So You’re Getting Divorced

This is not permitted in New York and is generally a bad idea. Most good family law attorneys will not represent both spouses, as it is always a conflict of interest and unethical conduct. An attorney who represents “both sides” prevents you from obtaining your own, independent legal advice. Even worse, the agreement becomes vulnerable to an attack to set it aside.

Should I hire a private detective?

It depends on your goals. In a “fault” state like New York, it might be helpful to have a private investigator (PI) find out about your spouse’s behaviors that may impact the property settlement. Otherwise, a PI might help you trace money that you suspect your spouse of hiding. However, always keep in mind the potential risks of starting a fight and possibly harming your children in the process. In addition, most good divorce lawyers or a forensic accountant can help you track assets and obtain documentation if your finances are not too complicated.

How long will the divorce take?

It may be as little as 120 days or as long as several years. Plus, your case may be delayed if you live in a jurisdiction that has crowded court dockets such as Nassau County or New York City. Finally, if you and your spouse cannot reach an agreement and your case becomes “contested,” it will take longer to complete.

Should I move out of the house?

The answer depends on your individual circumstances. There is no one right answer that fits every case. However, in making that decision keep in mind the following: the person who moves out does not forfeit all claims to any marital equity in the property or entitlement to a division of the furnishings. However, it may be wise to list or photograph the contents before you leave.

Once a party moves out, a lawyer may have difficulty getting an order for him/her to move back later. If there are any disputes relating to children and one parent moves out without them before reaching an agreement regarding contact, there many be a time lag before arrangement are in place for that parent to see the children.

If you believe your children should reside primarily with you, it is generally not a good idea to move out unless you have adequate and safe arrangements for your children to go with you.

How do I prove that my spouse is hiding cash?

Both parties will be required to disclose financial information in the early stage of the divorce. This documentation may include bank records, check stubs, and retirement statements. In addition, we have other “discovery” tools, which, for example, require further documentation or giving a deposition. Additionally, we may discuss with you the possibilities of retaining other experts, such as private investigators or forensic accountants to help with the investigation.

Can I continue to use my credit cards?

Typically, it is wise to act in a conservative, financially prudent manner. This means that you should avoid extravagant purchases or consult your attorney first. If you use credit cards in your normal course of business and for your everyday needs, you generally can continue to use them. It is wise, however, to confirm with your credit card companies that you have credit in your name and that your spouse hasn’t canceled the credit cards.

Can I change the locks on the house?

No, unless you have a court order granting you exclusive use and possession of the house. If you have concerns about your safety in the meantime, consider obtaining a restraining order, which typically would include granting you temporary possession of the house.

Can I make my spouse sign a joint tax return?

Typically, no. During your divorce, get the advice of a good CPA as to what makes the most sense financially. If you are still married as of December 31 of the tax year in question, you can file a “married but separate” tax return. Also, we sometimes can negotiate indemnity agreements, so that you can sign joint returns.

Will my spouse be required to return to work?

This will depend on your circumstances and finances. Without question, after your separation, you and your family may experience tremendous financial strains. Many people choose to seek employment or return to work to make ends meet, and others are required to do so as part of an alimony agreement. However, talk with your attorney and a good financial advisor to help plan your options.

What about my prenup?

You should talk with your attorney about the impact of a prenuptial agreement on your divorce. Typically, it will be enforceable if it meets certain strict criteria, including whether it was entered into voluntarily and with full disclosure of all finances. A judge may scrutinize whether any provisions for alimony are fair at the time of your divorce.

Good Counsel

How to get what you need from your lawyer

How can I help with my case?

Check with your lawyer before doing anything you think might be helpful in the case to ensure that your actions will be useful and done in a way that is really productive. Ask what you can do throughout the case to keep fees low and speed the case along. As a general rule, collection, organizing, and indexing recent financial records will be helpful. Keeping a log of your expenses and expenditures with back-up receipts or statements also will assist your lawyer. Likewise, your lawyer may want you to maintain a custody planning calendar or log reflecting when each parent is responsible for the children or attends their activities or events. Additionally, a diary of events important to the divorce is sometimes helpful.

Can I change lawyers?

Yes, you have the right to work with the lawyer of your choice. However, if your case is complex, keep in mind that you may incur additional expenses due to the time needed for your new lawyer to get up to speed on your case. In addition, expect to address any issue of unpaid fees with your first lawyer before he/she turns over the file to your new lawyer.

