Primarily servicing the greater New York City metropolitan area



LEONARD M.WEINER, ESQ, Ph.D.
DIVORCE SOLUTIONS
206 East 38th Street
New York, N.Y. 10016
(212) 370-1660


THE ADVERSARIAL HORROR

Not long ago Judge David B. Saxe of the Supreme Court in lower Manhattan was going through his calendar like he does every day, when he saw two attorneys who after four months of extensive negotiations and a lengthy hearing, only a month ago had settled their case. He couldn't imagine what they were doing in his courtroom again. They had represented a couple from Westchester who were very well off; the husband was a litigator in a white shoe firm; the wife was an illustrator and was very successful in her business. They had a house, they had a condo near Gracie Mansion on the East side of Manhattan, they had a summer house in the Hamptons-- all of the material wealth one associates with the upper class; these people "had it all". They came to the court with seven psychiatrists to testify as expert witnesses regarding the custody of their children. One psychiatrist represented each child (they had two children), one represented each parent, one represented each side, and the court needed a psychiatrist too, so there were seven. This went on for months. They went through every detail. Custody was assigned; every weekday and every holiday was clearly assigned to one or the other party. The judge said that he even took care of minor holidays which the parties never even heard of. So, he couldn't imagine what they were doing back in his court again. After he completed going through his calendar, the attorneys approached him requesting that they be allowed to talk to him in his chambers. He brought them in and told them to do this quickly because he had to go back to his court.

They began telling him that they had a problem. What was the problem? Even though they had already agreed upon an elaborate and detailed schedule of visitation and custody - namely that the wife, would have custody of the children and the husband would have very liberal visitation rights. Specifically, with regard to the present Hanukkah/Christmas two week holiday the stipulation provided that they would have one week each. Now the husband was asking through his lawyer that this arrangement be changed. The judge said," I don't understand. We spent so much time on this; we went through it in such great detail; it was a FINAL decision. Both your clients signed the agreement; it's signed and sealed. We're not going to start changing it around".

The attorney for the husband said, "Listen, this is a special case. This is a really special case". "Why?" asked the judge. Because the husband has been diagnosed with an illness called ANGIO PSYCHOMA of the kidney, a rare cancerous tumor. He had gone into Sloan Kettering that day for further testing. The prognosis was not good. And, therefore, he was coming to the court to ask the court to allow him to have both weeks with the children, so that he could take them to his parents who were living in Florida and spend both weeks with them, because next year he may not have that opportunity.

The judge turned to the wife and the wife's attorney and said that it sounds like it's a legitimate reason to alter the agreement. " What do you think? Do you have any reason to believe that it is untrue, that it didn't happen? Is he lying?" The wife said" No, I don't think so. But I want what's mine". We entered into a stipulated agreement; we signed the papers. " What's mine is mine. He has one week. I have one week".

The judge was taken aback; "I don't understand", he said. The man is sick; the man is dying. Do you doubt that this is the truth. She again said no; I want what's mine. The judge said, that he believed that there was no reason for him to doubt the husband's statements about his medical condition and was going to allow a modification of the visitation provisions for the holiday week. The attorney for the wife immediately told the judge, that if he was going to make a unilateral decision, he wanted this to go on the record. He demanded that this to be in open court; and to have a record. "I am going to appeal this decision". Not only that, but he demanded that the judge give him the right to subpoena the husband's doctor to come in to testify. The judge was just flabbergasted. He said, "O.K. tomorrow morning, you be here; let all of the parties be here; you'll have your subpoena too, but I want to get this done". The next morning, the two attorneys appeared in court and the judge said: "Are you ready to proceed with the hearing?" The attorney for the husband said: "Judge, I'm sorry but we have to make a change. The husband will not be able to take any visitation at this time. His situation has turned for the worst. In fact, Judge, the husband is not going to be exercising any of his visitation rights. He'll never be leaving the hospital". The judge turned to the attorney for the wife and said: " And you, couldn't you rise above this madness? Where were you? What role did you play in this? What were you doing?" To which the attorney for the wife answered: "I was only representing my client".

COMMENTARY:

This is just a glimpse of the adversarial system in which divorcing couples are trying to resolve marital disputes. This should be a court of last resort; not a court of first resort. And yet, this is where the general public turns to for divorce.


[The following is excerpted from an article written by Cheryl Kupfer entitled "One-Way Ticket To Legal Hell"]
THE LEGAL HELL CALLED “COURT”

It cannot be said emphatically enough that couples that feel their marriage is unsalvageable should at least salvage their divorce. In other words, couples on the brink must attempt to work out, in advance of the breakup, any potential post-marriage issues (i.e. custody, visitation, division of marital assets, etc.) themselves.

A few words of wisdom to each and every man and woman facing the reality of divorce. Do not allow your life and those of your children to be hijacked by outsiders (i.e. adversarial lawyers, judges, psychologists and guardians, etc.) in the misguided belief, fueled by anger or greed or a vindictive desire to punish, that you will come out ahead. You, not your spouse, may well turn out to be the Big-Time Loser; both financially and emotionally.

There is no polite way to say this. If you think, even for a moment, that the court will take what you say at face value and give you everything you ask for, you are as big a fool as a moth heading straight toward a burning light bulb.

When divorcing couples "out-source" the adjudication of their major disputes, they essentially give up the freedom and entitlement to make decisions regarding their children and assets. They effectively hand over their right to determine the course of their personal lives to total strangers - people who the day before did not even know they existed. These strangers, for the most part, are indifferent to their concerns and come with their own ingrained biases, beliefs, and prejudices and will make life-altering decisions for the couple and family. Once a decision is rendered, refusal to abide by such decision will result in serious sensor and punishment by the court.

