Legal Separation Lawyers in Rochester Ny - DOC

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					                              Accrediting New York Mediators Since 1986

                       585 Stewart Avenue / Suite 610
                           Garden City, N.Y. 11530
               Log on to regularly
            September 2010 Monthly Mailer       Vol. 6, Issues 4-8

The information, opinions, references or other materials herein should not be considered legal advice
  on specific subjects, but rather should alert readers to issues which are raised during mediation.
  Actual application of any of the matters discussed depends on the facts in each case. Readers and
         their clients should obtain specific advice from the most appropriate professional.

   The views expressed by the authors or submitters in this Monthly Mailer are (but not necessarily)
      their own and do not necessarily reflect those of the NYS Council on Divorce Mediation. We
 encourage healthy debate and welcome readers to submit articles expressing their constructive views
of topics covered in this publication. If any submission is not deemed appropriate for publication here,
it will be submitted to the editors of the Mediation Council News (the joint newsletter of the NYSCDM
       and the Family and Divorce Mediation Council of Greater New York) for evaluation and a

Board of Directors

Dan Burns - President, Beth Danehy, Bobbie Dillon, Al Frankel, Ada Haslocher, Chris
Hickey, Bill Hoefer, Kathy Jaffe, BJ Mann, Tim Mordaunt, Clare Piro, Sydell Sloan,
Mike Stokamer, Rod Wells, and Bill Wiesner.

The Monthly Mailer is compiled and distributed for the Council by

Eli Uncyk, Esq., Matthew Millman, Esq., and Thomas Tumino, Esq.
Uncyk, Borenkind & Nadler, LLP
555 Fifth Avenue, 18th Floor;
New York, NY 10017
Tel: 212-575-1292, ext. 117; Fax: 212-768-4469
Carol A. Butler, Ph.D. (, co-author with Dolores Walker
The Divorce Mediation Answer Book.
Monthly Mailer, Vol. 6, Issues 4-8
New York State Council on Divorce Mediation

                This edition of the mailer is also available at

I.     A Note from Eli Uncyk

        I especially want to thank Thomas Tumino, Esq., who (during his brief sojourn at
        our firm) did a thorough, scholarly and very informative analysis of the new
        legislation affecting family law. He was even able to keep it short enough to
        understand; and clear enough to reach all readers, whatever their background.

        Tom‘s efforts are a great contribution to this Mailer and to our members.

                                                      Eli Uncyk


        On August 13th, 2010 the Governor signed into law legislation to establish no
        fault divorce, to change counsel and expert fees and alter spousal support statutes.
        A mini-conference covering the new laws (presented by NYSCDM) will be held
        on September 11th, 2010 featuring NYSCDM Board Member Christine Hickey,
        Esq. of CNY Mediation Services, Inc. For more information on this mini-
        conference, email Christine Hickey, Attorney & Mediator at mchickey@a- and see below for further discussion of these important pieces of


        There are events of interest to members of the Council throughout the state.
        Among them are events regularly run by the New York City Bar Association
        (NYCBA). Visit the NYCBA website regularly to view articles, events and
        discussions. Most helpful is the Small Law Firm Center (the director is Alla
        Roytberg, Esq.):

        1.     SAVE THE DATE – NYSCDM Upstate Mini-Conference: “Best

                JUSTIN'S GRILL-
                6400 Yorktown Circle
                East Syracuse, New York 13057

Monthly Mailer, Vol. 6, Issues 4-8
New York State Council on Divorce Mediation

              Saturday, September 11, 2010, 9:00 A.M. – 3:20 P.M.

              More Info:
              Contact Beth Danehy, MA at or Christine
              Hickey, Attorney & Mediator at

              Unauthorized Practice of Law with Ed Thompson, Attorney in Charge,
              Syracuse Attorney General's Office.

              Web Advertising and Drafting Documents: What Crosses the Line from
               Ethical to Unethical? Or New Laws Impacting Divorce (see 2:30-3:30)
              (depending upon demand) with Christine Hickey, Attorney & Mediator.

