Terri L. Weiss is a martimonial lawyer at Marino & Weiss, P.C., Attorneys at Law in White Plains, New York. Ms. Weiss is a Fellow of the American Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers, and is on the Board of Editors of the Journal of the American Academy of Matrimonial Lawyers and the Matrimonial Strategist. She is a frequent lecturer and has authored a variety of articles in the field of matrimonial law. Ms. Weiss can be reached at famlawny@aol.com or 914/761-0640.

Recently, Ms. Weiss took time out of her busy schedule to answer The Modern Woman’s Divorce Guide’s questions about divorce.

1. What are the grounds for divorce in your state? Abandonment (physical and constructive) for more than 1 year prior to commencement of action, adultery, cruel and inhuman treatment that renders it unsafe and improper to reside with spouse, execution & filing of separation agreement and compliance with its terms 1 year prior to commencement of action, residing separate and apart under separation decree and compliance with its terms for 1 year prior to commencement of action, imprisonment for 3 or more years.

2. Does fault (such as infidelity or domestic violence) affect the outcome of a divorce in your state? If so, how? Yes, but not to the extent of impacting equitable distribution unless the violence or adultery is truly extraordinary, but to the extent that it’s used as a negotiating tactic. It can delay the conclusion of a case until one party gets what they want to “punish” the other with huge legal fees, personal & emotional scars and the use the children as pawns against the other spouse (which, in turn, can also affect custody and visitation issues). It is also used to try to prejudice a party in front of a judge – some judges react (favorably or unfavorably to the accuser), while others are indifferent. It also affects the way some lawyers behave – sanctimoniously, angrily, etc. – by their assuming the persona of the client and thereby prolonging the case, increasing fees, etc. The list goes on. The abuse of fault requirements is made by men as well as women.

3. If a woman is preparing for divorce what, if anything, can she do to improve the outcome of her case? Among other things: Organize her financial records, keep a daily or at least regular and detailed journal of major events during the marriage, copy everything, photograph the parties’ homes(s) and possessions, maintain lists of both spouses’ property, avoid personal improprieties, protect separate property, there may or may not be a need to protect up to one-half of marital property (but NOT MORE than ½!), if there is any violence occurring go to court for an order of protection, get a private mailbox to receive communications from her lawyer, keep her personal computer records including hard drive data in a safe place, keep separate assets (e.g., bank accounts) separate and do not allow access to them by the spouse, “red flag” all joint accounts with the financial institutions to prevent the unilateral withdrawal of funds by the other spouse, track down records of all gifts (especially financial gifts) made just to her, always destroy bank and credit card solicitations that contain checks (to avoid forgery by the other spouse), and DO NOT ever secretly tape record the children especially with the other spouse. Avoid confrontations with her spouse and his significant other, if any, especially in front of the children. If the husband is the primary wage-earner, delay commencement of the action because the non-passive marital assets will no longer accumulate once a case is begun. Again, the list is long and depends on the particular case. This advice is identical to what I would tell a man.

4. What are some of the biggest obstacles women face in divorce? Depending on the case, these include: (1) Fault requirements which prevent women from being divorced quickly without having to go through the expense, emotional turmoil and delay of proving fault; (2) ignorance of the existence, nature and amount of marital assets; (3) poor organization of information and finances; (4) preoccupation with the “blame game”; (5) feeling entitled when married to a wealthy spouse; (6) lack of education, experience and skills to maintain current standard of living because of homemaking requirements; (7) child-rearing responsibilities interfering with ability to obtain employment in the future; (8) feeling a necessity to hire a “pit bull” lawyer without recognizing that if both lawyers work well together the case will be resolved more cheaply, more quickly and probably more fairly to everyone without causing a huge financial and emotional drain; (9) not recognizing that passive aggressive behavior is just as counter-productive and as provocative and overtly aggressive behavior; (10) comparing their particular case to their divorced friends who give them their “legal” opinions of the case; (11) guilt; and (12) failure to have sufficient emotional and financial resources to withstand a potential extended battle. All of this also goes for men, depending on the case.