My spouse had a great lawyer last time we separated, then we reconciled. Can I hire him/her this time?

No. Ethical considerations prohibit a lawyer’s switching sides in this fashion. In fact, a lawyer who met with your spouse about the divorce, but was not retained, is probably also precluded from representing you.

I have some cash I don’t want to disclose or share with my spouse. Can my lawyer help me with that?

No. We have an ethical obligation to be honest and truthful about issues that are relevant to the outcome of the case. We also have a duty to advise you to do the same. In fact, we may be obligated to withdraw from the case if we know you are concealing assets or otherwise being dishonest.

Putting a Price Tag on Your Divorce Case

Why do I have to pay, I did not want the divorce?

Statutes and case law govern the principles to be considered in determining how legal fees and costs are paid. However, no recognized rule places the financial cost on the party who initiated the action.

Does the loser have to pay the winner’s fees?

No. That is not a principle commonly applied in American law. Also keep in mind that in a divorce action, identifying a “winner” or “loser” is difficult. Often, some aspects of the decision will favor one party, and other aspects the other. However, the Court does have the right to order one party to pay part or all of the other party's fees.

Sometimes, in an enforcement proceeding, a party found to have violated an existing order of the court may be ordered to pay the fees of the party seeking enforcement.

What can I do to keep legal costs down?

Collect any records or other documents your lawyer requests promptly. If your lawyer must remind you several times or must get records from another source, that will involve more effort. Prepare for telephone calls or office conferences by making a list of the issues or questions you want to cover with your lawyer. A single organized call to address three questions generally will be more efficient and less costly than three separate calls.

It also is a good idea to use friends, relatives, or your therapist, and not your lawyer or his or her paralegal, when you just need to vent your feelings.

How much will my case cost?

Unfortunately we may be unable to answer that question at the beginning of your case, because the total fees will likely depend on the difficulty of the issues and the time involved. As your case progresses, we may be able to give you estimates as to the cost for particular aspects of the case. Discuss these costs with your lawyer in light of potential benefits to your case. An exhaustive “leave no stone unturned” approach can be costly and may be unwarranted.

Who will pay my legal fees?

The same statutes and judicial decisions that govern other financial aspects of a divorce case determine whether you will have to pay your own legal fees or whether payment or reimbursement may come from other sources, such as the proceeds of a marital asset or contributions from your spouse.

During Litigation

When can I date?

- In a few states, anything you do up to the date of divorce can be considered by the court. Before dating, ask your lawyer if you live in such a state. In other states, behavior undertaken after separation or filing for divorce cannot be considered by the court. In such states, it is a good idea to be discreet so as not to negatively affect your children.

Can I have a "significant other" sleep over?

- Overnight guests are not a good idea if you and your spouse have not separated. Even if you are living apart, having overnight guests while your children are with you may be used against you in your divorce case.

My spouse has been abusive, does that matter in the divorce?

- Abuse my be relevant in several respects. First, keep in mind that even in New York "fault" claims may not be relevant to financial issues. It is relevant, however, to being able to obtain the divorce in the first instance.

In any event, safety issues will be an important part of your case. Let your lawyer know about any abuse, so that he/she can keep you safe in meetings, conferences, and court appearances throughout the case.

Can my therapy sessions, counseling, or antidepressants be used against me?

- That issue may come up in the course of your divorce. However, do not be deterred from getting the help or treatment you need. Keep in mind that most people going through a divorce could benefit from some professional support or counseling.

I know I am the better parent, how do I prove that to the court?

- Work with the lawyers to develop calendars, logs, photocopies, e-mails, or other information that reflects on the following points:

- Degree to which each parent supports or undermines other parent's relationship with the child.

- Which party has been the primary caretaker?

- Quality of each parent's relationship with the child (Is the child more likely to turn to one parent for help in problem situation?)

- Each parent's available time for the child, demands and flexibility of work schedules, travel obligations, recent changes in the amount of time wither parent spends with the child.

- Any changes likely to be necessary after the divorce (i.e. a nonworking parent may take a job).

- The nature quality, and reliability of current and past child-care arrangements.

- Each parent's plans for the child, regarding home, education, religion, and general development.

- Physical health of each parent.

- Mental health of each parent.

- Child's health, including any recent changes.

- Child's academic performance and behavior at school, including any recent changes.

