Filing the Divorce Action

{3:18 minutes to read} In a previous article, do we file for divorce before starting mediation, I talked about whether parties needed to file for divorce before starting the mediation process. Eli Uncyk, Esq., an experienced family law mediator and attorney, read my article and suggested I write about what happens if the parties do file for divorce before starting the mediation process, and how this might affect that process.

I asked him if he would answer these questions, since he is an attorney and a prominent one in our mediation community. He graciously agreed, and what follows are his thoughts on the subject.

How does filing a divorce action help the parties reach their goals?

When a “Request for Judicial Intervention” is filed in a divorce case, there is typically a conference with a judge (or law assistant) who will likely be happy to know that mediation is going on but will set follow-up court conferences to ensure that there is progress.

The court conferences are opportunities for the lawyers to discuss issues which parties find difficult to address or resolve. Court rules require that the parties appear at all court conferences, and most judges speak with the parties at least once. The judge (or law secretary) may give some “guidance” or insights which may help the parties move forward.

This approach is not for everyone, especially a party who needs more time to reach decisions or to absorb the entire situation. It also gets into a form of mediation similar to “evaluative,” which some parties do not want.

Not all matters benefit from the time pressures of a court case, but sometimes it may be the only resort one party has to push for a faster-track mediation. While it may be aggressive to start a divorce action during a mediation, the mediation can still proceed. Certainly, this is not the ideal atmosphere for mediation, but it may be better than mediating indefinitely.

Does filing have any legal consequences on the entire process?

Yes, filing a divorce action has legal consequences. These include fixing the date for the accumulation of marital property and a potentially earlier date for valuing marital assets. Assets accumulated after the filing date would no longer be considered marital property and would not be subject to equitable distribution, which may benefit one party. It also allows for retroactive relief from the Court, if there is no mediated settlement, so that a court can direct child support or maintenance starting from the filing date, if a demand for child support and maintenance is included with the filing.

However, the legal consequences can be addressed without filing a divorce case by what I have called a “Freeze Agreement.” This allows the parties to pick a date themselves after which assets are no longer considered marital and which addresses those legal issues which would be automatically addressed by filing. The Freeze Agreement may be custom-drafted to be more precise than the automatic and general results of filing. This would require the parties’ lawyers to take a more active role in the mediation.

If you or anyone you know needs more information regarding this matter, I would be happy to forward your query to Attorney Uncyk.

I can be reached by email at js@safianmediation.com or by phone at (917) 881-5206.

Eli Uncyk
Kamerman, Uncyk, Soniker & Klein P.C
Email: euncyk@kusklaw.com

Eli Uncyk has advised clients, negotiated, mediated and litigated issues in such varied areas as family and matrimonial law, tax law, business and corporate transactions, trust, estates and probate matters. In addition to his mediation and litigation practice, Eli has been selected by federal and state courts to mediate complex commercial disputes, as well as family, custody and divorce disputes.

Eli has extensively written, lectured and conducted trainings and presentations on various subjects for many organizations, including the Continuing Education programs for the New York City Bar Association, the Association for Conflict Resolution, the New York State Divorce Mediation Council and the Family and Divorce Mediation Council of Greater New York.

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Jennifer Safian

jennifer safian. divorce and family mediator
divorce and family mediation
upper east side of manhattan (nyc)
new york, ny
(917) 881 5206
jpsafian@gmail.com