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Under The Law: Family law litigation needs own specialists

By Michael Dikman

How can I best locate a competent and effective divorce (family law) lawyer?There are several ways to locate a lawyer to represent you when you have a family law problem. Knowing someone who works in the court system, like a court officer or law secretary, having a lawyer in the family or as a friend, even your general attorney, are all good sources to find a good lawyer who knows the field intimately. You will be wise to use only someone who regularly handles your type of case. A satisfied customer, someone who went through the type of litigation you expect and had a good experience with their lawyer, is also a reasonably reliable source of information.If the above aren't feasible, you can get a referral from the American Academy of Matrimonial Lawyers or from the Queens County Bar Association at 718-291-4500. You can also conduct your own research for a family lawyer. A good source is Martindale & Hubble, which lists thousands of lawyers world wide and has a rating system and write-ups as to the attorney's qualifications.I would warn against selecting an attorney on the basis of his or her own advertising. A lawyer who advertises anywhere, from the yellow pages to the Internet, may be between top notch and not. You would never know.Can I get a divorce without my spouse's consent?This question brings up a sore spot for most family lawyers. New York is probably the only state without a “no fault” ground for divorce, such as irreconcilable differences, incompatibility or a stated period of physical separation. The only ground that is in the nature of “no fault” is that if two people have been legally separated for a year or more (with an agreement signed with very specific formalities or court judgment), a divorce can be obtained. Otherwise, we are a “fault state.” Therefore, you do not need your spouse's consent, if you can establish statutory grounds, which include adultery, cruel and inhuman treatment, abandonment or imprisonment for three years or more.If I start a divorce action, can I somehow get my spouse to leave the marital residence while the process is going on?Although living together during divorce litigation can be extremely uncomfortable and filled with tension, you cannot require your spouse to leave his or her accustomed residence, absent consent, unless you can establish one of two prerequisites. The first is that such exclusion is necessary because of a real danger of harm to person or property. A recent history of physical violence or serious threats is usually required. The second basis is to prove that your spouse has established an alternate residence.So unless you can meet one of those requirements, you are best advised to make the best of the situation and not have your lawyer make a formal request, called a motion, which take time, cost money and require other processes which take more time and money.What should I do to avoid a real risk of physical assault?If you are sincerely concerned about the likelihood of harm to person or property based on recent violence or serious threats, the fastest way to obtain relief is to go to Family Court or Criminal Court and tell the staff you need an order of protection. Papers will be drawn for you by the clerk based upon what you allege to be the underlying facts, and you should be able to see a judge the same day.If the court believes there is an impending risk, a temporary order of protection can be issued the same day. Once issued, if the order is violated, a call to the police will most often result in an immediate arrest.When the temporary order is issued a date will be fixed for you to come back to court. Your spouse is to be served with a copy of your allegations (petition) and a summons to attend court when scheduled. Then your spouse will be entitled to present his or her position or answer to your claims and a final order of protection will be considered by the court (usually to last one year).The Supreme Court (the only place where a divorce action can be commenced) has all of the powers of the Family Court, and more. So, if you are about to, or have already started a divorce action, your lawyer can seek an Order of Protection in Supreme Court, rather than become involved in litigation in two different courts.Michael Dikman is chairman of the Queens County Bar Association's Family Law Committee. This is part of a series of articles arranged by the QCBA as a public service to assist our readers.

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