- Particular educational needs of the child.

- How each parent attends to any special interests or aptitudes of the child.

Do the wishes of a child have any effect on custody decisions?

- New York allows judges to consider the expressed wishes of a child deemed mature enough to communicate a preference on custody or visitation arrangements. Judges may consider the child's stated preference. However, keep in mind that no child is required to state a preference and those who do will not have the final say. The judge will decide how much weight should be placed on the child's wishes, depending on the age, maturity, and quality of the child's reasoning. The overriding concern will always be what arrangement is in the child's best interest.

Should I ask my child where he or she wants to live after the divorce?

- No. Posing such a question effectively asks a child to choose between parents, and no one should put the child in that position. Children who feel comfortable doing so may volunteer opinions on the issue. However, keep in mind that most children are masters at telling a parent what the child thinks the parent wants to hear. As a result, the statements you hear from the child may be different from those made to the other parent.

How do I show that I have always been the primary caretaker of our child?

- Among other things, the court will look to who:

- gets up with the child in the morning

- helps the child get dressed

- fixes breakfast

- packs school lunches

- fixes lunches and dinners

- helps the child with homework

- takes care of the child during the day

- transports the child to and from day care, school, and extracurricular activities

- arranges birthday parties, Halloween costumes, etc

- arranges day care or babysitters

- reviews school work, signs report cards, etc

- teaches the child about academic subjects, sports, religion, and/or life in general

- reads stories and plays games with the child

- oversees hygiene, bathing, hair combing, tooth brushing

- toilet trains the child

- puts the child to bed

- purchases the child's clothes

- takes the child for haircuts

- attends parent-teacher conferences

- participates in school activities

- arranges for extra-curricular activities, pay dates, social outings

- participates in extra-curricular activities , such as coaching a team, being a Scout master

- stays home when the child is sick

- takes the child to the doctor and dentist

- takes the child to religious activities

- disciplines the child

- looks after the child's safety at home and in the neighborhood

- supervises the child's household chores

- supervises the child's television watching

What are some common visitation arrangements?

- Visitation, sometimes called parenting time, can take a variety of form or schedules. Some common arrangements include the following:

- alternate weekend visitation with the noncustodial parent, sometime Friday and/or Monday as well as Saturday and Sunday. Add Monday federal holidays (Labor Day, Memorial Day, President's Day, etc.) to weekend visitation.

- Midweek visitation, either for dinner or sometimes overnight.

- Sharing longer blocks of time with the child during school vacations, such as winter break, spring break, and summers.

- Dividing and/or alternating major holidays, such as New Year's Eve, July 4^th, Rosh Hashanah, Yom Kippur, Thanksgiving, and Christmas.

- Mother's Day with mother, Father's Day with father, and dividing or alternating the child's birthday.

- Regular telephone contact (and/or e-mail contact) by the parent who does not have actual physical custody of the child.

- Exchange of a few days of visitation here and there as mutually agreed, without the need for a change or modification of the court order.

Child Support

Who decides how much child support I pay?

- In response to federal legislation, New York has adopted official child support guidelines. These guidelines establish the method for calculating child support in each case and whether more than the guideline amount is warranted. Lawyers, judges, and employees of the state child support enforcement office will use these guidelines to calculate child support. Guidelines are designed to ensure consistency and predictability in child support amounts.

How will I know if the guidelines apply to my case?

- If you are a parent, both you and the other parent are required to support your children. Child support will be an issue in your case, and your lawyer will discuss your state's guidelines with you. Your lawyer also will discuss what other factors the judge will consider in deciding whether a deviation from the guidelines is appropriate. The general guidelines in New York are 17% of gross income for one child, 25% for two, 29% for three, 31% for four children and for five or more children, no less than 35%

If I give up my visitation rights, can I stop paying support?

- Not generally. This, however, depends on the circumstances. Usually, states do not give parents the automatic right to "abandon" children in an effort to avoid a legal responsibility to support them. Under some circumstances, however, children of "sufficient age" are deemed to have abandoned the parent and can be declared "emancipated" for child support purposes. Each state has its own rules and authority for terminating a parent's economic obligations to support children.

The kids don't want to see me. Can I stop paying?