When you take your dispute the court you are effectively saying, "Your Honor, you do not know me or my family from Adam, but I am going to let you and the officers of the court, " adversarial lawyers, court-appointed psychologists, guardians, advisers etc."dictate if my kids will be living with me, and if not, when I will be able to see them. If I do not follow your orders, exactly - if I try to see my son on Saturday instead of Wednesday - you can find me in contempt and put me in jail. And for all this, I will end up paying a fortune, using up my life’s savings, and even going into debt or borrowing from everyone I know.

I am reminded of a true story regarding a young mother who was mired in a vicious custody fight over her children, all under the age of six. The judge appointed a woman to do home visits, when the kids were with their mother and when they were with their father. Her job was to watch the children's interactions with each parent and with each other and give her "expert" opinion regarding whom she thought the children would be better off with.

This court-appointed "expert", we will call her Kristina, seemed startled and a bit put off when the mother, after offering a cold drink, asked her about her credentials. In between puffs on her cigarette she rattled off her "relevant" degrees in art history and English literature. Noticing that Kristina was not wearing a wedding band, the mother asked her if she was married. No, Kristina responded, she was not. The mother soon realized that this court-appointed "expert" was to report to the judge regarding the placement of her children was a never married, chain-smoking woman in her late thirties with no siblings.

Meanwhile, the court-appointed "expert" giggled as she proudly recounted how her parents would leave her behind in America each summer while they gallivanted through Europe. "I was so independent," she brayed as she sucked on her cigarette, using the butt of one to light up the next.

It was therefore no surprise, though most disconcerting just the same, to the mother when “Miss Court-Appointed Expert” wrote in her report that the kids’ father should get primary custody. The mother made a frantic call to her lawyer, who assured her the judge is never going to follow the recommendations of the "expert", and that “none of them took her seriously”. The mother felt so much better as she wrote out a check mandated by the court to pay its "expert" for her time.

As for the custody battle, the lawyers, both hers and her ex-husband’s, managed to stretch out over several years, the court case that should have been easily resolved in a couple of weeks. The legal fees amounted to hundreds of thousands of dollars; a nice haul that surely contributed to the lavish lifestyles of these officers of the court, who routinely took overseas vacations and put their offspring through exclusive colleges. Years later, the children of the now-struggling mother had to take out student loans to pay for their educations.

The financial toll alone should give serious pause to couples unwilling or unable to pursue a "simple" divorce and resolve their issues on their own.

True, if both spouses had the ability to compromise, capitulate and cooperate in order to emerge with an acceptable division of what is mutually theirs, they most likely would not be divorcing in the first place. If they were incapable of maintaining a "give and take" relationship while they were married, they obviously are not going to take on those abilities now that the marriage is coming to an end.

But all concerned should know that it in an ironic kind of way, a "good" divorce is as crucial for a family's future well-being as a good marriage, maybe more so. And a good divorce means both spouses giving up, giving in and, most important, keeping adversarial lawyers in particular, out of it, since it is their job to do what is best for their client (i.e. get the most money), not what is best for the family.

Perhaps the most horrific aspect of any custody fight is the Solomon-like role-reversal children find themselves in when asked which parent they would prefer to live with. For these children it is a lose-lose situation, as either answer will upset one of the parents. The extreme stress, anxiety and guilt accompanying this request made by the judge and the respective lawyers, often in the judge's chambers, can psychologically damage a child for life and compromise his or her relationship with both parents, with siblings, and later with society in general.

Yes, having to sit down with a soon-to-be ex-spouse to try to resolve the distribution of mutual assets and child custody, can be stressful and painful, especially if the parting couple cannot stand being in the same room anymore. But it's nothing compared to the hell awaiting them if they do not.

COMMENTS: Divorce mediation, under the supervision of an attorney-mediator experienced in matrimonial matters, provides a unique alternative to the adversarial system so disdained in the above referenced article. Such an attorney-mediator can bridge the gap between the warring parties and provide a neutral forum through the mediation process to allow the parents to resolve their outstanding issues.
MEDIATION CAN HELP!
Your comments are welcomed.
Leonard M. Weiner, Esq./Divorce Solutions


THE ADVERSARIAL SYSTEM STINKS!

I received notice today that the divorce that I sought from my husband was denied by the judge that heard our case. After his living in another residence for nearly two years, his paying no support to his daughter, no support to the home in which I live with his three children (two of whom are emancipated) the judge decided that we could not be divorced. The judge said that I had not met the burden of proof for abandonment.

In the 21st century I would like to know how someone can tell a couple who have been separated for two years that they cannot get divorced? I now have no recourse but to stay married to someone with whom I cannot even carry on a conversation. Someone with whom my daughter refuses to spend any time alone. Someone who is entitled to half the equity in my home even though he has paid zero toward the house in two years.

New York State needs to move into reality. Sometimes marriages just don't work. What is the benefit of keeping two people married when they are obviously so far apart that nothing will bring them back together?

I have spent nearly $4000 to procure this divorce which I have now been denied. I am raising a child on one income as a medical secretary and the last thing I need is another bill to pay off. I feel as though I am being held hostage by the state of New York.

Do I have any more options?

COMMENTS: Yes, absolutely ! You can choose to mediate your divorce instead of litigate it and take the matter out of the hands of the Courts and insesitive judges.

Leonard M. Weiner, Esq./ Divorce Solutions