              Building Your Mediation Practice Using Social Media and Analytics with
              Wendy Brabon, Owner,
              New Laws Impacting Divorce: No-fault, Counsel and Expert Fees, Spousal
              Maintenance with Christine Hickey, Attorney & Mediator.

        2.    SAVE THE DATE – The Association of Family and Council
              Courts (AFCC) Ninth Annual Symposium on Child Custody
              Evaluations will be held on October 28-30, 2010 in Cambridge,

              AFCC‘s Ninth Symposium on Child Custody Evaluations offers a wide
              range of pre-conference institutes, workshops and plenary sessions
              addressing practice skills, professional issues and advanced applications.
              The Symposium is designed for custody evaluators, judges, lawyers,
              mediators and anyone who works with separated and divorcing families. For
              more information, view, call (608) 664-3750, or

        3.    SAVE THE DATE – Association for Conflict Resolution (ACR)
              10t Annual Conference, Chicago, Illinois, September 1-4, 2010

              ACR's 10th Annual Conference provides the opportunity to step back and
              reflect on changes witnessed, challenges met and prospects for the future.
              ACR‘s 2010 Conference is an excellent time to celebrate the essence of
              ACR, an organization that embraces and acknowledges the full spectrum of
              peaceful conflict resolution and recognizes the value of cross-disciplinary
              and cross-cultural connections to enhance conflict resolution choices
              universally. The ACR‘s conference theme is "Many Paths: One

Monthly Mailer, Vol. 6, Issues 4-8
New York State Council on Divorce Mediation

              Annual Conference registration may be completed online at
     Please be sure to log in to receive the discounted
              member rate. Early registration rates apply. For hotel reservations at the
              Hyatt Regency Chicago, please visit the following website:

        4.    SAVE THE DATE – New York State Dispute Resolution
              Association‟s (NYSDRA) 25th Annual Conference: Rooted in
              Resolution, October 21-22, 2010, Troy, New York

              Conference highlights will include the following:
              - Workshop addressing all parts of the profession – from roots, to branches
              to leaves.
              - A celebration of the past 25 years of dispute resolution.
              - Up to 4.5 available CLE credits for both experienced and newly admitted
              - Award presentations
              - 2010 NYSDRA Membership Meeting.
              - Great food and networking opportunities.

              More Info:

        5.    SAVE THE DATE – International Academy of Collaborative
              Professionals (IACP) Annual Networking and Educational Forum
              – “Creating the Collaborative Connection, Commitment,
              Competence and Community” to be held on October 28-31.

              More Info: and

              Forum Registration:

        6.    SAVE THE DATE – ACR Teleseminar Upcoming Schedule,

                                        September 1, 2010
                              Addressing Conflicts in Blended Families
                                    Susan Harris, Clyde Bailey

                                           October 6, 2010
                               Strategies for Long Distance Parenting
                                         Marilyn McKnight

                                      November 3, 2010
                  The Use of Mediation to Help Abused and Neglected Children
                                      Gregory Firestone

Monthly Mailer, Vol. 6, Issues 4-8
New York State Council on Divorce Mediation

                                        December 1, 2010
                      Drafting Parenting Plans that Really Work for Families
                                       Rebecca MaGruder

              Note: ACR will be using a new teleconference provider. To participate in
              this and future teleseminars, call (218) 862-1000; when prompted, enter pin
              number 204256#

              Participants that are ACR members are welcome to log on to the Family
              Section of the web site. Please note this is separate from your ACR web site
              log on name and password. Consult the Family Section web site for

              Recordings of the teleseminars are available. Please consult the Family
              Section web site for more information.

              Participating in Family Section teleseminars will provide continuing
              education credit for Advanced Practitioners. Simply record your
              participation on your ACR Continuing Education reports.

        7.    SAVE THE DATE –American Bar Association Mediation
              (ABAM) Teleconference-CLE Opportunity

                         Use of Caucus in Mediation: A Point/Counterpoint

                                          September 14, 2010

                                    12:00 - 1:15 PM Eastern Time


        8.    Manhattan Peer Group Meeting

              The next Manhattan peer group meeting will take place on September 20th
              and is oversubscribed. However, there is a waiting list. All peer group
              sessions are at the office of Elaine Nissen, 500 5th Avenue (42 Street).
              Please contact Mike Stokamer by e-mail at with any
              questions concerning the peer group of if you would like to be notified of
              the details of the next meeting.

