Round Table: Family Law 2013

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Family Law proceedings can be both mentally and financially draining which is why we spoke with six experts from around the world to acquire their advice on issues such as drafting child support, deciding whether court or dispute resolution is the most appropriate method and contemporary matters including the role of the media in family courts and the use of private investigators or spying tactics.

[Responses from Jacqueline Newman of Berkman Bottger Newman & Rodd, LLP]

1) Have there been any recent changes to family law or practice in your jurisdiction?

In 2010, New York was one of the last states to become a “No Fault” jurisdiction.  No longer having to prove grounds for divorce has changed the landscape of matrimonial law in New York.

3) Do you believe that the balance between maternal and paternal responsibilities is fairly distributed?

That is a tough question.  Families often divide responsibilities differently.  In my experience, unless you have a stay-at-home father, I typically still see mothers as the primary caretaker for the children.  However, what I am also seeing more now are wives who earn either equal or higher salaries than their husbands.  However, despite women’s financial contributions to the marriage, women still also maintain the main role in caretaking for the children.  In situations such as that, the maternal and paternal responsibilities are not fairly distributed.  

5) It is not uncommon for suspicious parties to spy on their partner leading up to divorce proceedings.  In your experience are there any potential minefields regarding invasion of privacy? 

Now that New York is no longer considering fault in divorce proceedings (unless it is egregious), there is less work for private investigators in matrimonial law than ever before.  However, you do still have people breaking into each other’s computers, email accounts, iPads, etc.  You also have spy cameras and people recording conversations.  If there is an expectation of privacy, then you need to be very careful when you are snooping around.  A computer that is in a common area and not secured is very different than an iPhone that is carried around secured with a password.  Having a camera posted in a common space is different than a camera in a bedroom.  Also in New York, you can record conversations as long as you are a party to it.  I will say that despite all of the above, Courts do not like to review material that is obtained in a surreptitious manner.  

6) What is the procedure for calculating the correct level of child support?

Child support in New York is governed by the Child Support Standards Act (CSSA).  Child support is calculated based on the combined parental income (CPI) and the number of children the parties have (17% of CPI for one child, 25% for two children, 29% for three children, 31% for four children and no less than 35% for five or more children).  The applicable cap on the combined parental income for calculating child support is currently $136,000, however in high income cases the Courts will not be restrained to apply the cap and may apply the percentages to a higher level of income.

7) Can you outline the emotional issues and psychological effects which can become tied to the drafting, payment and non-payment of child support?

As the calculation of child support is pretty statutory, I do not see much battle about the numbers (except in the high net worth cases where the cap is much less defined).  However, when a parent nickels and dimes the other parent about expenses for a child or even the payment of the basic support it usually triggers a more visceral reaction from the custodial parent as they see it as money for the child of the marriage rather than for the spouse.  However, many payors of child support often feel that child support is really just disguised support for the spouse and the money is not needed by the child.  Does a three year old really need over $7,000 per month in support?  This is a common question I receive by my payor parents.  

8) How does parental responsibility (PR) work in your jurisdiction?

We refer to issues relating to the parenting of the child as “custody”.  There are two branches of custody – physical custody and legal custody.  Legal custody is which parent will make major decisions (educational, medical and religious) about the child’s upbringing.  Physical custody pertains to the parental access schedule – who is with the child when.  Most New York Courts will not order joint custody, although the parents can choose to enter into an agreement where there would be joint custody.  I typically see most parents agree to joint legal custody with one parent having primary physical custody.

9) Are you witnessing an increase in the number of parties choosing mediation as a form of dispute resolution and if so why do you think this is?

I am seeing a jump in both parties who choose mediation and also collaborative law as their process choices for obtaining a divorce.  Divorce litigation is a terrible process for a couple to go through, especially if there are children involved.  The mental torture that both parties endure, not to mention the expense and time involved, makes litigation a last choice for many divorcing couples.  Also, if you want there to be a possibility that you will be able to co-parent with your ex-spouse, why put yourself in a process that has as its sole purpose destroying the other person and proving them to be either unfit or a liar?  With budget cuts in New York, the Courts are under more strain and litigation is taking even longer.  It is a real mess.  If divorcing parties choose collaborative law or mediation, then they can control the timetable and the outcome.  Many of my clients have very busy work schedules and a Court does not care if you have the most important business meeting of your career.  Also, I find that many of my clients value the privacy of those process options, rather than an open courtroom.  Processes that value the dignity of the marriage and respect for the children result in better settlements and allowing people to move on in their lives.  I think that many people are recognising this and thus choosing to avoid litigation.  However, there are times that a party must go to Court, so I do not think that litigation will ever cease to exist.

10) What unique issues and financial planning do you discuss with your clients?

Divorce involves a lot of financial planning.  I often bring in financial specialists to run the settlement options to see how the monies he/she is receiving is going to look in 5, 10, 15 or 20 years.  There are many contingencies that must be factored in such as emancipation of the children, deferred compensation becoming due, changes in expenses, etc.

11) Can you outline the complexities involved with splitting retirement in divorce procedures?

Most retirement accounts can only be split upon a divorce to avoid any tax ramifications.  Many retirement accounts require a Qualified Domestic Relations Order (QDRO).  QDROS must be drafted by specialists, then approved by the plan administrator, then signed by the Court and then served on the plan administrator for the roll-over of retirement accounts to occur.

12) What key trends do you expect to see over the coming year, and in an ideal world what would you like to see implemented or changed?

As previously discussed, I am seeing more and more people choosing other options for getting divorce than traditional litigation.  My firm is the only matrimonial law firm in Manhattan that has attorneys that specialise in the three process choices for obtaining a divorce – mediation, collaborative law and litigation.  Therefore, when clients walk into my office and know they want to be divorced but does not know the best route for them, we can speak about which process choice would be best for their particular situation.  I think that more and more law firms are going to start structuring themselves this way as less and less divorcing couples litigate.  Ideally, I would like to see the majority of people avoid the Court system and learn to divorce with dignity.