as written by Brian D. Perskin
Almost any competent lawyer can figure out how to file divorce papers in New York, but a divorce lawyer is more than a paper pusher. A divorce lawyer is your counselor and your chief strategist. Unfortunately, strategy is not taught in law school and can only be developed over a long career. Your divorce lawyer should be familiar not only with how to file the necessary paperwork and the proper relief to request in a New York Court, but your divorce lawyer should strategize the perfect time to file for divorce or the right motion for immediate relief. The right divorce lawyer should look at both your short and long term strategy. Choosing the right lawyer can make or break your divorce case.
I meet with potential and actual clients daily, and, even if my advice isn't in the best interests of the firm's practice, I often advise that they should hold off on filing for divorce until they take certain steps to put themselves in the best position to achieve what they want, both over the short term and long haul. A week does not go by where I am not amazed at the ignorance of my colleagues, who blindly give out advice or file suit without any hint of strategy or any knowledge of the facts of that client's case. These lawyers either file for divorce in cases where their client should clearly have waited, or they ask for relief from the Court that has little to do with the actual situation the parties face.
For instance, New York divorce lawyers often ask for excessive maintenance or child support when their own client is a lawyer, doctor, or other accomplished professional with a substantial income. I have seen cases where lawyers asked for residential custody when their client works fifteen hours a day while the other spouse has always been a stay at home parent. When a lawyer makes a request before a Judge in New York for relief that is clearly inappropriate, the Judge blames the client, not the lawyer. A lawyer's job is to make his/her clients appear intelligent, caring, and responsible to the Judge who controls the outcome of the case. You never get a second chance at a first impression. When a lawyer files needless and inappropriate motions on his/her client's behalf, the only one that gets hurt is the client. Clients often come to me and say, "Brian, the Judge hates me. What can you do to change this?" I often find this happens when the Judge is frustrated with the direction the attorneys have pushed the case. Ultimately, although it is the lawyers who are to blame, the client is punished.
My advice and counsel are based on the facts as told to me by the client. Do not choose a lawyer that tells you what you want to hear. Choose a lawyer who has the courage to tell you the truth about your case, even if the truth is contrary to what you wanted or expected to hear. Once you hear the truth about the actual facts of your case and not a sugar-coated version of what might happen in a perfect world, you can make the best decision for you and your family. Do not think about your case as winning or losing; instead, think about how to best achieve your goals, given your specific set of facts. Every case is different, and hiring a lawyer that treats every case the same will lead to your dissatisfaction with the outcome of your case. If you wanted advice given to everyone without any examination of the facts of your case, you can receive free generic information on the Court system's website.
In deciding which lawyer to hire, pay attention to the questions that are asked during your initial consultation. Make sure at your initial meeting you are getting advice and not a sales job. When clients come into my office, I first need to get a basic overview of the case. I need to know: names, ages of the parties, ages of the children, employment history, a list of assets, both separate and marital, the parties' present living situation, a general schedule of the children's routine, including who primarily does homework, who attends doctor appointments, who attends parent-teacher conferences, and the general demeanor and attitudes of their spouse. I also need to know if there is a history of violence, including confrontations in front of the children, and who controls the family's finances. Once I have this information, my next question is always: "What do you want?"
You should only choose a lawyer who is willing to litigate to achieve the results that you want. If a client tells me what he/she ultimately hopes to achieve and I determine this unreasonable, I politely apologize and inform that individual that I cannot be of assistance. I would rather turn away a client than take on a case that I know will fail. Many people thank me for my honest advice and either reassess what they hope to achieve or they hire somebody else. A lawyer's job is to give honest counsel and advice.
Once you have hired a lawyer, you should gather as much evidence as possible about your finances, your children's routines, and your spouse's habits. I generally advise clients to write everything down in journal form, keeping an outline of the events in their lives with regard to their marriage. If you arm your lawyer will specific information, including dates and details, your lawyer can give better advice, and you are more likely to achieve a better outcome.
Every case has a beginning, middle and end. If appropriate, I always urge clients to immediately file for divorce. This ensures that the case actually moves forward. I hate wasting a client's time and money with needless draft agreements and endless re-negotiations. I have been told that I am crazy, that cases should settle outside of court. I have found that this strategy results in excessive legal fees and only serves to waste time, increasing everyone's level of frustration. I am generally willing to attempt to settle for 30 days before involving the Court. If this fails, I will often file suit. If the case was so easy that it should be settled out of Court, I recommend going to a mediator, who can assist in the creation of a draft agreement. Once this agreement is in place, I will review its details to ensure that the client's rights are protected. Too much time is wasted by lawyers trying to negotiate a settlement out of Court. If it cannot be accomplished within 30 days, forget about it. While both you and your spouse may want to settle, without a Judge acting as the referee, most lawyers tell clients what they want to hear, and the case never ends. Consequently, the case goes nowhere.
When you file suit, there is a clear beginning to the case. In New York, divorce Judges are required to end the case within a year, unless there is an excusable delay. Let me let you in on a secret: having a lazy lawyer is not an excusable delay. You have your first Court date within a few months of the filing your case. At the first appearance in Court, if your spouse is being unreasonable, many times the Judge will say so. If you are being unreasonable, you may be told the same by the Judge as well. This is a perfect time to settle. Many litigants and even lawyers are uncomfortable appearing before a Judge. I thrive on it, and my clients benefit from my experience and comfort level in Court.
I settle many cases within the first month, but I believe that filing suit actually speeds up the process. This advice is very different from that of other lawyers and generally sets me apart. The most prestigious matrimonial firms would prefer to negotiate forever without involving the Court. They can tell their clients anything and conduct endless meetings, costing a small fortune, but as soon as a New York Supreme Court Judge is present, their client may find out that all of the advice or lack thereof was inaccurate, wrong, or outright foolish. My clients come to me to help them end their marriage in a way that best suits their needs. Delaying their case with fruitless negotiations only leads to unhappy clients. I want my clients to feel that they have an advocate looking out for their best interests.
Below find links to additional information and strategy regarding the divorce process. The Law Offices of Brian D. Perskin is available to assist you with any questions you may have regarding divorce in New York.
Hiring Your Lawyer
How to Act Toward Your Spouse Prior to and During the Divorce
How to Act During the Case and in Court
The Preliminary Conference
Pendente Lite Applications