              All divorce mediators are welcome. There is no charge, and there is no
              requirement that attendees be members of the NYSCDM or any other

        9. The NYSCDM now has a YouTube Presence

Monthly Mailer, Vol. 6, Issues 4-8
New York State Council on Divorce Mediation

              To see the latest videos from NYSCDM, please visit:

        10.   The FDMCGNY now has a Facebook Page

              Facebook users can now join the FDMCGNY Facebook page; just search
              for Family and Divorce Mediation Council of Greater New York within


        1.    Mediator and Drafter Issues

              ASK THE ETHICIST, compiled from various sources by Beth D. Danehy, MA

              Dear Ethicist,

              I am a therapist-mediator. I am considering offering, as a service to my
              clients, to prepare the separation agreement and fill out the divorce forms,
              all of which will ultimately be filed with a court. Hiring an attorney to
              complete those steps is unnecessary, right? Is this practice beyond the scope
              of what a mediator can provide? Would this practice constitute the
              Unauthorized Practice of Law?


              Dear Confused:

              Thank you for bringing your question to my attention. This issue is the
              subject of much debate. As mediators, much of the services we render are
              not ―legal services‖ at all, as we are facilitating understanding and
              communication. We guide clients to discuss essential issues; we check in to
              make sure that they have sufficient information on which to base decisions.
              But I am concerned that what you propose to do could leave you vulnerable
              to a charge of unauthorized practice of law. Only those licensed to practice
              law by their State bar association are permitted to draft legal documents and
              give legal advice. The divorce forms that are required for submission to a
              court in order to obtain a judgment of divorce as well as the separation
              agreement are considered legal documents. Thus, only attorneys may assist
              parties in the preparation of those documents, even if the parties intend to
              submit the forms themselves as pro se litigants. Of course, an exception is
              that parties themselves may prepare the documents on their own behalf.
              While there are some exceptions regarding the preparation of legal
              documents, for example real estate brokers or bankers may complete simple
              legal documents that are incidental to their profession and require no
              imparting of legal advice, no such exception has been made to date for
              mediators who are not licensed to practice law. Thus, were you to prepare

Monthly Mailer, Vol. 6, Issues 4-8
New York State Council on Divorce Mediation

              the separation agreement and/or divorce forms you risk being charged with
              the unauthorized practice of law. In 2002, the American Bar Association
              passed a resolution under which non-attorney mediators may draft the
              separation agreement under stringent conditions, namely, that the agreement
              reflects only what the parties agreed to and nothing more, including no
              boiler plate legalese, unless the parties agree to the additions and are
              represented by counsel. However, this resolution has not been adopted by
              the city or state bar associations of New York State and case law has not yet
              tested whether or not the courts would carve out an exception for non-
              attorney mediators to draft legal documents. Most mediation trainings
              advise that mediators prepare a Memorandum of Understanding (MOU)
              which summarizes the details of the agreement, and then refer the clients to
              an attorney, to turn the MOU into a stipulation. There are some attorney-
              mediators who no longer draft stipulations, so that they don't blur the line
              between their work as a mediator, and that of an attorney. So to conclude, it
              would be risky to do the things you propose to do. It is considered outside of
              the scope of mediation.

              The Ethicist,

              Compiled by:
              Beth D. Danehy, MA
              Mediation and Conflict Resolution Services
              16 North Goodman Street, Suite 110
              Rochester, NY 14607
              (585) 244-1600


        1.    Equitable Distribution of Disability Pension Rights

              For information about the NYS Teachers Retirement benefits and how
              equitable distribution/survivors benefits work (among other information),
              try the following site:

              The following exchange was copied and reprinted from the NYSBA Family
              Law listserv, and may be of use to mediators and attorneys who serve clients
              with New York State and New York City benefits which may be the
              subjects of equitable distribution, maintenance and child support. Subject is
              --an accident disability pension under Section 13-258 of the Administrative
              Code of the City of New York ( Also see
              Howe v. Howe .

