Couples Seek Divorce Options

Long Island Business News by Bernadette Starzee

Published: July 7th, 2010 - Divorce is never easy, but since the economy went south, it has been financially prohibitive for many couples.

According to a survey by the American Academy of Matrimonial Lawyers, 57 percent of attorneys noted fewer divorce filings from the last quarter of 2008 to the same period in 2009, compared with just 14 percent who reported an increase.

“People have been more concerned with economic survival than divorce,” said Sari M. Friedman, a Garden City attorney who practices matrimonial and family law. “In many cases, divorce would mean liquidation of real estate that the couple couldn’t sell.” Friedman said her divorce filings dropped off significantly following the economic collapse in 2008, but since the New Year, they have been slowly picking up.

While a tough economy can lead to increased marital stress, it keeps some marriages together, as couples realize they can’t afford to divorce and bear the expenses associated with maintaining two households. “We have gotten a lot of calls, but not everyone goes through with the divorce,” said Charles J. McEvily, a matrimonial attorney who is a partner at DaSilva Hilowitz & McEvily in Garden City.

During the bubble, things were different. “People with $100,000 in credit card debt and $80,000 in home equity loans would borrow money to pay for the divorce,” McEvily said.

The one subgroup for which McEvily has noticed a spike in divorce is business owners who want to pay their partners their share of the business while valuations are low.

Many of those who are navigating divorce are seeking lower-cost alternatives to hiring a litigation attorney.

“I’m finding that more people are trying to represent themselves initially,” said Joseph Trotti, a partner at Vishnick McGovern Milizio in Lake Success, whose areas of focus include matrimonial and family law. Trotti noted that individuals are obtaining divorce packets and following the steps, but about halfway or through the proceedings, many come to the realization that they need representation. “After they have a conference with the judge, they realize they’re in over their heads,” he said.

Mediation and collaborative divorce are alternatives that can be significantly less expensive for some couples. In the former, a mediator, who may or may not be an attorney, facilitates the discussion between the two parties and provides information and suggestions to help them arrive at an agreement.

Collaborative divorce is a relatively new concept. “It has been available on Long Island for about five or six years,” said McEvily, who estimates that about 5 percent of the region’s attorneys, including him, are trained in the process. In this type of divorce, both parties are represented by attorneys who work together, often with neutral financial specialists and mental health counselors, to arrive at a resolution that suits both parties.

To get the word out about the concept, McEvily recently joined several other Long Island professionals to launch Collaborative Dispute Resolutions, a Westbury-based group comprised of independent attorneys, mental health professionals and a financial specialist.

One of the attorneys is Harriette M. Steinberg, a partner in the Westbury family law practice of Steinberg & Early-Hubelbank, who described the collaborative concept as a paradigm shift in how attorneys negotiate a divorce. “Attorneys have been trained to be adversarial,” she said. “In the collaborative process, they have to rethink their approach and work as a team.”

In a collaborative proceeding, attorneys sign agreements with their clients stating that if they do not reach a settlement, the attorneys cannot represent the parties in litigation. Full disclosure on the part of both spouses is also a requirement; if one party wants to hide finances, it will not be permitted by the attorneys.

While Steinberg noted that the group does not market collaborative divorce as being less costly, it often turns out that way. In 2008, The Wall Street Journal reported that collaborative divorce typically costs less than $20,000, versus $27,000 for the average divorce negotiated by rival attorneys or $78,000 for a divorce that goes to trial.

According to Steinberg, the major benefit of collaborative divorce is that it helps limit hostility and therefore protects any children involved. Even in cases where there are adult children, she noted, divorced couples benefit from a civil relationship, for the sake of family events and matters involving grandchildren.

“Usually, one party wakes up and decides the marriage is over,” Steinberg said. “It might take them one year or five years to take action, but in the meantime, they have been making plans for their post-divorce life.

Our mental health counselors help the person who is the last to know, to help him or her accept what will happen.”

However, Friedman argued, when two parties have different motivation levels, litigation may be needed to move things along. “In a vast number of cases, you have one person pushing to get it done, and the other is happy with the status quo and doesn’t care if the divorce happens until 2020,” she said. For instance, the husband may be the bread winner, and the wife may realize her income and standard of living will be lower after the divorce. “She may have her problems with the relationship, but money talks and lifestyle talks,” Friedman said. “If you cut off in terms of your arsenal the ability to go to court, you may have a case that goes nowhere.”

McEvily, on the other hand, believes 80 to 90 percent of couples can succeed at collaborative divorce with the right support team. “In extreme cases, like domestic violence or if one of the parties is psychotic, it isn’t a viable option,” he said. “But we have been in the industry for a long time and we feel that, for those couples for whom collaborative divorce could work, it’s a better option.”

New York appears on the brink of passing a no-fault divorce law, which would make it the last state in the union to get aboard the no-fault bandwagon. The law would allow a couple in New York to end their marriage by mutual consent rather than requiring one spouse to accuse the other of wrongdoing.

If the law is passed, Friedman does not expect the average cost or amount of time it takes to get a divorce to be significantly impacted