What to Expect When Expecting a Divorce
Face it, divorce is more common today than it has ever been. Yet, fear of the unknown will often cause people in unhappy marriages to stay in unhappy marriages. As a divorce attorney, clients have come to my office at many stages of the divorce process – either in contemplation of a divorce or after they’ve been served. No matter what the stage of the process, our initial meetings usually revolve around the question “What should I expect?”
The purpose of this article is to provide insight into 10 of the most commonly asked questions when contemplating or expecting a divorce.
1) WHEN WILL I BE DIVORCED?
This is the million dollar question with no real definitive answer. The hope is always that parties can come to a reasonable and equitable resolution without the need for court intervention. If you fit into this box, you could have a Judgement of Divorce in hand within a few months.
Don’t get your hopes up just yet. Often times people come to my office with what they believe to be a resolution they have worked out with their spouse. Unfortunately, parties tend to leave out or not consider certain issues which are necessities. Overlooking particular issues can often prolong the process even if the case never makes it to court.
Ultimately the length of this process truly depends on the parties and their willingness to have a meeting of the minds. If one or both parties don’t budge on any particular issue then you may have to wait one or even two years for finality.
The take away answer to this question – the time it takes to obtain freedom is determined by the parties.
2) WE HAVE A JUDGE – NOW WHAT?
If your matter has been assigned a Judge that means there are issues which you and/or your attorney have been unable to work out and you need the assistance of the Court.
Your first appearance is known as a Preliminary Conference. I often refer to this as a ‘meet and greet’ with the Judge. The Court, with the assistance of the attorneys, sets a discovery schedule which the parties are required to sign off on and comply with. This ensures that everyone stays on track and the matter moves forward to what everyone ultimately wants – a divorce! Be prepared to provide years’ worth of documentation (bank records, retirement records, closing documents, etc.), participate in depositions, and possibly testify at trial. Have no fear, many cases resolve prior to trial and even prior to depositions but in these situations it often takes a little more time for the parties to come to a settlement.
3) I HAVE A BOYFRIED/GIRLFRIEND – DOES IT MATTER?
The answer is No…. not really. For the most part the Courts will not concern themselves with your dating life. However, if retirement assets or marital property is being spent or liquidated to take your significant other on a European vacation, expect your spouse’s attorney to take issue with that.
Another consideration is if you have children. If you are going to bring your children around your significant other you may want to make sure that person doesn’t have a history or issues that could hurt your chances in a custody dispute.
I always recommend being discreet – emotions are a large factor which comes into play (See Question #1 above). If one spouse is angry or hurt by your new found love interest it may slow the process down to a snail’s pace.
4) WHAT IS “MARITAL PROPERTY?”
Marital Property is any property (or debt) acquired, by either party, between the date of marriage and the date on which the divorce action is filed in the County Clerk’s office. However, excluded from that is property received by gift from a third party, personal injury proceeds, or inheritance (“Separate Property”). Be aware that there are instances where Separate Property can be converted to Marital Property. In these instances what you would otherwise believe is yours and yours alone may have to be, at least in part, shared with your spouse.
5) WHAT DOES CUSTODY MEAN?
In New York there are two types of custody as to children: Legal and Physical.
Physical custody is determined by where the children spend the majority of their time. For example, the parent who has the child more than 50% of the time is the physical custodian. If the parents have a true joint sharing of time then it is considered joint physical custody.
Legal custody is not where the kids stay but rather who makes decisions for them. Legal decisions are any major decision made for the child. Here are a few examples: public school or private school, vaccines or no vaccines, therapy or no therapy, Catholic or Baptist. If the parties have joint legal custody than any of these major decisions will have to be discussed amongst the parties and a mutual decision made.
Clients often say “I want sole custody” but are unsure of what it actually means. “Sole custody” is when one party has both primary physical and legal custody of the child.
6) WHO PAYS CHILD SUPPORT AND HOW MUCH?
The party who is the non-physical custodial parent is the party who pays the child support. In New York, for the most part, child support is very formulaic. It is not widely known that the formula calculates the parties’ respective incomes mostly post-tax. For example, income is defined as gross salary less FICA (Social Security and Medicare tax). And yes, annual bonuses and overtime are included in a party’s gross salary.
The current combined parental income cap in New York is $143,000.00. If the parties’ incomes together total more than $143,000 a court has discretion and factors to consider in calculating a possible amount of support above that threshold.
The percentages of income which New York relies on in determining child support are as follows:
- 17% for 1 child
- 25% for 2 children
- 29% for 3 children
- 31% for 4 children
- No less than 35% for 5 or more children.
7) WILL I RECEIVE MAINTENANCE/ALIMONY
Alimony is referred to in New York as “maintenance.” The purpose of maintenance is to assist the less monied spouse in getting back on their feet, within a reasonable period of time, and to become self-supporting. The days of lifetime maintenance, for the most part, are a thing of the past. Courts now want to see the less monied spouse obtaining employment or enrolling in college or a certificate program to enable them to earn a living.
Much like child support, pre-divorce maintenance and post-divorce maintenance are also very formulaic in New York.
It is important to note that if the parties’ settle their divorce in New York, in order for a Judge to sign off on the Judgement of Divorce the parties have to be made aware of and sign off on the amount of maintenance the formula would have provided, even if the parties’ agree to waive it or negotiate a different amount.
8) CAN WE USE THE SAME LAWYER?
Unfortunately, it is unethical for a divorce attorney to serve the interests of two competing clients even if they are seemingly in agreement.
In some cases, parties will participate in mediation with an attorney. However, that attorney cannot advise either client, during the process of the mediation, of their respective legal rights. I always suggest that parties who participate in mediation have the agreement reviewed by competent and independent counsel prior to signing it. Always ensure your rights are protected from the onset because changing a duly signed and notarized agreement later is not as easy as many think.
9) HOW MUCH WILL THIS COST ME?
Again, that depends on you and your spouse. It’s my experience that when parties come to the table ready to negotiate and check their feelings and emotions at the door the whole process can cost significantly less.
What you’ve heard is true. Litigation is expensive. Once a divorce matter proceeds to the court room, attorney’s fees can grow very rapidly. In some cases, litigation is very necessary and the benefits far outweigh the costs. But not always. Listen to your attorney. Have that discussion. Spending $10,000 to fight over $2,000 is not beneficial. A good attorney will help you manage those expectations.
10) HOW DO I SELECT MY ATTORNEY?
Selecting your attorney is like selecting a partner or teammate. There needs to be a level of trust and mutual respect. If those two things don’t exist – stand up and walk out. Like selecting a doctor to perform surgery, you can always go for a second opinion. Your attorney is guiding you through and giving you advice on some of the most important decisions you will ever make. Make sure the first decision you make, in picking an attorney, is a good one.
Be wary of selecting an attorney based on low cost retainers. Pay attention to hourly rates. Most divorces are not flat fee. If you don’t, you will find yourself with no retainer balance in the first few months.
The process may come easy and it may not. I have assisted hundreds of people in obtaining their freedom. Some get the deal of a lifetime, some pay more than they wanted in maintenance, some are happy they kept their retirement, and some are unhappy they only see their kids every other weekend. Expect, at least to some degree, your life to change. But know that every single client has come out on the other side.