- Generally, no. Children are entitled to be supported by both parents regardless of the closeness of the relationship. However, a child of sufficient age and maturity can be deemed emancipated by the court, thereby terminating child support. Such cases are rare. In many such instances, the court may suspect alienation, which means that a parent or some other person is interfering with the children's relationship with the estranged parent. Court are loathe to blame children for such behavior. Some courts will respond to such situations by changing the custodial arrangement to stop the cycle of alienation.

The kids are with me for the summer. Can I stop paying for those months?

- Probably not. This will depend on whether you and your ex have an agreement on the topic. For example, some written agreements specifically address when support payments will be made.

The general rule is that child support does not automatically stop when the child is away from the primary custodial parent because the parent receiving child support must continue to pay the mortgage, taxes, insurance, and maintenance of the family home even in the temporary absence of the child. A more permanent absence is a different case entirely. Changes in custodial arrangements may result in changes to child support.

Can I make the other parent pay for college?

- New York courts have the power to order payment of college as part of the child support obligation, but only until the age of 21. In high-income cases where both parents are college educated, it is more likely to be ordered. Also significant in this determination is whether the children are of an age that makes college expenses a real and current issue.

When will child support end?

- Child support obligations end when the child reaches age 21 in New York. New York has additional criteria for determining if and when the obligation to pay child support will end. Most states consider a child's marriage, the death of the child, and the child's living permanently away from the parent's home as terminating events. Other terminating events may be entry into the armed forces, Vista, Peace Corps, or other permanent events removing the child from the parental residence. New York courts do not have the authority to order support of a child beyond the age of 21. Parents are free, however, to agree to extend the child support beyond that age.

Maintenance

What is maintenance?

- The term maintenance refers to support paid by one spouse or former spouse to the other. It used to be called alimony in New York. The purpose is to meet the support needs of a party who is unable to provide for his or her own support. This is separate and distinct from child support.

How long will I pay maintenance?

- Courts consider a variety of factors, including:

1) The income and property of the respective parties, including martial property

2) The duration of the marriage and the ages and health of both parties

3) The present and future earning capacities (and histories) of both parties

4) The ability of the party seeking maintenance to become self-supporting and, if applicable, the length of time training would be necessary

5) Reduced or lost earning capacity of the party seeking maintenance as a result of having forgone or delayed education, training, employment, or career opportunities during the marriage

6) The presence of children of the marriage in the respective homes of the parties

7) The tax consequences to each party

8) Contributions and services of the party seeking maintenance as a spouse, parent, wage earner, and homemaker, and to the career or career potential of the other party

9) The wasteful dissipation of marital property by either spouse

10) Any transfer or encumberance made in contemplation of a matrimonial action without fair consideration

11) Any other factor the court finds to be just and proper

How do I enforce maintenance payments?

- Typically, an application must be filed in the appropriate court ("motions," "petitions," and "orders to show cause" are among the most common), and a judge or other quasi-judicial official will determine whether an "arrearage" exists and whether the party seeking relief is entitled to a judgment. If so, the court enters an order, and the judgment may be enforced against the delinquent payor wherever he/she resides at the time.

Can payments be reduced if I (the recipient) remarry?

- Probably yes. Maintenance usually terminates upon the remarriage of the supported spouse. If the support is being paid by an agreement of the parties, however, they may opt to continue the support even after remarriage.

What happens if the payor dies?

- Maintenance typically stops upon the death of the payor, although some agreements obligate the decedent's estate to continue payments. More common is a provision requiring the payor to purchase and maintain a life insurance policy that ensures an ongoing stream of payments to the supported spouse.

What happens if the maintenance recipient dies?

- Unless stated otherwise in a divorce agreement, spousal support will terminate upon the death of the recipient.

Is alimony dischargeable in bankruptcy?

- No. Payments from one spouse or ex-spouse to the other in the nature of alimony,. Child support, or maintenance are not dischargeable in bankruptcy.

Dividing Property and Sharing Debts

When does property get divided?

- A division of assets and liabilities may take place as part of the divorce.

What property gets divided?

- The Domestic Relations Law defines the categories of assets and liabilities to be divided by the parties to a divorce. New York will distribute all assets and liabilities acquired during the marriage. New York also includes the appreciation in value of any asset owned by either party before the marriage.

Are there rules identifying what is marital property and thus divisible in a divorce?

- The property and financial obligations or debts each party brought to the marriage, and which continue to be identifiable at the time of the divorce, will be considered separate property.

