How does the divorce process start?
The decision to divorce is a difficult one. The process can also be very challenging emotionally. It is said that divorce is one of the worst things that ever happens in a person’s life.
During difficult or depressing times, the issues that we normally manage become much larger, and sometimes, overwhelming.
You may find it helpful to consult with a therapist or divorce coach, individually or with your spouse, not only to help you decide if divorce is necessary, but to help you understand why the marriage is ending and ease the emotional challenges ahead. This can save time and make the process smoother.
Would your spouse be surprised?
One of the first questions I ask a potential client is, “Would your spouse be surprised to know you are meeting with me?”
If the answer is yes, that probably means that you are much farther ahead than him or her in thinking about being out of the marriage. It probably also means that your spouse will need time to catch up to you emotionally.
My goal is to make your divorce as smooth as possible. That means understanding a little about the dynamic of your relationship and figuring out the best way to proceed.
Divorce is not a one-size fits all endeavor. By tailoring it to your individual needs we can insure a smooth process.
So how do I decide which process is the best for me?
Before we can answer this question it is important to visualize what kind of divorce you’d like to have.
The main differences between a traditional litigation and alternative processes such as mediation and collaborative divorce, are the goals and how you get there.
In a traditional litigation the goal is to “get everything you can” without any regard for the other side. Lawyers argue and try to convince each other, and the judge, that their position is right. It’s a costly winner-take-all battle.
In certain circumstances, litigation is the right option. If that is so in your case, we will still make every effort to be respectful, and at the same time, make sure your rights are protected.
In mediation or collaborative divorce the goal is to have an agreement that is fair for both of you and good for your children. You and your spouse create solutions together from the ground up taking each other’s interests and concerns into consideration.
This is a good foundation for being able to solve problems in the future and work together as parents.
How do I achieve the best outcome?
After you visualize what kind of divorce you would like to have you should consider how active you want to be in the process.
In this information age more and more people are taking charge of their lives – and their divorces. The days of blindly following the advice of your lawyer are numbered. This is especially true when it comes to divorce, since the decisions that that have to be made will effect how you, your soon-to-be-ex and your children live your lives.
Another fundamental difference in the processes is that in a traditional litigated divorce you have no control. Your lawyer decides what is important and your lawyer decides how to achieve it. And if the other lawyer doesn’t agree, a judge will decide for you.
In collaborative divorce and mediation you choose the process, you participate in making decisions and you control how much time and money is spent.
How much will a divorce cost?
It depends upon how complex your issues are, how much conflict you and your spouse have, and how cooperative your lawyers are.
In mediation there is no retainer required up front. You pay at the end of every session, and pay small upfront costs for preparation of the agreement and divorce papers. Because you are both working with one professional this is usually the most cost-effective process.
In the Collaborative process a retainer is required up front which is replenished as needed. Other collaborative professional may require retainers as well. By working together these specialists provide you with a cohesive, mindful and successful divorce, which can be very cost effective.
In traditional representations you also pay a retainer up front that is replenished as needed. If your case doesn’t settle, an additional retainer will be required before trial. This is usually the costliest process, because instead of working toward common goals spouses and their attorneys are usually at odds working toward different goals.
In all processes there may also be court costs, appraisal and other fees.
What if I can’t afford the fees?
If there are marital assets that only your spouse can access perhaps he or she would agree to pay the cost of mediation, or your attorney fees. If your spouse does not agree it is unlikely that you would be mediating. In that case a motion can be made in Court to order your spouse to pay for your legal fees. A recent change in the law has made it easier to get interim counsel fees based on the belief that without the necessary funds you would be disadvantaged. Even if we are asking the Court to order your spouse to pay your fees, you will need some source of funds up front for the motion.
What should I do to begin to prepare for my divorce?
The decision to divorce is a difficult one. The process can also be very challenging emotionally. Many people find it very helpful to consult with a therapist to help make the decision and to ease the emotional challenges of the process. If you have children you may also want to consult with a child specialist about the best way to prepare the children for, and to care for them during this transition. It is usually best for you and your spouse to tell the children together that you will be separating or divorcing and to assure them that you will both remain very active in their lives.
Before a divorce can be finalized the following decisions will have to be resolved:
a. Decision-Making and Parenting Time: How will you and your spouse make decisions for your children and how you will spend time with them? To prepare for parenting you can begin thinking about how you have made decisions for your children in the past and how you would like to in the future. In determining how each of you will have parenting time with your children consider what everyone’s schedule is and how you and your spouse can maximize your time with the children.
b. Support: Practically speaking, you need to figure out how the same amount of money that used to support one household now will be able to support two. Even if you have never lived on a budget in the past, this is a good time to start. You will want to make sure that your expenses do not exceed your income. Begin by preparing a list of anticipated, post-separation monthly expenses. There are statutory guidelines for child support and temporary maintenance that will be considered as well.
c. Equitable Distribution: How will you divide what you have accumulated during the marriage? You should begin to gather whatever financial information you can. You will need at least two years of tax returns, recent pay stubs, and any and all documentation of your assets and debts. This includes bank and brokerage account statements, IRA and other retirement account statements, life insurance statements, credit card statements, etc. You may ultimately need to have your house, apartment, business, pensions, licenses and degrees appraised. You and your spouse are entitled to full financial disclosure from each other and will likely be exchanging sworn affidavits of net worth, no matter which process you choose.
Do I need grounds for divorce?
No! Finally in August 2010 New York became the last State in the nation to pass a no-fault divorce statute which took effect in October 2010. You can now get divorced based on an irretrievable breakdown in the marriage for at least six months, provided one spouse says so under oath. This does not mean everyone can get divorced automatically. If you have children you must resolve how you will make decisions for them and how you will spend time with them; if you accumulated assets and debts during your marriage you will still have to figure out how to divide them; and if one of you needs support from the other, that will have to be worked out as well before a divorce will be granted.
Passage of this statute was intended to mean that if one spouse claims that there has been an irretrievable breakdown, the other cannot contest it, and the spouse making the claim does not have to prove it. The no-fault provision was passed after studies showed that when other states passed no-fault divorce laws, incidents of domestic violence decreased. At the same time that no-fault was passed in New York, the legislature also passed a Temporary Maintenance Act, which is a formula for spousal support while a divorce action is pending. In addition, statutes easing the ability to get interim counsel fees and child support modifications were also passed in 2010.
Other grounds for divorce still apply. In other states when no-fault was passed, fault grounds were eliminated. Not so in New York. That means you can still get divorced based on the following grounds:
- Cruel and Inhuman Treatment. The situation has to be so serious that it is unsafe or improper to continue to live together;
- Abandonment. This exists if one of you left the marital residence more than a year ago, or if one of you has refused to have sex with the other for more than a year;
- Adultery. This must be proved by third party evidence, which is not so easy to obtain. Often adultery is included as part of cruel and inhuman treatment;
- Imprisonment. The defendant must be imprisoned for three or more consecutive years;
- Decree of Separation granted by a Court more than a year ago;
- Having lived separate and apart after signing a Separation Agreement for more than a year