Family Law FAQs

In a divorce, the division of assets and debts is primarily determined by the principle of Equitable Distribution. This means that property is divided in a way the court deems "fair," which does not necessarily mean a 50/50 split.



The process involves two main steps: categorizing property and then applying specific legal factors to decide how it is distributed.
1. Categorizing Property and Debts
Before anything can be divided, the court distinguishes between Marital and Separate assets and liabilities.


Marital Property/Debt: Generally includes anything acquired by either spouse during the marriage, regardless of whose name is on the title or account. This often includes:


Homes, bank accounts, and investments.


Pensions and retirement accounts (valued based on contributions made during the marriage).


Marital Debt: Credit card balances, mortgages, and loans taken out for the family's benefit during the marriage.


Separate Property/Debt: Generally remains the property or responsibility of the individual spouse. This typically includes:


Property owned prior to the marriage.


Inheritances or gifts from third parties.


Compensation for personal injuries.


Separate Debt: Debts incurred before the marriage or debt incurred during the marriage for non-marital purposes (e.g., spending related to an extramarital affair).


Note on "Commingling": Separate property can become marital property if it is mixed with marital assets—for example, depositing an inheritance into a joint bank account used for household expenses.



2. Factors for Equitable Distribution
New York courts consider several statutory factors to determine what is "equitable." These include:


Duration of the Marriage: Longer marriages often lean closer to a 50/50 split.


Income and Earning Capacity: The court looks at each spouse's current income and their future potential. A lower-earning spouse may be awarded a larger share of assets to ensure post-divorce stability.



Health and Age: The physical and mental health of both parties can influence financial needs.


Child Custody: If there are children, the court may award the custodial parent the right to remain in the marital home.


Wasteful Dissipation: If one spouse intentionally wasted or hid marital assets (e.g., gambling or excessive spending in contemplation of divorce), the court may reduce their share.


3. Handling Debts
Debts are divided similarly to assets. The court considers:


Who benefited? If a debt was used for family needs (clothing for children, home repairs), it is usually shared.


Ability to pay: The court may assign more debt to the spouse with a higher income.
Joint vs. Individual: While the court can order one spouse to pay a joint debt, it is important to know that creditors are not bound by divorce decrees. If your name remains on a joint account, a creditor can still pursue you if your ex-spouse fails to pay.

In my practice, I view conflict resolution not as a choice between "being nice" or "being tough," but as a strategic exercise in protecting my clients' long-term stability—especially when complex international assets or professional reputations are on the line.

My approach is built on three core pillars:

1. The Strategy of Negotiation First
I am a firm believer in strategic, high-stakes negotiation. My primary goal is to minimize the emotional and financial toll of a divorce. Most of my clients are looking for a way to untangle their lives—and often their global assets—with precision and privacy.

Alternative Dispute Resolution (ADR): We often utilize Mediation and the Collaborative Process. These methods allow us to craft creative solutions—such as tax-efficient ways to divide a 401(k) or handling the valuation of a professional license—that a judge might not have the flexibility to implement in a rigid courtroom setting.
Stability over Chaos: Negotiation allows us to control the outcome rather than leaving it in the hands of a third party.

2. Preparation for Litigation
While I prioritize settlements, my philosophy is: "Prepare for trial, and you are more likely to settle." I do not approach negotiation from a place of weakness. Every case is built as if it might go to an inquest or a full trial. This thorough preparation—gathering forensic valuations, preparing discovery, and identifying legal leverage—often forces the opposing side to be more reasonable at the bargaining table.

3. When Trial is Necessary
There are circumstances where trial is the only path. If an opposing party is hiding assets, acting in bad faith, or if there is a fundamental disagreement over the best interests of a child, I provide tenacious advocacy. With decades of experience, I am fully prepared to litigate complex financial or matrimonial issues to ensure my clients receive their equitable share.

In short, I prefer to negotiate because it provides the most stability for families and protects wealth. However, I never shy away from the courtroom when a client’s rights or future are being threatened.

While both legal separation and divorce allow spouses to live apart and establish clear financial and parenting boundaries, there is one fundamental difference: a divorce legally ends your marriage, while a legal separation keeps your marriage legally intact.

For many couples, deciding whether to legally separate or proceed directly to a divorce is one of the most difficult choices to make. Here is a breakdown of the key differences to help you understand your options:

1. Legal Status and Remarriage
Divorce: The marriage is completely dissolved. Both parties are returned to the legal status of single individuals and are free to remarry.

Legal Separation: You remain legally married. You are living apart under a formal, legally binding Separation Agreement, but you cannot remarry.


2. Health Insurance and Benefits
Divorce: Once a divorce judgment is finalized, a non-employee spouse is typically removed from the employee spouse’s employer-sponsored health insurance plan (though they may be eligible for COBRA at their own expense).

