That really depends on your situation. If you are committed to resolving your issues outside of court and you feel able to speak up for yourself, in the presence of your spouse, without the aid of an attorney or advocate, mediation might be the best process for you.

If you would feel more comfortable having an attorney present with you in any negotiations or settlement meetings, but would be willing to agree to keep the matter out of court, the collaborative process could work best for you.

If you or your spouse cannot be in the same room with each other, or one of you refuses to negotiate or make any efforts to settle, or if there is a history of domestic violence, or serious power imbalance in your marriage then the more traditional litigated approach is best-suited, and you'll need a lawyer to represent you in court.

It depends upon how complex your issues are and how much conflict you and your spouse have. It also depends on the process you choose. There is usually no up-front retainer in mediation. You pay at the end of every session, and you pay in advance for preparation of the separation agreement. There is a retainer required in collaborative and traditional representations. There may also be court costs and other fees in addition to attorney fees.

If there are marital assets that your spouse has complete control over and you have no access to, perhaps he or she would agree to pay for the mediation, or pay the fees needed to hire an attorney. If there are marital assets that you have no access to and your spouse refuses to give you any funds to hire your own lawyer it is possible to ask the court to order your spouse to pay your counsel fees. At the same time we may also be asking for custody, child support and spousal support. You will still need some source of funds to get your lawyer started.

In mediation we meet together in a number of sessions until we have resolved all issues. We tackle the issues one at a time by gathering information, identifying conflict and brainstorming options to resolve the differences. The more creative you can be, the better your chances of finding a solution that satisfies both of you. The culmination of mediation is usually a signed separation agreement. Before the agreement is signed you should both have it reviewed by separate attorneys. Even though your mediator may be a lawyer, he or she is not acting as an attorney for either one of you. And even though the mediator may give you legal information during the course of mediation that is not the same as being given your legal rights. It is important for you to know those rights before you sign a separation agreement. This protects against either one of you trying to have the agreement set aside in the future because you did not know your rights. There are many lawyers who act as review attorneys, who understand your wish not to turn your divorce into a war and who will advise you of your legal rights and responsibilities.

In the Collaborative Process each party meets first with their attorney to give an overview of the marriage, children, earnings and assets. The attorneys may speak to each other before the first scheduled "4-way" meeting (with the two clients and two lawyers) to discuss an agenda. At the first 4-way this agenda is reviewed with the parties who are free to craft their own agenda. Also, at the first 4-way the parties and the lawyers sign a collaborative agreement, wherein they all pledge that they will not be going to court or threatening to go to court. You can see an example of this agreement at www.collaborativelawny.com . Any and all financial documentation is exchanged voluntarily. The goal, similar to mediation, is to reach a settlement of all issues that is good for both parties. If you and your spouse are ultimately unable to reach a resolution of all matters, and you have to resort to the courts, you both must hire separate attorneys.

In the traditional, litigated representation there are a couple of different ways to start. Even though you and your spouse have chosen not to mediate and not to collaborate, it doesn't necessarily mean you have to go to war. After being retained, if it seems appropriate, we may start by sending your spouse what we call a "friendly letter". This letter will assure your spouse that you are interested in having an amicable settlement, and that your lawyer strives to do the same. We ask your spouse to contact me, or have his or her lawyer contact me so that we may begin to work out the details of a settlement. If your spouse, or your spouse's attorney, does not respond to the friendly letter, we will have to commence an action for divorce in Supreme Court and have him or her served by a process server. At that point he or she has 20 days to respond, and the proceedings progress from there to conclusion. If possible and appropriate, it is very likely that, at some point, we all get together for a 4-way meeting. The advantage of the 4-way is that you can both listen to each other and try to understand each other. When people understand each other, even if they don't agree, at least they are not angry and are better able to come up with a resolution of their differences. Understanding is also key in mediation and collaborative law.

You should begin to gather whatever financial information you can. You will need at least two years of tax returns, recent pay stubs, and any and all documentation of your assets and debts. This includes brokerage account statements, IRA and other retirement account statements, life insurance statements, etc. You may ultimately need to have your house, apartment, business and pensions appraised. You and your spouse are entitled to full financial disclosure from each other and will likely be exchanging sworn affidavits of net worth, no matter which process you choose.

