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
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. Brian D. Perskin & Associates P.C. is available to assist
you with any questions you may have regarding divorce in New York.