              Initial Question:

Monthly Mailer, Vol. 6, Issues 4-8
New York State Council on Divorce Mediation

              My client is a retired former member of the NYS police. He has a pension
              awarded under Section 363 of the Retirement and Social Security Law
              (―accidental disability retirement‖). I know that under the Court of Appeals‘
              decision in the Dolan case (78 NY2d 463), no portion of an accident
              disability pension under Section 13-258 of the Administrative Code of the
              City of New York is marital property, as that pension is based on physical
              and mental incapacity proximately resulting from city service and not length
              of service. Does anyone happen to know if the same applies to my client‘s
              pension under Section 363?

              I was unable to find any reported cases dealing specifically with that section.
              Thanks for any light any of you may be able to shed.


              Response #1:

              My understanding is that there are two parts to every disability pension, part
              one is based upon the injury, i.e., in the nature of personal injury and
              separate property; the second part, based upon time and service is marital to
              the extent earned during the marriage. But keep in mind that the early
              payment portion (before normal retirement age) is because of the injury.
              Plus the pension is greater than based solely upon time in service, so even
              after the normal retirement age, a portion of the monthly benefit is separate

              Response #2:

              No, there are no such parts. That is the problem, these cases were decided
              with language to suggest that there are "parts" or components, but it is not in
              fact the case.

              In an Accident Disability Retirement, for example, the participant gets a
              75% tax free (federal AND state) retirement allowance, based on FAS (final
              average salary) at the time of disability. They get this WITHOUT regard to
              service. Moreover, the Retirement System (any of the Systems in NYS or
              NYC) do not parse out a disability component to the pension and a service
              component. There is no such thing. In order to get the System to apply the
              marital coverture formula (I prefer to use coverture because people invest
              the term "Majauskas" with all sorts of meaning it may or may not have), to
              the "service-related" pension, you have to specifically ask the System to
              calculate a hypothetical service retirement, based on salary and service at
              the time of the disability, and provide that monthly amount to the AP.

              Another argument would be to say that part of the compensation for
              personal injury is the fact that the Participant gets his or her benefit NOW,
              without having to wait until retirement age. So, an alternative might be to

Monthly Mailer, Vol. 6, Issues 4-8
New York State Council on Divorce Mediation

              defer payment to the spouse until the participant would have been eligible to
              receive a service retirement, then give her the service retirement which
              would have been paid at that time.

              Response #3:

              All I will say is that just as a pension appraiser will break down components
              of a pension between marital and separate, an appraiser will also evaluate to
              determine what the retirement benefit was as of the date of the injury, as if it
              did not occur, and do an analysis based upon that. If you represent the non-
              titled spouse who put up with the duties as a firefighter, police office,
              corrections officer, etc., why should he/she get nothing based upon an on the
              job injury when pension rights did accrue during the marriage. As a judge
              might say, take it for what it's worth.

VI.     Mediators as Neutral Drafters

              There is a current, and dangerous, issue regarding whether a mediator may
              draft a settlement agreement and be the sole attorney in the matrimonial
              proceedings based on the settlement. While we believe most mediators re
              familiar with this issue, we urge that, if you are not sufficiently up-to-date,
              you contact any of the following for some guidance:

              Adam J. Berner, Esq. 212-721-7555,
              Barry Berkman, Esq. 212-876-9233,
              Eli Uncyk, Esq. 212-575-1292 Ext.117,


              Governor Signs Three Major Marital Bills into Law on August 13th,
              2010: „No-Fault‟ Divorce, Counsel & Expert Fees/Maintenance, and
              Temporary Maintenance

              This new legislation will undoubtedly have a profound effect on the divorce
              process in New York State. Mediators need to understand how the court
              system‘s handling of divorce will change so that they can manage the
              expectations and aspirations of their clients and prepare them for divorce.
              All three new statutes as well as the existing statutory language of the New
              York Domestic Relations Law (DRL) which is modified by the new statutes
              modify is available through links at the end of this section.


