By Michele P. Ellerin, Esq., Partner, Jacobowitz & Gubits, LLP
There are many factors to contemplate when considering a divorce. The below tips will help you be aware of the impact a divorce will have on you, your children, finances, taxes, insurance and property. Here are some key factors to consider before filing for divorce:
Consider your Options
There are many ways to approach a divorce. Divorces can be as amicable or as contentious as the parties make them. You may both want to negotiate a fair and equitable resolution without ever having to set foot in court, keeping the overall cost of the divorce to a minimum. However, it is necessary under some circumstances, to seek court intervention in order to safeguard certain rights of yours, gain protection from domestic violence, or obtain temporary financial support while you work towards a resolution.
How well will you and your spouse work together to dissolve your marriage and divide the marital estate? Are you on the same page regarding custody of and access to the children, and the payment of child support? Is there a power imbalance that could result in a lopsided resolution? These factors, amongst many others, will determine which option works best for your situation.
Some of your options include:
- Mediation is a neutral and private forum used to facilitate communication between parties in the hopes of promoting a mutually acceptable resolution or settlement. A warning, however, mediators do not represent either party or ensure that each party gets what they are entitled to under the law, and agreements arrived at through mediation could end up costing you more money in the long-run. It is still important to have sound legal advice to guide you through the mediation process. Mediation is not recommended where there is domestic abuse in a marital relationship or where addiction issues are present.
• A Separation or Settlement Agreement is a legally binding contract signed by both parties which is intended to resolve equitable distribution of assets and debts, the payment or waiver of maintenance, and child-related issues. This can be a very complex and detailed document depending on your unique situation. Once the parties have entered into the binding agreement, that agreement will form the basis for an uncontested divorce action, without you ever having to go to court. You also may choose to remain legally separated, and not divorced.
• A contested divorce results when the parties cannot agree on the terms of a divorce. They are not necessarily fighting over being divorced, but require the court to resolve some or all of the issues involving support, custody, access, distribution of marital property and liabilities. While most contested divorce actions ultimately settle before trial, the Judge can and will preside over a divorce trial where one or both parties become so entrenched in their positions that it becomes impossible to reach a workable agreement.
What are grounds for Divorce?
Most divorces in New York are based upon the “irretrievable breakdown” of the marital relationship. To obtain a divorce on this ground, one party only need swear or affirm that the relationship has broken down for a period of six months or more. The other party cannot challenge this statement, and there is no requirement to provide proof. What is required, however, is that all of the issues involved in the divorce must ultimately be resolved in a Separation Agreement, a Stipulation of Settlement, or by the court after a trial.
Divorce will have an impact on your children. We always recommend that you do not involve your children in any way in your divorce. Do not tell your children details of your divorce and do not disparage your spouse in the presence of your children. Remember, your soon-to-be ex is still the child’s parent. One of the major factors the court considers when determining custody is which parent can best foster a relationship with the other parent. Be thoughtful in handling issues related to children.
Custody litigation can be costly, because in addition to generating more attorney fees, it also involves the use of psychologists and neutral attorneys for your children that you and your spouse will have to pay for. If your finances are limited, it may be less expensive to address custody and access in family court, because these additional expenses are often lower there. You may want to file in family court before anyone files for divorce. Weigh these options with your attorney and you’ll be better prepared to make a decision that is right for you.
Understand your Financial Landscape
After the issue of child custody, fights over money can lead to contentious and expensive divorce proceedings. It is important that you know and understand your finances, including income, expenses, savings, retirements, and debt for both parties, before the divorce action is started. Determine the costs associated with your home, including utilities, property maintenance, mortgage, and insurance. You also need to have an understanding of your monthly expenses and income. Do you have equity in your home? What is your home’s current market value? How much debt do you and your spouse have? Marriage is an economic partnership just as with a business, and a divorce is the dissolution of that partnership. The more you know about your finances, the better positioned you will be to protect your interests during negotiations or litigation.
Consult and Hire an Experienced Attorney
Come to the consultation prepared with as many questions as you can think of to ensure you get all the answers you need. Bring your tax returns, investment accounts, bank statements, checking accounts, credit card statements and a snapshot of your household expenses. Ask questions about the fees and if there will be additional fees should you need to go to a hearing or trial. Going through a divorce is a deeply personal experience, so you want an attorney you can trust and feel comfortable with discussing all aspects of your relationship with your spouse, your children, your finances, and what you want from your future.