There are several grounds under which a person may seek a divorce from his or her spouse. The following grounds are based upon the "fault" of one of the parties:

• Cruel and inhuman treatment
• Abandonment for one or more years
• Imprisonment for three or more years
• Adultery

The "no-fault" grounds are as follows:

• One year of living apart under a separation agreement;
• One year of living apart under a judgment of separation

You can't get divorced based on irreconcilable differences in New York State. The only no-fault divorce provision that we have is when you have had a signed separation agreement for more than a year and have lived apart for more than a year. If you do not have a signed separation agreement and have not lived apart for more than a year, you need grounds for divorce. The legal grounds in New York, pursuant Domestic Relations Law, are:

• Cruel and Inhuman Treatment. The situation has to be so serious that it is unsafe and improper to continue to live together;
• Abandonment. This exists if one of you left the marital residence more than a year ago, or if one of you has refused to have sex with the other for more than a year;
• Adultery. This must be proved by third party evidence, which is not so easy to obtain. Often adultery is included as part of cruel and inhuman treatment;
• Imprisonment. The defendant must be imprisoned for three or more consecutive years.

Unlike most other states, New York does not allow a divorce based upon irreconcilable differences. Rather, to obtain a divorce in New York married partners must either consent to the terms of a separation agreement and live pursuant to that agreement for one year before obtaining a divorce or one partner must agree to be at fault in divorce papers filed with the court system or one partner must prove that the other partner is guilty of fault. The fault grounds for divorce in New York include adultery, abandonment and cruel and inhuman treatment. If the other partner contests or disputes the fault grounds, a trial will be conducted before either a judge or a jury on the issue of fault.

The fault issue is most often leveraged for economic gain. Specifically, the party contesting the divorce will not consent to the divorce unless certain economic terms favorable to that party are included in a separation or settlement agreement. This issue does result in a substantial amount of litigation in New York and must be addressed with counsel prior to effecting a strategy for resolving your case.

A matrimonial matter may involve one or more of the following issues:

• divorce
• custody of minor children
• child support spousal support or alimony, and
• the equitable division of marital assets.

The first goal of our office in assessing your particular matrimonial situation is to determine how many of those issues exist and which, if any, are likely to cause heated disagreement and/or litigation. In many cases, the isolation of the one or two difficult issues and the development of an effective strategy to resolve those issues can result in the negotiation of a settlement rather than the litigation of all issues.

A separation agreement is a comprehensive contract where the parties agree to live separate and apart for the rest of their lives. The agreement must set forth rights and duties with respect to important issues such as custody, visitation, child support, distribution of property and all other matters that arise at the end of a marital relationship. Each of the parties should consult their own attorney to draft and prepare the agreement so that these complex issues can be analyzed and resolved appropriately. The final agreement is then filed with the clerk of the county where either spouse resides. At the end of one year from the date of the agreement, either spouse may initiate a suit for a "no-fault" divorce.

There are basically three issues to be resolved in any Separation Agreement or divorce:

• Parenting and access (traditionally called custody and visitation);
• Support, which includes child support, if you have children, and spousal support, if appropriate;
• Division of assets and debts that have been accumulated during the marriage.

A Court grants a judgment of separation when either of the parties brings an action for separation in the Supreme Court. A Court may grant separation based upon the following grounds, which are similar to the grounds for seeking a divorce:

• Cruel and inhuman treatment
• Imprisonment for more than three years
• Adultery
• Abandonment for less than one year
• Non-support

If the Court grants a judgment of separation based upon any of these grounds, either party may sue for a "no-fault" divorce one year after the filing of the judgment and living separate and apart. A divorce will not occur automatically.

For our office, custody disputes are considered the most difficult aspect of matrimonial practice. Children are often the victims of the emotional chaos that results from the break up of a family and the bitter litigation that can ensue. Attorneys in our office have worked extensively as Law Guardians, or attorneys appointed to represent children, in Family Court and Supreme Court. As a result, our focus has been and will remain on negotiating resolutions that do the least possible harm to the children of our clients. In every litigated custody matter, the Court must determine the best interests of the children. To assist in that determination, in all litigated Family Court matters and in most litigated Supreme Court matters a Law Guardian will be appointed by the Judge to represent the children. A Law Guardian is an experienced family law attorney who represents only the children's interests in a custody dispute.