              There was an error in the first version of this mailer which was sent out.

In the first version of theMonthly Mailer you were advised that the new
Counsel and Expert Fee/Maintenance legislation from A-7569A didn't go
into effect until December 11, 2010. This was an not correct.

Bill Hoefer's ( diligent attention to the various
descriptions of the new legislation pointed to a separate bill, S8391 which
changed the effective dates from 120 to 60 days after which was separately
presented to the Governor, and which he signed. Between Bill Hoefer and
Tom Tumino, we have a precise fix on the effective dates of the various
provisions, some of which the courts may have discretion (under prior law)
to apply now.

This is not the first error we made, and it won't be the last. So keep reading
everything diligently, and thank you for reading the NYSCDM Monthly

     --Eli Uncyk

Confusion as to Effective Dates-

Several sources on the web and in print have erroneously reported various
effective dates for the three pieces of legislation Governor Paterson signed
into law on August 13th 2010. The various effective dates of the legislation
signed on August 13th circulating on the web appear to stem from three

1-Confusion as to when the bills were actually signed into law by the

We believe some websites, including the NYSBA at and Bloomberg Business Week have erred in reporting a signing
date of Sunday, August 15th for the new legislation, most likely due to an
easily misconstrued press release from the Governor‘s website at .

2-Incomplete readings of the language within the legislation.

Several websites have miscalculated their date counts or misconstrued the
language of the bills, resulting in effective dates one or two days from the
true effective date.

We are relying on the signing date as recorded by the New York State
Senate through its website at and a date count as
determined by in listing
effective dates for these new statutes.

While the effective dates of the August 13th legislation may be inaccurately
listed by many sources, it is widely believed that the new standards put forth
in the Counsel & Expert Fees/Maintenance, and Temporary Maintenance
statues will be applied by courts before the statutes are effective. The
effective dates may apply to the non-waivable obligation to calculate and
enumerate the ―presumptive amounts.‖ Such arduous work would be
similar to the required Child Support Standards Act calculations.

Analysis of the Legislation

1. „No-Fault‟ Divorce- effective for matrimonial actions commenced on
or after October 12th, 2010 (S.3890-A)

Governor Paterson‘s signing of the ‗No-Fault‘ Divorce bill completes a
wave of legislation begun in California in 1969 with then Governor Regan‘s
(California) signing of the nation‘s first no-fault divorce legislation. New
York was the last state in the union to pass no-fault divorce legislation,
following South Dakota‘s 1985 move to allow no-fault divorce.

The No-Fault statute adds a seventh ground for divorce to Section 170 of the
DRL allowing no fault divorce to be granted when either Husband OR Wife
attests under oath that their relationship has broken down ―irretrievably for a
period of at least six months,‖ AND the following issues have been resolved
by a court or by the parties and incorporated into a judgment of divorce:

- distribution of marital property

- the payment or waiver of spousal support

-the payment of child support

- the payment of counsel and experts‘ fees and expenses

- custody and visitation with infant children

These are the same issues which would need to be resolved on any grounds-
based divorce or annulment. The new no-fault legislation DOES NOT
remove the six grounds for divorce (Cruel and Inhuman Treatment,
Abandonment, Imprisonment, Adultery, Judgment of Separation,
Separation Agreement) previously described in the DRL, but it is likely
only the most contentious couples or unique situations that will be better

served by divorce proceedings based on New York‘s traditional six grounds.
Annulment grounds and procedures are untouched by this legislation, and it
is conceivable that for those couples who are eligible for annulment and
who wish to avoid the perceived stigma of divorce, annulment will remain
an option to consider.

While it is clear the new ‗no-fault‘ statute will affect the practice of law,
there may be a limited effect on mediation as well. Couples in mediation
should be motivated by a desire to reach a divorce settlement without the
use of the court system, so a change of the legal framework of divorce
within the court system should have a limited impact on mediations.
However, it is also the case that mediation takes place with the traditional
legal system as a backdrop. No-Fault divorce erodes the power of one
obstinate spouse to unilaterally force a divorce trial and to use the threat of
such a trial as a weapon or negotiating chip. Additionally, a spouse may no
longer use the withholding of his/her consent to a divorce as a leverage point
in negotiations.