Legal Separation: Because the marriage is still legally intact, many health insurance plans allow a dependent spouse to remain on the primary policy. This is often a major driving factor for couples choosing separation over divorce, especially if one spouse has significant medical needs. (Note: You must always verify this with the specific insurance provider).

3. Financial and Parental Obligations
Both Options: Whether you separate or divorce, you must resolve the same core issues. A formal Separation Agreement will dictate child custody, visitation, child support, spousal maintenance (alimony), and the division of marital assets and debts.

4. The "Trial Run" vs. The Final Chapter
Divorce: A definitive end to the marital relationship.

Legal Separation: Offers breathing room. It allows couples to separate their finances and living arrangements while keeping the door open for reconciliation. Furthermore, under New York law, if you and your spouse live apart under a valid Separation Agreement for one year or more, that agreement can be used as the grounds for a "conversion divorce" later on.

Why You Need an Attorney for Both
A true legal separation is not simply moving into different bedrooms or renting a separate apartment. Without a formally drafted, signed, and notarized Separation Agreement, you are still fully exposed to your spouse's financial liabilities, and your rights are not protected.

Whether you are looking to formally separate to protect your assets, or you are ready to file for divorce, having an experienced litigator in your corner is essential to ensure your rights and your future are secured.

Ready to discuss your specific situation?
The Law Offices of Norka M. Schell, LLC is here to help you navigate this transition with clarity and confidence.

One of the most common fears when filing for a divorce is that an uncooperative spouse will simply ignore the paperwork, hoping the process will just go away. The good news is that under New York law, a spouse cannot trap you in a marriage simply by refusing to participate.

If your spouse is served with divorce papers and refuses to respond, here is exactly what happens next:
1. The Clock Starts Ticking
Once your spouse is formally served with the Summons with Notice or Summons and Verified Complaint, they are on a strict legal deadline. In New York, your spouse has 20 days to respond if they were served within the state, or 30 days if they were served outside of New York.

2. You Can Request a "Default Judgment"
If that deadline passes and your spouse has not filed an Answer or a Notice of Appearance with the court, they are considered to be in "default." You do not have to wait for them to come around; instead, you can ask the court to proceed without their input by filing for a Default Judgment.

3. The Court May Grant Your Requests
When a spouse defaults, they effectively forfeit their right to argue their side or negotiate the terms of the split. The judge will review your proposed terms. As long as your requests regarding the division of marital property, child custody, child support, and spousal maintenance are lawful, equitable, and properly documented, the court will typically grant your petition exactly as you filed it.
4. The Crucial Requirement: Proper Service
The biggest hurdle in a default divorce is proving to the court that your spouse actually received the papers. Judges will not grant a default judgment unless you have an ironclad "Affidavit of Service" proving that your spouse was legally and properly served. If your spouse is intentionally evading the process server, the court may allow alternative methods of service, such as publication in a local newspaper.

Why You Shouldn't Handle a Default Divorce Alone
While a default divorce might sound like the easiest path, the paperwork required by the New York Supreme Court is extensive, highly technical, and completely unforgiving.

A single mistake in your financial disclosures or proposed judgment can lead to the court rejecting your packet, causing months of frustrating delays. Furthermore, a spouse can later attempt to file a motion to "vacate" (overturn) the default judgment if they can successfully claim they were improperly served.

Over the course of 35 years of practicing law, it becomes clear that uncooperative spouses often use silence as a delay tactic. Having an experienced litigator ensures your filings are bulletproof, your rights are protected, and your divorce moves forward—with or without their signature.

Don't let an uncooperative spouse hold your future hostage.

If you are ready to file, or if your spouse is actively ignoring your divorce action, the Law Offices of Norka M. Schell, LLC is ready to take decisive action on your behalf.

Contact us today to discuss your next steps.
📍 11 Broadway, Suite 615, New York, NY 10004
📞 212-258-0713
✉️ norka@lawschell.com

One of the most immediate concerns when filing for divorce is survival during the "in-between." A contested divorce in New York can take months or even years to resolve. During that time, the mortgage still needs to be paid, the children need stability, and both spouses need to be able to afford legal representation.

To prevent financial ruin or parental alienation during the divorce process, the New York Supreme Court issues temporary orders, legally known as pendente lite (pending the litigation) orders.

Here is how these crucial temporary orders are handled:

1. Filing a Motion for Temporary Relief Temporary orders are not automatic. To obtain one, your attorney must file a formal motion with the court—often an Order to Show Cause or a Notice of Motion. This request must be supported by sworn affidavits, evidence, and a comprehensive Statement of Net Worth detailing your exact financial situation.

2. Types of Temporary Orders the Court Can Grant A judge can issue temporary rulings on almost any pressing issue to maintain the "status quo" while the divorce is pending. The most common include:

*Temporary Child Custody & Visitation: Establishing a set schedule so that both parents have guaranteed, enforceable access to the children, minimizing disruption to their daily lives.