When parents litigate custody, it is our office policy to request that a forensic examination of the parties, children, and other relevant people be conducted. A forensic examination is an interview and examination of the children, parents, and other relevant people by a psychologist or other equally qualified professional for purposes of providing an expert opinion to the court regarding custody. The parties may be responsible for the payment in whole or in part of the forensic examination. This additional expense, however burdensome, often greatly aids the court and the attorneys in effecting a proper resolution of a disputed custody matter. Many courts require a forensic examination in all disputed custody matters and many judges greatly rely upon the recommendations made by the forensic evaluator.

The recommendations of the Law Guardian and the forensic evaluator will be impacted by the wishes of your children. Those wishes will be given more weight as the age of the children increases. There is, however, no magic age at which every court will simply dispense with its role of determining the best interests of the children and allow the children to dictate who their custodial parent will be. Moreover, any parental manipulation of children on this issue which results in an alienation of the children's affections for the other parent will likely be identified by the Law Guardian and the forensic evaluator and may result in a negative custody resolution for the parent who has engaged in the manipulation. It will also result in lasting psychological harm to the children and should be avoided in all circumstances. As with all other issues in a matrimonial matter, custody litigation can be avoided whenever parents are able to arrive at their own agreement regarding their children's best interests

Courts in New York are not unmindful of the realities of contemporary society; we are a mobile civilization. Given that mobility, there is no blanket prohibition upon the relocation of children when parents are divorced or separated. However, the circumstances under which a court will allow a relocation have varied significantly over time and each case must be judged on the particular facts of the family involved.

If both parents are significantly involved in the children's lives, and the custodial parent does not have a compelling reason for a relocation, a court will likely order that the children not be moved. Under such circumstances the custodial parent can either move without the children, resulting in a change in custody, or abandon the plan to relocate. However, if a non-custodial parent is not involved with the children and/or is not fully supporting the children and the custodial parent has a valid reason for a relocation, such as a job transfer, the relocation of a new spouse, or a relocation to join close family members who have offered support, a court is much more likely to allow a relocation. In all cases, a relocation should only be considered after a careful analysis of the particular facts affecting your family in conjunction with an analysis of the most recent cases involving relocation.

An issue related to relocation that often arises is that of multi-state custody litigation. If you or your spouse relocated to New York or from New York, what state will hear a custody dispute? New York State is a signatory to a statute that allows New York to exercise jurisdiction and hear a custody case only when New York is the home state of the children involved. Home state determination is based upon residency, contact, family ties, and other facts. This issue should be thoroughly reviewed prior to commencing litigation; the commencement of jurisdiction when New York is not the home state will only waste a parent's scarce resources and delay the proper resolution of a custody dispute.

Yes, the Court can impute a dollar amount income based upon the parent's former resources. In other words, the Court can compute income as if the parent was working at the same job.

Yes, a Court can attribute or impute income to either parent from any resources as may be available to the parent. These may include but not be limited to:

• non-income producing assets;
• meals, lodging, memberships, cars or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use or which expenditures directly or indirectly confer personal economic benefits;
• fringe benefits as part of compensation for employment;
• money, goods or services provided by relatives and friends.

Yes, and this is wide ranging and could include anything from a license to practice medicine, a piece of artwork, or a coin collection (passive appreciation).

The "basic child support obligation" is defined in Domestic Relations Law Section 240 (1-b)(b)(1) to mean "the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except an increased pursuant to subparagraphs 4, 5, 6 and 7 of such paragraph."

Child support in New York is based upon a statute know as the Child Support Standards Act, commonly referred to as the CSSA. The CSSA defines "income" and assesses a percentage of that income as "basic child support" to be paid to the custodial parent by the non-custodial parent. In addition to basic child support, there are mandatory "support add ons", including the cost of health insurance premiums, unreimubrsed medical expenses, and daycare expenses, and discretionary add ons, including college expenses.

