dj26xxx Posted August 2, 2019 Share Posted August 2, 2019 Hello, I was legally separated from my wife in 2015 in NY. We spent 9 months negotiating a separation agreement and we were both represented by counsel. Last December (3 years after the separation) I started the process of converting the separation to a divorce. Here's a rundown of what has happened so far: *My wife filed an Answer stating that I was non-compliant with our agreement, but did not give any details as to how (I am 100% in compliance) *We had a Preliminary Conference where it was determined that my attorney would file a motion for Summary Judgement *We filed the Summary Judgement motion asking for a divorce based on the separation agreement *My wife's attorney filed a response asking to amend her Answer to include a claim that the agreement is unconscionable *We are set to argue the motion in court in a couple of weeks I can go into more details on the specifics, but I'll start with these questions: *If we assume the agreement is fair and I've been compliant with it, should I win the motion? I'm concerned that there is a technicality where simply by raising the issue of unconscionability the judge will say that's a matter of fact that needs to be disputed and therefore she can't grant me a summary judgement. *What are the chances of receiving a ruling the day of the motion hearing? Again, we can assume that it's really a very simple case where the agreement is fair and I have been fully compliant. I'm really nervous about whether or not I'll win this motion, although I really do think I should. I'm even more nervous that the timeline for finding out if I win the motion will be exceptionally long. I have spent a ton of time and money on a process that should have been really simple. We spent 9 months negotiating the agreement 3.5 years ago. There really is no reason to have to start all over again. Any advice/support will be most appreciated! Thanks in advance. Link to post Share on other sites
PegNosePete Posted August 2, 2019 Share Posted August 2, 2019 You should be asking your lawyer, not random strangers on the internet! You're paying for professional representation by someone who knows all the ins and outs of your agreement, and the law in your jurisdiction. Why would you ask important questions to random unqualified amateurs who don't know anything about you or your case? 2 Link to post Share on other sites
Author dj26xxx Posted August 2, 2019 Author Share Posted August 2, 2019 Obviously I've spoken to my attorney about this. That doesn't mean it wouldn't be nice to hear from other people who have gone through similar situations. Link to post Share on other sites
amaysngrace Posted August 2, 2019 Share Posted August 2, 2019 If it’s so unconscionable then why was she okay with it for three and a half years? Link to post Share on other sites
Author dj26xxx Posted August 2, 2019 Author Share Posted August 2, 2019 If it’s so unconscionable then why was she okay with it for three and a half years? Right. This is one of the major points of our motion. As I understand it, the fact that she didn't contest it until recently when I started the process of converting it to a divorce, *should* mean that she has ratified the agreement and it should be enforced. I'm mostly concerned with two things - 1) is there some reason why even though the agreement is fine, I would lose the summary judgement motion - i.e. is there something about this defense that makes it a question of "material issue of fact" and not a "matter of law" that can be decided by summary judgement and 2) how long will it take to get a ruling. I'm just looking for any support from people who have been or seen similar situations (specifically summary judgement motions in a conversion divorce case) that can provide some insight as to what to expect. Link to post Share on other sites
amaysngrace Posted August 2, 2019 Share Posted August 2, 2019 I honestly don’t have any experience with that. I wish I could help but mine went straight to a divorce settlement agreement, we didn’t do a separation one. What is her lawyer saying that’s so unconscionable? He and she agreed to the terms in the first place. Did you not uphold your end or change anything from the original agreement? Link to post Share on other sites
Author dj26xxx Posted August 2, 2019 Author Share Posted August 2, 2019 My ex has a different lawyer this time around. They are claiming the fact that I get this verification twice a year from my ex's doctor is unconscionable. They are claiming that I control whether or not my ex maintains 50% custody, but that is very clearly not true. It's up to her doctor if overnights continue for my ex and I just get confirmation from the doctor twice a year that he feels it's still ok. My opinion never affects custody. I have fully complied with the agreement. They are claiming that I actually can't be compliant, because there are things that I will need to do in the future per the agreement and there is no way to know if I will actually do those things in the future (yes, this argument is as dumb as it sounds). Link to post Share on other sites
amaysngrace Posted August 2, 2019 Share Posted August 2, 2019 Well if you’ve honored your agreement so far I’m not sure why they’d doubt your commitment to honor a future one. That does sound dumb. Can you have the doctor’s recommendation reviewed by the court periodically to maintain her privacy? Your child/ren’s safety and well-being should be first and foremost before any other matter imo. Link to post Share on other sites
Author dj26xxx Posted August 2, 2019 Author Share Posted August 2, 2019 (edited) I appreciate your thoughts and questions, but there's honestly no privacy issue here. I don't see any private information. All I get is an "ok" from the doctor. I do not know her diagnosis, her treatment plan, etc. It was specifically written in a way to protect her privacy. Regardless, it's really not the point, since I've offered to remove the requirement altogether. The problem is that settling will take a lot of back and forth, because in trying to settle, she has asked for nearly a wholesale renegotiation of the agreement. We very well may have to go down that path, if I lose the motion or if the judge take a while to render her decision and we work out a settlement in the meantime. The other factor is that if I win the motion and the agreement stands as-is, I *should* be awarded lawyer fees, because our agreement also states that if either or us challenges the agreement and loses, the one who brought the challenge has to pay the other's legal fees. Edited August 2, 2019 by dj26xxx Link to post Share on other sites
Mr. Lucky Posted August 4, 2019 Share Posted August 4, 2019 That doesn't mean it wouldn't be nice to hear from other people who have gone through similar situations. I’d guess the fellow posters who’ve navigated a divorce with custody tied to a spouse’s ongoing medical condition are few and far between. Also, without knowing “her side”, no way of knowing what she’s alleging or contending. I’d stick to counsel’s advice... Mr. Lucky Link to post Share on other sites
preraph Posted August 4, 2019 Share Posted August 4, 2019 Ask your attorney what usually happens in these circumstances. Link to post Share on other sites
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