Property and liabilities received during the marriage as a gift or inheritance from someone other than a spouse, and which continue to be identifiable at the time of divorce, will be considered separate property.

Property and liabilities designated as nonmarital in a premarital or prenuptial agreement, which continue to be identifiable at the time of divorce, will be considered separate property.

A personal injury settlement is separate property, as is a gift to a spouse by a third party during the marriage.

What about an inheritance?

- Inheritances are treated as nonmarital property , as long as they remain in the sole name of the person who inherited it.

Will I get a 50/50 division?

- In New York an equal division is not mandated and the court is required to come up with a division that is "equitable" or fair but no necessarily equal, the facts that might justify an unequal division include the following:

- Each spouse's contribution to the marriage, including the care and education of the children and services as a homemaker

- Economic circumstances of the parties

- Length of the marriage

- Career interruptions or educational opportunities of either party

- Contribution of one spouse to the career or educational opportunity of the other

- Desirability of retaining an asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party

- Contribution of each spouse to acquiring, enhancing, and producing income or the improving of or incurring of liabilities to both marital and nonmarital assets

- Desirability of retaining the nonmarital home as a residence for a dependant child or any other party when equitable to do so or in the best interest of the child or that party, and when maintaining the residence until some future date is financially feasible. In making this determination, the court may consider first whether remaining in the marital home would be in the best interest of the child and, if not, whether other equities would be served by giving exclusive use and possession of the home to another party

- The intentional dissipation, waste, depletion, or destruction of marital assets

- Any other factors that would affect an equitable and fair division between the parties

Can I get half of my spouse's retirement?

- The simple answer is that the nonworking spouse usually can obtain a share of the other party's retirement if that retirement was accumulated during the marriage. Retirement benefits that were earned before the marriage or that will be earned after the marriage are not subject to division.

If the nonworking spouse wants part of a retirement plan or benefit, this usually can be accomplished through a qualified domestic relations order (QDRO), without tax condequences until payments begin.

Can I get half of my spouse's bonus?

- This depends on when the bonus was earned. If the bonus was earned during the marriage, it is likely to be divided , even if it will not be received until after the divorce. Future bonuses generally will not be divided, but may be considered as part of the recipient's income for calculating maintenance or child support.

Can I get back the money my parent's "gave us"?

-If money was given to both of you, it is a joint asset and likely to be divided as any other asset. If it was given solely to you, the Court may have to make the determination.

Who pays for student loans?

- If the loans predate the marriage, then the borrower generally pays for them. If incurred during the marriage, the loans likely will be treated as a marital debt. You may argue to the court that the loan benefits the other party without a distribution impact and that the debt should go to that person even if it creates an unequal distribution.

What happens if I, or me ex-spouse, gets transferred or offered a job in another city?

- If you are the custodial parent and you want to take the children with you, in most states you must obtain a court order prior to moving. As a general proposition, court will look at the continuity and stability of the custody arrangements and the harm that may result from disruption of established patterns of care. These factors weigh heavily in favor of maintaining ongoing custody arrangements. If your case is litigated, the court may consider the following additional factors:

- Reasons for the proposed move, which include whether the move is intended to frustrate the existing parenting schedules

- Effect of the proposed move on parental visitation and access to the child

- Whether the new visitation schedule will be adequate to foster a strong relationship between the left-behind parent and the child

- Treatment of relocation in the separation agreement

- Impact of the move on the current relationship between the left-behind parent and the child

- Extent to which visitation has been exercised or allowed

- Distance and travel arrangements required by the move

- Living conditions and educational, religious, recreational, medical, and other facilities available in the new location

- Demographics of the proposed location

- Compliance with prior court orders

- Availability of transportation and ability of the parties to meet transportation costs

- Possibility of transferring custody to the noncustodial parent

- Wishes of the child, if the child is of the age and maturity to have a say

- Lifestyle of the child in each location, including emotional, educational, and economic factors

- Availability of extended family or support groups in each location

- Incidence of domestic violence or false domestic violence allegations

- Special needs of the child and resources to meet those needs in each location

- Stability of the home environment and desire to continue that arrangement

- Quality and continuity of the child's education

- Distance/proximity between the two homes

- Desire of the noncustodial parent to assume custodial responsibilities

If you are not the primary custodial parent or if the children are not moving with you, your time-sharing schedule may need to be altered. The most cost-effective method for modifying the existing schedule is through mediation.