The calculation of child support is often contentious. A determination of custody must precede the determination of child support and many parents are surprised to find that joint custody does not necessarily result in an equal sharing of the child support burden, even when the parents equally divide their custodial time. The actual determination of child support based upon the statutory percentages is often treated like a simple calculation. However, the determination of what is or is not income, the opportunity to cap basic child support at a statutory $80,000 joint income level, and the division of add on expenses are often complex issues that require a careful analysis of each family situation in conjunction with the many written judicial decisions addressing these aspects of the CSSA.

The age at which child support ceases is 21, although this differs in custody and visitation issues where the age of majority is 18. But, for purposes of the parental support duty, the age of majority remains at 21. A Court may in its discretion deviate from the basic child support obligation if the Court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate. Factors a Court may consider in deviating from the basic child support obligation are:

• The financial resources of the custodial and non-custodial parent and those of the child;
• The physical and emotional health of the child and his/her special needs an aptitudes;
• The standard of living the child would have enjoyed had the marriage of household not been dissolved;
• The tax consequences of the parties; the non-monetary contributions made by the parents toward the care and well-being of the child;
• The educational needs of either parent;
• A determination that there exists comparative financial circumstances between the parents which reflects a wide disparity in gross income between the spouses;
• The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support other than the child of the instant action and whose support has not been deducted from income and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support the children are less than the resources available to support the children not subject to the instant action;
• Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation, provided that the custodial parent's expenses are substantially reduced as a result thereof;
• And any other factors the court determines relevant in each case.

Once arriving at the combined parental income, the sum calculated is multiplied by the appropriate "child support percentage." The "child support percentage" is defined as:

• 17% of the combined parental income for one child;
• 25% of the combined parental income for two children;
• 29% of the combined parental income for three children;
• 31% of the combined parental income for four children;
• no more than 35% of the combined parental income for five or more children.

Gross income means all income from whatever source derived, including but not limited to:

• Compensation for services, including fees, commissions, fringe benefits and similar items;
• Gross income derived from business;
• Gains derived from dealings in property;
• Interest;
• Rents;
• Royalties;
• Dividends;
• Alimony and separate maintenance payments;
• Annuities;
• Income from life insurance and endowment contracts;
• Pensions;
• Income from discharge of indebtedness;
• Distributive share of partnership gross income;
• Income in respect of a decedent; and
• Income from an interest in an estate of trust.

Yes. See Court of Appeals case where, "The stated basis for an exercise of discretion to apply the formula to income over $80,000 should, in sum and substance, reflect both that the Court has carefully considered the parties' circumstances and that it has found no reason why there should be a departure from the prescribed percentage." The Court determined that as there was "no extraordinary circumstances present, application of the statutory percentage to the income above the $80,000 was justified and not an abuse of discretion."

• Mandatory award of child care expenses;
• Discretionary award of child care expenses;
• Mandatory award of health care expenses;
• Discretionary award of child educational expenses--private school and college expenses (Historical Perspective).

Family Court Act Section 454 "Powers of the Court on violation of a support order" provides that upon a finding that a respondent has failed to comply with any lawful order of support, the Court may:

• Enter a money judgment;
• Make an income deduction order for support enforcement;
• Require the respondent to post an undertaking;
• Make an order of sequestration;
• Suspend the respondent's driving privileges;
• Suspend the respondent's state professional business license;
• Suspend the recreational license(s) of the respondent; or
• Require the respondent, if the persons for whom respondent has failed to pay support are applicants for or recipients of public assistance, to participate in work activities as defined in title nine-B of article five of the Social Services Law.

There are additional remedies concerning attorney's fees or jail time. Also, under Family Court Act Section 458-a, if support arrears are equivalent to or greater than the amount of current support due for a period of four months, the Court may order the Department of Motor Vehicles to suspend the respondent's driving privileges. It is unknown as to whether or not there is a current procedure for this in effect. Similarly, Family Court Act Section 458-b provides for suspension of a respondent's business or professional license under similar circumstances.

In Supreme Court, similar provisions apply to suspension of a driver's license under Domestic Relations Law Section 244-b and to suspension of a business or professional license under DRL Section 244-c.

Marital property is all property acquired during the marriage - regardless of how title is actually held. Separate property includes all property acquired before the marriage and also includes inheritance, gifts from third persons, compensation for personal injuries and property acquired after the start of an action for divorce.