Litigation

When spouses decide to get divorced, the situation can progress in many ways depending on many factors.

Where there is mutual acceptance and agreement and the main issues can be resolved amicably, a divorce can be a relatively quick and stress-free process.

However, many divorces in New York run into problems, creating delays, expenses, and disputes.

Where collaboration between lawyers does not work, and mediation cannot resolve differences, litigation may be the only option remaining.

At the Law Offices of Mona R. Millstein, a seasoned divorce litigation lawyer can help you protect your interests in court but not without first exploring the possibilities of mediation.

Divorce mediation vs. divorce litigation

Sometimes, divorces in New York come down to the option of choosing mediation or litigation. These are very different approaches to the same problems.

What is litigation?

Contrary to popular belief, only a small percentage of divorces in New York end up at trial with a judge deciding on the main issues in the courtroom.

Litigation is generally the most costly, time-consuming, stressful, and adversarial method for settling disputes in a divorce. It requires a divorce litigation attorney to represent each party and usually results in a “winner” and a “loser” though the judge will seek a fair and equitable outcome.

Before you get to this stage, you and your spouse will be provided with ample opportunities to resolve matters more amicably through other means.

Sometimes, however divorce litigation is unavoidable as no common ground can be found between spouses.

If litigation is the only way forward for your divorce, Mona R. Millstein is experienced at fighting for your best interests in court.

What is mediation?

Mediation is an alternative dispute resolution method that can save time and money during divorce proceedings.

The mediation process may be voluntary or court-ordered. It involves divorcing or separating couples meeting in the presence of a qualified and neutral mediator who will attempt to facilitate an agreement on the outstanding issues.

There is no winner or loser at the end of mediation. Mutually beneficial outcomes are sought and couples retain the power to make decisions rather than relying on the decisions of a third party.

Also, the results of mediation remain confidential – unlike a court case, which is a matter of public record.

Mediation is generally preferred by New York judges as a more cooperative way for spouses to settle matters and compliance rates are high. Often, it is preferable to litigation for spouses too, especially if there are children to consider or property division issues to discuss.

If this is the case with your divorce, Mona R. Millstein can help to mediate a resolution between you and your spouse.

How does divorce mediation work?

A mediated divorce agreement is custom-made and can decide important family and financial issues, such as:

• Custody and parenting
• Financial support (child support/spousal support)
• Property division
• Tax and other financial issues

Generally, the divorce mediation process starts with a nominated mediator (hired with the agreement of both spouses) meeting individually with both parties. This will help determine what the goals and expectations are for each spouse and what the key differences between them are.

Further sessions are then held where both parties are present with the mediator (in rare cases, the spouse’s lawyers may also attend) with the aim of brokering a mutually acceptable agreement on some or all of the outstanding issues.

The divorce mediator facilitates the discussion, attempting to guide the couple towards common ground, informed decisions, and reasonable solutions. However, the final decision on whether or not to accept the terms, negotiate further or halt the mediation process rests with the spouses.

If there is agreement on some or all matters, a written document detailing the agreements will be prepared by the mediator. Depending on circumstances, this may be in the form of a Memorandum of Understanding, a Separation Agreement, or a Marital Settlement Agreement.

If all matters are resolved, no divorce litigation will be required.

How does divorce litigation work in New York?

With divorce litigation, both you and your spouse retain separate legal counsel.

Firstly, a Summons with a Notice or Verified Complaint is filed and served on the other spouse (the “defendant”). An “answer” is served and filed.

After this, the “discovery” process begins. The following may be part of this process:

• Demands for financial documents
• Motions to the court for relief while the divorce case proceeds
• A judge is assigned
• Appearances are scheduled for both parties and their attorneys
• Temporary orders issued (custody/support)
• Experts in forensic accounting or mental health issues are requested

During this process, there may still be opportunities to settle issues by mediation and prevent a trial. However, if a trial is necessary, the parties and their attorneys will gather evidence and prepare a case on the outstanding issues to present before the judge.

​If psychological assessments or other expert analyses are required, the process can take many months or even over a year. The timing is also dependent on the judge’s availability (most New York judges have busy schedules).

After the trial, the judge will make a decision (which may be open to an appeal) and final judgments and court orders may be issued based on this.

Hire a divorce litigation lawyer in New York City

At The Law Offices of Mona R. Millstein, we have helped many individuals move on from challenging divorce litigation in New York.

Start with a case evaluation with an experienced family law attorney who can advise you on the recommended next steps.