2. Counsel & Expert Fees/Maintenance- effective for actions
commenced on or after October 12th , 2010 (A.7965-A)

This legislation has the latest effective date of all of the matrimonial
legislation signed on August 13th, and affects sections 237 and 238 of the
DRL. Paraphrasing the bill‘s official memo:

Current law places an onus upon the party in a matrimonial action seeking
temporary support counsel fees to show why the interests of justice require
it. In the interests of justice it is important for the Legislature to create a
rebuttable presumption that such relief should be granted to the non-monied
spouse. This measure requires that in a matrimonial action an order for
temporary support counsel fees and expenses should be granted at the outset
of the case to ensure adequate representation of the less monied spouse. In
addition, this measure is not intended to preclude a court's current
discretionary power to award counsel fees for services and expenses
incurred before the action begins.

The statutes‘ many modifications of sections 237 and 238 of the DRL in
general streamline the payment of attorney fees, and in many instances
allow fees to be paid directly to the opposing party‘s counsel.

3. Temporary Maintenance- partially effective immediately upon the
Governor‟s signing on August 13th other factors and guidelines of the
Temporary Maintenance Bill effective October 12th, 2010 (A.10984-B)

This legislation sets out guidelines for temporary maintenance and codifies
some definitions and practices that have already become common law. The
Temporary Maintenance statute is the only one of the three new pieces of
DRL legislation to become at least partially effective immediately upon the
Governor‘s signing on August 13th. However as a practical matter, Courts
are likely to apply them, without the requirement of calculating how the
amounts were determined.

The factors effective upon the Governor‘s signing of the bill on August 13th
which the courts should consider in setting temporary maintenance include
most of the factors which are relevant to setting permanent maintenance,
with some changes. Go to and compare the
language in the standards. Note, the effective dates at the legislature‘s web
page may not be correct, see commentary above.

A reading of the full text of all three laws is available for viewing online
with these conveniently shortened tiny urls at: modifying DRL section 170
(Hassell-Thompson - ‗No Fault‘ Divorce – effective for actions commenced
on or after October 13th , 2010) modifying DRL sections 237 and 238
(Sampson - Counsel and Expert Fees, Maintenance – effective for actions
commenced on or after October 13th, 2010) modifying DRL section 236
(Paulin - Temporary Maintenance – some sections regarding factors for
computing temporary maintenance over the income cap effective for actions
commenced on or after August 13th, 2010, other sections effective for
actions commenced on or after October 13th, 2010)

Related reading and commentary can also be found at: and

New Legislation Addressing Health Care Decisions (from S.3164-
B Senator Duane A.7729-D M. of A. Gottfried

An act to amend the public health law (i) to establish procedures for
selecting and empowering a surrogate to make health care decisions for

persons who lack capacity to do so on their own behalf and who have not
otherwise appointed an agent to make such decisions under Article 29-C of
the Public Health Law and (ii) to repeal certain provisions of such law
relating thereto. S.3164-B died in assembly in January, 2010, while
A.7729-D was signed into law March 16th, 2010. This subject will be
covered in future Mailer editions and in CE presentations relating to family

For additional information, go to the New York City Bar Association
publication ―44th Street Notes,: at
and .

The full text of A.7729-D is available at:

Governor Signs Family Health Care Decisions Act

On March 16, Governor Paterson signed into law the Family Health Care
Decisions Act, ending a 17-year battle for legislation which would allow a
surrogate to make medical decisions for a patient who is incapacitated.
Previously, family members or close friends had no legal authority to make
end of life decisions for incapacitated patients unless they had been deemed
a health care proxy or could provide "clear and convincing evidence" of the
patients wishes. The Family Health Care Decisions Act will alleviate this
burden by establishing procedures for selecting and empowering a surrogate
to make health care decisions for a patient. The City Bar has long supported
this legislation, calling it a "patient centered bill" which "put(s) decision-
making power where it belongs — in the hands of the family, not the court".


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