Though it may be more difficult to prepare for a contested divorce if you’re dealing with an uncooperative spouse, it is possible to do so. Your preparation should focus on the areas where you think the other party is most likely to raise opposition or refuse to cooperate.
For instance, let’s say you are concerned the other party isn’t going to give you a separate property credit for putting premarital funds into your shared marital residence.
In that case, you can prepare by gathering as much evidence of the pre-marital contribution as possible. There are many different ways of gathering this sort of information. Sometimes you have to go back to the real estate attorney who represented you when you were buying the house to get the closing statement. You may have to go to your bank to get copies of checks which were cut, or copies of old bank statements that attest to your premarital funds. These pieces of evidence might be in the bank’s archives, which means you may have to pay a fee and wait (sometimes for several months) for the bank to give you a copy. It is advisable to start gathering this sort of evidence as soon as possible if you foresee that the other party is not going to settle or cooperate on a given issue.
If the other party is going to contest custody issues, there are also different ways you can prepare. For one, you can start lining up statements. These would be testimonial statements from unbiased people who are involved with your child or children, such as teachers, guidance counselors, principals, doctors, sports coaches, youth group leaders, and people who head up your children’s extracurricular activities. These testimonial statements should speak to your involvement with the children and the relative lack of involvement of their other parent. They can be simple statements of fact, involving things like which parent brings the children to school and which parent picks them up.
If your children’s school or extracurricular activity center keeps sign-in lists, you should also get copies of those records. You should be able to contact the school administration and see if you can get copies in advance. Sometimes, schools have policies not to release those sorts of records without a subpoena. In that case, simply report the information back to your attorney, and they will prepare a subpoena for the records if they are necessary.
The key here is to request all potentially relevant documentation from all of the various entities where they are kept. If people are willing to simply give you copies of various documents, it’s a lot faster and easier than having to prepare and execute a subpoena.
Most importantly, you will want to start the process of requesting (and, if necessary, subpoenaing) these documents as soon as possible. If you do have to go through the route of subpoenaing a document, it may be several months before you actually have access to the document itself. As such, time is of the essence, and the earlier you can get things started, the better.
Especially if you’re still residing with the other parent, begin tape-recording (or video-taping) negative interactions with him/her (or between him/her & the child). In one case I had the Mother tape-recorded my client making severe threats of harm towards her during arguments. Take pictures to corroborate drug/alcohol issues. In another case I handled my client took pictures of the trash can filled with empty liquor bottles each week. Keep a paper-trail – e-mails or texts confirming your versions of events or communications relevant to the custody issues.
Another thing you may want to discuss with your attorney is whether to hire a private investigator, a forensic accountant, a forensic psychologist, or any other type of expert investigator or witness. Depending on the issues that are being contested in your case and the strength of the evidence an expert is likely to uncover, it may be a good idea to hire on a specific type of expert for investigative/evidence-gathering and testimonial purposes.
Notably, not all cases call for the use of one of these experts. This is especially true if your finances are limited—as is often the case when people are going through a divorce—since they tend to be very costly. You should definitely discuss the relative merits of hiring a particular expert with your attorney. In many cases, evidence that an expert might uncover can be found just as easily through the normal course of discovery, which is a pre-trial stage every contested divorce goes through.
For example, let’s say you are getting divorced, and you receive a “net worth statement” from your ex which does not report a house in another state which you know about and believe they own. In this case, some people might assume you need to hire a private investigator or forensic accountant – but there are other things that you can try first.
Another option would be to send out a Demand for Interrogatories. This is essentially a series of questions the other party will have to answer under oath. You can pose specific questions to address or try to weed out specific issues.
In this case, one potential question you could pose is, “Do you own any other property or have any other property anywhere in the world other than those you have listed on your net worth statement?” If they answer yes, then they will have to disclose the house as an asset, and there is no need to hire a private investigator or forensic accountant. If they say no, on the other hand, then they are obviously committed to hiding the house as an asset, and you will most likely need expert investigators to track down the evidentiary proof that the house exists and they own it (for instance, the deed or title).
Will Adultery Have Any Effect On The Divorce Process In A Contested Divorce In New York?
No, adultery will usually not have any effect on the process of a contested divorce in New York. Adultery is considered grounds to terminate a marriage, but it is not a statutory factor in establishing child support, spousal maintenance (otherwise known as alimony), or asset distribution.
People—especially people whose spouses have been unfaithful—often believe adultery should be a factor in divorce cases. However, in the State of New York, it normally doesn’t impact divorce cases very much.
The one notable exception to this rule has to do with custody decisions. If one of the parties has an affair and introduces their child or children into the affair in certain ways, it can affect custody decisions. For instance, if the cheating partner was having sexual relations with their paramour on the living room couch of the family home, and then their child came home from school and saw them in the act, I would definitely want to bring that up when arguing a custody case. It doesn’t even have to be as serious as a child witnessing their adulterous parent fully having sex. Even if the child just saw their parent kissing the paramour, I would bring it up during a custody case.
I had one case, in fact, where this exact thing came up. In this case, I was actually representing the party who had the affair, the mother of the child. The father said that their daughter went out to her bus stop to wait for the school bus, and then looked back on her way and saw her mother kissing the neighbor. The attorney on the other side did their due diligence in bringing up this episode during custody arguments. They were able to claim that my client introduced their child to the affair, and thereby emotionally affected—or at least potentially emotionally affected—the child by doing so.
Cases like these illustrate the very limited ways adultery would affect anything about a contested divorce case.
For more information on Preparing For A Contested Divorce In NY, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (347) 797-1188 | (914) 362-3080 today.