*Temporary Spousal Maintenance & Child Support: Ensuring the "monied" spouse continues to contribute to the household bills, rent, groceries, and child-rearing expenses so the other spouse is not starved out financially.

*Exclusive Use and Occupancy: In situations of extreme conflict or domestic violence, a judge can order one spouse to temporarily move out of the marital residence.

*Interim Counsel Fees: To "level the playing field," a judge can order the higher-earning spouse to pay the legal fees of the lower-earning spouse, ensuring both parties have equal access to justice.

3. The Importance of the Statement of Net Worth When it comes to temporary financial orders, the judge relies heavily on the Statement of Net Worth. If this document is inaccurate, incomplete, or poorly drafted, you could end up paying far more than you can afford or receiving far less than you need to survive the coming months.

Why You Need an Aggressive Litigator from Day One

Temporary orders often set the tone for the entire divorce. While they are technically only meant to last until the final judgment, judges frequently look to these temporary arrangements as a baseline when drafting the final settlement. If you agree to an unfavorable temporary custody schedule or support amount, it can be incredibly difficult to undo that precedent later.

Securing the right temporary orders requires precise evidence and persuasive courtroom advocacy. After 35 years of legal experience, I can tell you that arguing these critical motions before a judge is where cases are truly shaped. Being in a courtroom, fiercely protecting a client's immediate stability and financial survival, remains one of the most vital and rewarding aspects of matrimonial law.

Do not let the divorce process drain your resources or jeopardize your relationship with your children. If you are facing a divorce and need immediate legal and financial protection, the Law Offices of Norka M. Schell, LLC is ready to fight for you.

Contact us today to secure your temporary orders. 📍 11 Broadway, Suite 615, New York, NY 10004 📞 212-258-0713 ✉️ norka@lawschell.com

When a family goes through a divorce, separation, or a tragic loss, grandparents, aunts, uncles, and other close relatives often worry about losing their bond with the children involved. While New York law recognizes the importance of extended family, it also fiercely protects the fundamental rights of biological or adoptive parents to raise their children as they see fit.

Because of this, the legal hurdles for a non-parent seeking custody or visitation are incredibly high. Here is how the New York Family Court and Supreme Court handle these sensitive cases:

1. Grandparent Visitation Rights Under New York Domestic Relations Law § 72, grandparents have a specific statutory right to petition the court for visitation, but it is not an automatic guarantee. Obtaining a visitation order is a strict, two-step process:

Step One: Establishing "Standing." Grandparents must first prove they have the legal right (standing) to even ask for visitation. This is automatically granted if one or both of the child's parents are deceased. If both parents are alive, the grandparents must prove that "conditions exist where equity would see fit to intervene." This usually requires showing a strong, existing relationship with the child that the parent is actively thwarting, or showing that the grandparents have tried to establish a relationship but the parent unreasonably prevented it.

Step Two: The "Best Interests" Test. If standing is established, the court will hold a hearing to determine if ordering visitation is ultimately in the best interests of the child, weighing the grandparents' relationship against the parents' objections.

Relatives Seeking Full Custody
The standard for a grandparent, sibling, or other relative to obtain full custody of a child over the objection of a biological parent is exceptionally difficult. A court will not grant custody to a relative simply because they might provide a "better" home or have more financial resources.

To intervene, the relative must first prove "extraordinary circumstances." This legal standard typically requires concrete proof of:

*Severe abuse or persistent neglect
*Abandonment by the parents
*Complete unfitness of the parents (often due to severe, untreated substance abuse or mental illness).
*An extended disruption of custody (where the parent voluntarily left the child in the care of the non-parent for a prolonged period).

Only after extraordinary circumstances are proven will the court move on to decide if granting custody to the relative is in the child’s best interests.

Why You Need a Fierce Courtroom Advocate

Cases involving non-parent custody or visitation are highly emotional and legally complex. Because parents have a constitutional right to the care and custody of their children, judges require overwhelming evidence before they will step in and grant rights to a relative.

Arguing these heavy evidentiary burdens requires deep knowledge of New York Family Court precedent and aggressive, strategic litigation. Standing in a courtroom, examining witnesses, and passionately arguing for a child's safety and well-being remains the most vital and rewarding part of legal practice. With over 35 years of experience navigating the complexities of family law, it takes a seasoned litigator to properly present your case and fight for your family's future.

Whether you are a grandparent fighting to see your grandchild, or a parent defending your fundamental rights against an overstepping relative, we are here to help.

Contact the Law Offices of Norka M. Schell, LLC today to discuss your legal options. 📍 11 Broadway, Suite 615, New York, NY 10004 📞 212-258-0713 ✉️ norka@lawschell.com

Contact us today to schedule a consultation. 📍 11 Broadway, Suite 615, New York, NY 10004 📞 212-258-0713 ✉️ norka@lawschell.com