Part 2: Divorce in New York – What You Need to Know
Unpredictability sums up most divorces. At the outset, there might appear to be a clear path toward resolving your differences with your spouse. But you don’t know what you don’t know until you find out.
This article, Part 2: Divorce in New York – What You Need to Know, will give you additional insights into how the legal system works in New York for getting a divorce.
As we mentioned in Part 1, asking questions early and becoming knowledgeable about divorce can lessen your anxieties and empower your actions.
Let’s discuss additional critical factors that are important for understanding how the New York legal system handles divorce cases.
Main Issues in Divorce That Are Determined by the New York Supreme Court
Maintenance, Alimony, and Spousal Support
Maintenance, alimony, and spousal support are terms for the same thing: how much money the higher-earning spouse (the “monied” spouse) pays to the lower-earning spouse (the “non-monied” spouse) for his or her support and for how long.
There are some important formulaic guidelines for this, but there is also a substantial amount of judicial discretion that goes into any award, which will depend on the parties’ lifestyle, assets and abilities to be self-supporting.
Child Custody for Minor Children Under the Age of 18
Custody cases are often divided into two categories—legal custody and physical custody.
Legal custody refers to the decision-making aspect of being a parent.—For example, who decides on the pediatrician, who picks the extracurricular activities, or who determines the school your child attends.
Physical custody refers to access: how will your child divide his or her time with each of you?
The only rule in determining custody is what is in the best interests of the child. That is obviously a very broad definition, but you will see this quoted time and again. The court may consider any of the following:
- Who is the child’s primary caregiver,
- Parenting skills demonstrated by each parent,
- The physical and mental health of each parent,
- Work schedule,
- Childcare plans,
- Other siblings and family members,
- Child’s wishes, and
- Cooperation between parents.
Courts generally have broad discretion in weighing these factors to reach a decision regarding child custody.
Although courts favor joint custody, they recognize that a successful joint custody arrangement requires two cooperative parents willing to work together, which is not always possible.
Child Support for All Unemancipated Children Under the Age of 21
Child support is now very formulaic.
The Child Support Standards Act (CSSA) provides for the calculation of child support using a formula that is based on the number of children and their parents’ combined income.
However, because the CSSA only considers combined parental income up to a certain “cap,” there is considerable judicial discretion in calculating the actual amount of child support awarded.
This amount is primarily a function of the child’s needs and the family’s lifestyle. The duration, on the other hand, is a matter of statute, and barring a child having special needs or other unusual circumstances, child support terminates at age 21.
Your lawyer at Garr Silpe will have experience in calculating estimated child support requirements.
Equitable Distribution (How Money and Other Assets Are Divided)
Equitable distribution refers to the division of property owned by the parties in a divorce.
The court may consider many factors in making its determination, including the length of the marriage and each spouse’s contributions while married, such as through employment or homemaking.
The most common outcome is a 50/50 division. But what you will often hear from courts is that “equitable does not have to mean equal.”
Depending upon the factors in your case, including the length of the marriage and each spouse’s contribution to acquiring property, a court can make an unequal division of assets. The court strives to divide marital assets between spouses in a manner it determines to be fair. It is here, particularly in cases involving a sizable financial estate, that the quality and experience of your lawyer matters most, because an unequal distribution of a large marital estate will have meaningful consequences.
Debt
Debts are like assets, only in reverse. Generally, the same factors that a court looks to in awarding assets will be the same factors it looks to in dividing debts. In a long-term marriage where the assets are being evenly divided, it is likely that the debts will be too.
Life Insurance
Courts may order a spouse providing child support or spousal support to purchase life insurance in an amount sufficient to cover those obligations should that spouse die before his or her obligations expire.
The amount of life insurance ordered should correspond to the amount owed by the payor spouse and it can be reduced as his or her obligations decrease over time.
Influence of Prenuptial (or Post-Nuptial) Agreement on Determination of All Factors
New York courts will enforce prenuptial agreements unless they are found to be unconscionable, or if they fail to meet statutory requirements, or were procured through fraud or duress.
If the court finds that the agreement meets these prerequisites and is enforceable, then it will direct the division of property and support obligations according to the terms of the agreement.
The only exception here is child custody and child support. Prenuptial Agreements cannot determine custody or support. So parties cannot make binding declarations about what they hope will occur if a child is born into a marriage and a divorce occurs thereafter.
Other Considerations
Settlement vs. Litigation
Anyone who doesn’t want to settle their divorce in an amicable fashion, please raise your hands. What? No one? That’s right. Nobody aspires to have a litigated divorce. But sometimes it becomes necessary.
Despite our best efforts and intentions, some issues can prove intractable and need a judge’s assistance to resolve them.
But just because you can’t solve one issue without judicial intervention doesn’t mean you can’t settle many others. This is not an “either or” outcome. You can litigate some issues and settle others.
How Long Is the Process?
It varies depending on the degree of difficulty, money, and animosity. But a good range to think about is six months to two years.
Confidentiality
People don’t always think about confidentiality, that is until they see their spouse’s bestselling novel about the breakup of their marriage in the window of their local bookstore.
Confidentiality provisions are increasingly common, and with the proliferation of internet sites and forums and an individual’s ability to reach millions of people in an instant, it has become increasingly important to have a detailed and easily enforceable confidentiality clause in your agreement.
Cost
The cost of settling or litigating a divorce case depends on many factors, including the parties’ financial circumstances and their willingness to fight over assets. In addition, whether the couple has children from the marriage may affect how much it costs to settle or litigate.
Obviously, one of the most important ones is how much money you have. The more money you have, the more likely it is that you will be willing to spend it for a better outcome. After all, if your marital estate is $1 million, then fighting tooth and nail for an additional 10% of the marital pot may not be worth it since you might spend that same additional $100,000 on legal fees.
On the other hand, if the marital estate is $25 Million, and the work involved in trying to get that additional 10% is approximately the same, i.e., $100,000 in legal fees, the cost benefit analysis starts to look much better.
Custody issues are much more complicated. A custody battle is not driven by money and a simple cost benefit analysis is not so easy to calculate. Often, custody fights can be very expensive, and people tend to get entrenched in their positions early and believe they’re fighting over “principles” or are insistent on mathematical equality. You have to seriously consider the personal and financial considerations before undertaking a custody fight.
When Do I File and What Do I Say to My Spouse?
The answer is it depends.
When you file for divorce, there are many important strategic decisions to make. The first is deciding what message you want to send. Is it, “I want this to be amicable” or is it, “I’m finally standing up for myself”?
This is often the first and one of the most important strategic decisions you will make with your lawyer.
Domestic Violence and Abuse
If you or anyone you know is subject to domestic violence or abuse, there is help available. Call the New York State Domestic and Sexual Violence Hotline at 1-800-942-6906 for assistance. Or find more information here. Additional resources include the New York State Coalition Against Domestic Violence.
Take Action
Our attorneys at Garr Silpe know a lot about divorce. And we know that having more knowledge and understanding about divorce in New York can make a significant difference in your life.
We’d be happy to discuss your situation with you. Whether you are still exploring the idea or already know that you want to move forward with a divorce or other family law matter, get in touch with us. If you are considering a divorce in New York or have another New York family law matter, contact Garr Silpe, PC today to schedule a consultation.