What Are The Options Available To Someone In The Divorce Process?
Is it better to merely get a legal separation, or proceed with filing a divorce case?
Prior to October, 2010, one generally needed to make an allegation of fault against his/her spouse in order to get divorced. One common way around that was to do a separation agreement. The law provided that if the parties remained separated pursuant to a Separation Agreement for more than 1 year, then either could thereafter file for an uncontested divorce based on the agreement. This indeed was one of the leading reasons why people prior to the law’s amendment filed for separation as opposed to divorce.
Now that New York has passed “No-Fault” Divorce, however, there is no longer any reason to allege fault in order to get divorced – one only needs to state that the marriage has broken down “irretrievably” for more than 6 months. This is roughly the equivalent of what many other states call “irreconcilable differences.”
Once the parties are divorced, then generally if one is covered by his/her spouse’s medical insurance, their insurance will terminate. This is because very few plans cover “ex-spouses.” As such, a leading reason why some people still choose to get a legal separation first is to preserve continuity of insurance coverage for at least another year.
With the Separation Agreement, the parties can resolve every other issue which would otherwise be brought up in the divorce. The agreement would cut-off accrual of marital assets & debts, and can equitably divide them. The agreement can also provide for custody, visitation, maintenance (i.e., alimony) & child support. The only thing the agreement cannot do is actually terminate the marriage. That takes a divorce proceeding – which either party can file for upon the expiration of 1 year (or later) from the date the agreement is signed.
Another option that people have right at the outset of a divorce process is choosing mediation versus hiring their own attorneys to try to negotiate a settlement. Mediation does work in some cases – statistically, it results in a full resolution of the case about 50% of the time, and it can save people money and stress. If you only retain 1 attorney for both people, you’ll pay approximately half as much as each of you would pay for having your own separate attorney.
Even in cases where people do mediation, it’s still recommended they have their own attorney “waiting in the wings.” You’ll still go through the mediation process – meaning you will sit down with the mediator for about two or three sessions and attempt to come up with the basic terms of the settlement. However, you want your own attorney waiting in the wings so you can go back to that attorney and ask them questions about what the mediator has said during the process, and whether or not it is a fair settlement. Those are questions the mediator cannot answer for any particular party. They are not there to give legal advice, nor are they there to say whether or not a settlement is fair to a particular party. So, a lot of times I have parties that go through mediation and hire me simultaneously, so they have their own attorney that they can come back to.
Now, with respect to mediation, the unfortunate thing is when it doesn’t work, the parties actually end up spending more money than if they had just gone with their own attorneys to negotiate a settlement from the beginning. The reason is because if you paid $5,000 for a mediator, and mediation doesn’t work, then that money is gone. On top of that cost, each party must hire their own attorney and spend an additional $5,000-$10,000+. A failed mediation can also result in the parties spending a lot more time on the whole process, because many attorneys will start from scratch.
So, the other obvious option that people have is to simply hire their own attorneys. A lot of times the process of settlement negotiation will involve the parties exchanging net worth statements at the outset, which are simply sworn statements that set forth income, expenses, assets and liabilities.
The net worth statement then serves as a starting point to negotiate a fair settlement on both ends. A lot of times after the net worth statements are changed, the attorneys will then get together either via email or via phone and discuss what each respective party is seeking in terms of settlement. Then, they’ll see how far apart they are on settlement. Sometimes they are not far apart at all. Sometimes the attorneys will agree on pretty much everything because the parties have pretty much agreed on everything. If so, then one attorney or the other will draft a settlement agreement (which is usually a 20-30+ page document). The parties will sign it and they will essentially be done.
If the parties are very far apart on some issues, then the attorneys will negotiate with each other and go back to their respective parties. They will tell them where they are at in the negotiation process, and ask them whether or not they are willing to give in a little on a particular issue.