5. When should a woman take her case to trial? When shouldn’t she? It is always foolish to go to trial and look to someone else to render a decision instead of working things out between the parties. However, only a court can provide relief if the other party, among other things, is violent, stealing from the spouse, hiding assets, cutting off access to money (e.g., canceling credit cards), or preventing the other parent from being with the children. The only time any one should go to trial is if the other side is not being reasonable about a financial settlement or is acting contrary to the best interests of the children. As always, the same advice is true for men.

6. How can a woman make divorce easier on her children? Don’t make them feel that it’s their fault that the marriage is over, don’t fight with the spouse in front of or within visual or audio distance of the children (that includes voice mails, phone calls and e-mails that the children may see or hear), don’t “trash” the other parent to the children or allow friends and family to do so or take sides, allow the children to express their grief and to obtain professional mental health care support if needed, don’t engage in romantic relationships with others in front of the children, don’t make a spectacle of the deteriorating marriage or a new relationship in public, don’t threaten the children if they want to continue their relationship with their other parent, encourage contact with the other spouse, in the event of abuse obtain immediate court protection for the children to protect their safety, don’t interrogate the children about their communications with or observations of the other parent, don’t overreact to basic events in the children’s lives involving the other parent (e.g., making false accusations of abuse, exaggerating minor household accidents, claiming that pre-existing or current occasional homework issues are the other parent’s fault, etc.), and make sure the children are properly fed, bathed, dressed and receive prompt medical attention where appropriate but without being obsessive about it. As always, I would make these recommendations to either parent, depending on the case.

7. What qualities should a woman look for in a divorce lawyer? Either party should feel comfortable with his or her lawyer on a personal, financial, professional and ethical basis. The lawyer should specialize/concentrate in matrimonial law and know when another professional (e.g., an accountant, appraiser, bankruptcy expert) is needed. Remember that the matrimonial lawyer is not a mental health professional. The lawyer should be responsive, know when to stop engaging in battles with opposing counsel, and know when the client needs to be under control. The lawyer should not be ego-maniacal or overly aggressive or abusive about the spouse and opposing counsel (where relevant). This advice is identical to what I would tell a man.

8. What should a woman do if she disagrees with her divorce lawyer’s recommendations? Find out the basis for the lawyer’s recommendations and calmly evaluate whether they are logical and reasonable. Consult another lawyer if desire for a second opinion. The client may need someone else (such as a family member or close friend) to “run interference” if she doesn’t understand or accept the reason for the recommendations. The attorney-client relationship can be terminated by the client at any time for any reason. Depending on the case, the dispute can be a question of ethics or legality by the client or the lawyer. If it’s the client’s conduct that’s at issue, the lawyer must notify the court and may be allowed to terminate representation if there’s an action pending. If the client believes that the lawyer is being unethical or proposing foolhardy or illegal acts, the lawyer should be terminated from further representation and may be reported. Comparing her own case to other people’s cases is usually a bad idea, because each case is different. A breakdown in attorney-client relationship is generally sufficient to terminate the relationship.

9. If you could impart any of your wisdom to a woman who is going through divorce, what would it be? Be reasonable, protect your assets, have a solid emotional and financial support network, don’t be consumed by anger or other emotions, keep your children feeling safe and comfortable with both parents unless there are extreme circumstances, be organized, be realistic, and unless custody is really an issue remember that the fight is over money –which has to be treated like a business deal. Again, the list is long and depends on the particular case. This advice is identical to what I would tell a man.

10. Are there any divorce books or resources that you would like to recommend to women going through divorce? The American Academy of Matrimonial Lawyers has an excellent web site where there are some excellent downloadable materials. Many states have official court web sites containing forms and information, but being a do-it-yourself lawyer is a very bad idea. The American Bar Association’s Family Law web site also has excellent information, as do the Family Law sections of many state bar associations. Stay away from do-it-yourself divorce books and software. There are some decent articles on DivorceSource.com but, since the quality of those articles can vary, the AAML is the best and most reliable source of information. This advice is identical to what I would tell a man.

This article is not legal advice. You should consult an attorney if you have questions that relate to your divorce and finances.

Technorati Tags: New York matrimonial divorce lawyer Terri L. Weiss family law Interview Series grounds children child custody books division of assets marriage relationships women woman law legal blog family