with your attorney incorporating a Living Trust into your estate plan.
Q: Will I lose control over my assets if I transfer my assets to a Living Trust? – There are several types of Trusts that can be used to meet your estate planning goals. While there are some types of Trusts that do require you to turnover control of your assets to someone else, the most common type of Trust is a Revocable Living Trust which allows you to maintain full control over your assets held in the Trust.
Q: I am young, should I wait until I am older to do my estate plan? – Even if you are young, you should still have an estate plan. If you become incapacitated, a Guardian must be appointed to handle your financial affairs. The Guardianship process is daunting, expensive, and may result in a Guardian you would not have chosen. If a person needs medical care, is incapacitated, and has not signed a Health Care Proxy, the New York Family Health Care Decisions Act permits an individual to make medical decisions for the incapacitated person based upon an order of priority. The list of persons in the order of priority is: A court-appointed guardian, spouse or registered domestic partner, a child older than 18, a parent, a sibling, a friend, a relative who is familiar with the incapacitated person’s personal, religious, and moral views. If you are going through a divorce, have a child who is young but over 18 or parents that often disagree, you should execute a Health Care Proxy to ensure the person you are most comfortable with making medical decisions on your behalf will have the authority to do so.
Q: Once I have an estate plan, can I make changes? – Absolutely. As your circumstances in life change, it is expected your estate planning needs and goals will change.