There are many different reasons why a party should consider a settlement. I usually talk with my clients on just a pure cost benefit analysis but also factoring in what they may be looking to spend in terms of my fees. If I’m representing the more monied spouse, they may be contributing towards the other side’s attorney’s fees as well. Let’s say the issue is one of maintenance, that’s New York’s term for alimony and child support, and let’s say the parties are maybe a $1000 per month apart. If you’re at that point in the negotiation you can project out that maintenance will last for about three or four years.
In a particular case it can be less or more (in terms of duration), depending principally on the length of the marriage. If you project that out, then a $1000 per month difference is $36,000 over the course of 3 years. You will invariably spend $36,000 taking the case to trial just on your own attorney and that’s not even talking about what you would spend (if you’re the more monied spouse) on the other side’s attorney’s fees. It still doesn’t mean that ultimately you are not going to have to spend some money on your own attorney. But basically, the money you’re spending (by going to trial) is the maintenance money you would otherwise be getting. In other words, if you’re apart by $1000 a month and you project that out over three years you are $36,000 apart. You may be spending a large share of that $36,000 on your own attorney even if the other side contributes toward your attorney.
At the end of the day, some people just want to get done with their case from an emotional standpoint, from a stress standpoint. It’s nice to just be done and move on with your life. So there’s those considerations that come into play and I certainly discuss all of those ancillary issues with my clients to really put it in stark contrast between settlement and taking a case to trial and what it will cost in dollars and cents but also what it will cost in heartache, stress, time away from your job and your family to take a case to trial.
Should I Or Can I Ever Hide Assets in A High Income/High Asset Divorce Case?
It is very hard to do that, especially in a high income or high asset case, because the other side will probably be doing their due diligence by tracing every single dollar of money you’ve taken in the first place. One of the principal things the other side will be doing – beyond the attorney looking over the financial documents – is hiring a forensic accountant to go through financial documents. Whether a party may be successful in “hiding assets” may depends on how long a time period the person has known the divorce was coming – and therefore how far in advance they have to start planning things out.
Of course, I don’t advise clients (and I ethically can’t advise clients) to hide assets. In fact, it’s the opposite – an attorney must advise clients to disclose everything they have, otherwise the attorney can get into trouble.
Certainly, I’ve seen cases where clients have seen a divorce case coming long before the case is actually filed. It’s not so much that they hide assets, it’s that they start getting rid of assets. For instance, they set up blind trusts – or I’ve seen other cases where instead of taking in money in checks or other traceable forms, they start taking in more money in cash. If they are an employee, they start deferring income, and/or they start deferring bonuses they’ve traditionally received. They may go to their boss and not put anything in writing but just simply say to their boss, “you know what? I don’t want a bonus this year, give me a bonus next year i.e. when I’m done with my divorce case.”
As long as nothing’s in writing then it becomes hard for anyone to trace that. If at the end of the day the boss is friendly with the employee, while you can subpoena the boss and grill them on why they didn’t give a bonus to that employee, they can just “we just didn’t give one to him/her based on company performance.” Then it becomes hard to prove the other side did anything untoward in deferring cash or deferring bonuses they would otherwise receive.
As such, there are ways to suppress income and assets and then it becomes up to the other side to discover same and thus prove to the Judge that at the end of the day, the Judge should consider that asset as if it still exists or that income as if it still exists.
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