Oftentimes, I will tell clients there is the law – and there is also just plain cost-benefit analysis. For example, a lot of times a spouse – especially if it’s the less-monied spouse – will make a claim to an asset that they are clearly not entitled to. Let’s say it’s a clearly premarital property, the non-titled spouse didn’t make any investments in the property during the marriage, and maybe it’s even a short-term marriage. They have no kids together, but the spouse still says they want a piece of that property, and that they don’t care what the law says.
My client will go to me and say, “Well Dave, what do you think about that?” I’ll tell them that the law completely supports them. If its premarital property, her name isn’t on the title, she didn’t invest in it, you have no kids, and there are no other factors that justify her getting a share of that property, then the law will generally support you.
However, the problem is often that the opposing party is not obligated to settle. There is no way an attorney can force a settlement on the other side, no matter how well justified the legal argument. If she wants to contest the case, you are looking at paying $10,000+ to go in front of a Judge on a contested case. Then, from a pure cost-benefit analysis, is it actually worth it to you to offer $5,000 or some other amount, just to make the issue go away? Even if it’s not right in the law, it may actually end up saving them money, which is kind of the point of the issue.
If I can save money for a client, I’ll advise them to put their feelings and their sense of justice aside. I’ll advise them to save that money for another day, or give that money to your ex-spouse and the mother of your children in order to make the issue go away and wrap things up.
There are instances in which one spouse is the “breadwinner” of the family – and then abruptly leaves the marital residence and refuses to support the family. The remaining spouse should have a game-plan on what options to choose from.
While often times if people are getting a divorce anyway, the knee-jerk reaction is to file for divorce. If there are emergency issues, however – such as how the rent/mortgage going is to be paid this month – then filing a motion in Supreme Court may not be the way to go. This is because Supreme Court is often slow in deciding such issues. Even on an emergency motion the court gets up to 60 days to decide the motion – and that’s from when all papers have been submitted by both sides (which especially in NYC & surrounding counties can take 1-2+ months in itself). In other words, if you need a quick order, filing a motion in Supreme Court may cost you 4-5+ months just to get a decision – and even that’s on an emergency motion.
Generally, the courts do not want the same issue pending in two courts at the same time. In other words, Judges would otherwise frown on the same party filing for divorce in Supreme Court & including a maintenance (i.e. alimony) claim while simultaneously filing a spousal support case in Family Court. However, one major exception is where the party requesting support is “in danger of becoming a public charge” – in other words, without the Court ordering the other side to pay support, the “needy” spouse would otherwise need to apply for some form of public assistance (food stamps, rent assistance, etc.) in order to pay their basic bills.
In Family Court, one can get an initial court date within 4-6 weeks of filing one’s support petition – and therefore usually get some form of support order entered in far less time than it would generally take for Supreme Court to decide the support issue. As such, if emergency support is needed, the requesting party should strongly consider proceeding in Family Court first (of course after consultation with an experienced Family Law attorney)!
Filing First For Divorce
A final “option” is really a non-option – which party should file first. There aren’t any direct advantages or disadvantages to filing first for divorce. The filer pays the court fees, and strategically speaking, I sometimes find that it’s better to be the defendant. I often analogize it to Muhammad Ali’s rope-a-dope fight, where he kind of leaned against the ropes and let the other person attack him. He found that it was actually strategic to ward off the attack while taking jabs & leaning against the ropes. He actually won that fight because he allowed the attack to exhaust itself. In the divorce context, I sometimes don’t mind if the other side has to put on their entire case first, because then I get to see exactly what they are coming at and the full range of their attack. By having this knowledge, I am better able to plan my defense on every single issue before going on the attack myself.
The other side won’t have the opportunity to plan their defense as effectively as I was able to. Sometimes I like that, but there are also cases where people will come to me, especially if they are the more moneyed spouse. I have to advise them that any delay in filing just pushes back the cutoff date of the accrual of marital assets. So, if they are the more moneyed spouse and they are continuing to invest money into investment accounts or retirement accounts, delaying the filing by several months just means several more months of accrual of marital assets that they will end up having to share. So it’s kind of a Catch-22. Other than that, there is really no advantage or disadvantage to filing first.
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