Number 1: The Basic Issues in a Divorce
A divorce consists of the following issue: (i) Child Custody; (ii) Child Support; (iii) Equitable Distribution (i.e., dividing the marital assets); (iv) Maintenance (alimony); and (v) the emotional impact.
Number 2: No Fault Divorce
As of October 13, 2010, you no longer need to have grounds to get divorced in New York. You can simply state that the marriage has irretrievably broken down for six months or more. This is New York’s version of a “no fault divorce.” However, there is a catch. Before your no fault divorce can be granted, you and your spouse must resolve all the other issues related to your divorce.
The other issues that will need to be resolved are: (i) child custody (if applicable); (ii) child support (if applicable); (iii) Equitable Distribution; and (iv) Maintenance. Since all the other issues will need to resolved, your divorce still may take some time to resolve.
New York will still allow married couples to get divorced based on the previous grounds which are: (i) cruel and inhuman treatment; (ii) abandonment of one of the spouses by the other spouse for a period of one or more years; (iii) your spouse is in prison for 3 or more years; (iv) adultery; and (v) living pursuant to a legal separation agreement. Note that abandonment can be shown in two ways: (1) your spouse refuses to have sexual relations with you for one year or (2) your spouse leaves the marital residence (without a valid reason and without your consent) for one year. However, there seems very little reason to go forward with a divorce based on grounds.
Number 3: Extremely Unlikely That You Will Go To Trial
It is extremely unlikely that there will be a trial in your divorce. Less than 10% of divorces go to trial (although many divorces will settle on the eve of trial or on the courthouse steps).
Therefore, you and your spouse will eventually settle the case and enter into an Agreement (also called the “Stipulation of Settlement” or “divorce papers”). The Agreement is a contract between you and your spouse and it will provide for dividing the marital assets, child custody, child support, custodial time, maintenance, as well as many other items.
What often happens is that after many months of fighting, you and your spouse are in court and an Agreement is finally agreed upon. The court may ask the attorneys to put the Agreement “on the record.” This means that the attorneys will verbally state what the terms of the Agreement are. Alternatively, your attorneys may make last minute changes to a draft Agreement.
Either way, in my opinion, this is the worst thing you can do. A divorce is complicated and making changes at the last second usually leads to poorly written agreements. Therefore, your attorney should make sure that you are protected and that before you enter into any “last minute” agreements, that the entire agreement has been carefully reviewed.
Number 4: Equitable Distribution/Property Division
Equitable Distribution means that the marital assets will be divided between the spouses. This does not necessarily mean that each person gets 50% of the marital assets. There are many factors to be considered, one of which is determining if an asset is to be considered a marital asset in the first place.
What is a marital asset? All property and assets acquired between the date of the marriage and before the execution of a separation agreement or the commencement of a matrimonial action. If the property was acquired while you were married, it doesn’t matter the form in which title is held. Thus, if you buy a house after you are married, and the deed is in only one spouse’s name, it is still a marital asset. Likewise, just because your spouse owns the car she drives and always drives it, if the car was bought after the marriage started, the car is a marital asset, and you probably own one-half of the car.
What is not considered a marital asset? Property that was acquired prior to the marriage and the following items (even if they were acquired during the marriage): property received as a gift, an inheritance, or a personal injury award. However, your separate property can be converted to a marital asset if you put it in a joint savings or checking account.
Equitable distribution is a complex area. If you or your spouse have assets which you believe should be classified as a marital asset, it is highly recommended that you seek the advice of an attorney.
Number 5: Maintenance (alimony)
Maintenance (formerly known as alimony). The purpose of maintenance is to give a spouse, after the divorce, economic independence. Maintenance should continue only so long as it is necessary to allow that spouse to become self-supporting.
The Courts are required to consider many factors in determining whether or not there will be maintenance. Some of them are:
- If one spouse was not working and can not become self-supporting, there may be an award of maintenance;
- If there is a great disparity of income and/or property between the parties, there may be an award of maintenance;
- The duration of the marriage; and
- The age and health of the spouses
The new divorce law makes it easier to get maintenance before you are actually divorced. This is called pendente lite (temporary) maintenance. There is a complicated formula for computing pendente lite maintenance, however, the court can deviate from this formula. The formula is not used to compute maintenance for the period of time after the divorce is granted.
Numbers 6, 7, and 8: Child Custody, Child Support, and Visitation
A. Child Custody:
There are three basic types of child custody: (1) Sole Custody; (2) Joint Legal Custody; and (3) Joint Legal and Residential Custody.
Sole Custody means that one parent has sole decision-making power for all decisions concerning the child. That parent does not have to consult with the other parent on these decisions.
Joint Legal Custody means that both parents share decision-making power. Typically, each parent is supposed to consult with each other about all important decisions concerning the child. One parent will have residential custody, which means that they have the children living with them most of the time and the other parent gets visitation (also known as custodial or parenting time).
The parent who has residential custody will be referred to as the Custodial Parent or sometimes the Residential Parent. Usually when someone says that they have “Joint Custody”, this is the type of Joint Custody they have. If there is a conflict between the parents, then almost invariably the Custodial Parent’s viewpoint will prevail. This is why it is very important to have a very clear and explicit Agreement to detail who will make the decisions and how conflicts between the parents will be decided.
Joint Legal and Residential Custody is where the parents share decision-making power and in addition, they have close to 50% of the physical time with the children. Neither parent would be deemed the “Custodial Parent.” In practice, Joint Legal and Residential Custody is extremely rare.
B. Child Support:
If one parent has sole custody or is the Custodial Parent, then the other parent will be required to pay child support. The amount you pay in child support is computed starting with your gross income. If you are a W-2 employee, you only get very limited deductions, they include, alimony paid to any former spouse, alimony paid to this spouse, child support paid to children from a previous marriage. You also get to deduct the amount you pay in Social Security Tax and Medicare (7.65%). Once you make this deduction, your income is called the CSSA Amount (Child Support Standards Act). If you have one child, you pay 17% of the CSSA Amount, two children, you pay 25%, three children, 29%, four children, 31%, five or more children, at least 35%.
Unless you have Joint Legal and Residential Custody, one parent will have the kids most of the time and the other parent will get visitation (also called custodial time or parental time). You can be very creative in fashioning your custodial time. It does not have to be every other weekend.
For more information about child custody, child support, and custodial times, please read “Child Support and Child Custody Issues in a Divorce: What You Don’t Know Can Hurt You” © By David Badanes, Esq.
Number 9: Uncontested Divorce, Contested Divorce, Collaborative Divorce and Mediation
An uncontested divorce means that the parties agree to get a divorce and that they also agree on all the issues relating to the divorce. You do not need to make any court appearances. Your attorney will file the appropriate documents with the Court. Once your attorney files the documents, it will take about two to three months before you are “officially divorced.”
In mediation, the husband and wife meet with a mediator. The mediator does not represent either party, but, instead, tries to get the parties to agree on all the terms of their divorce. If the mediation is successful, then the parties can get an uncontested divorce.
A collaborative divorce means that you and your spouse agree to get a divorce. However, instead of having the attorneys “fight it out”, you and your attorney, your spouse and his/her attorney all meet to try to come to a resolution. All of the people involved in the meetings (including the attorneys) agree to work together to achieve a settlement. If the meeting is successful, then the parties can get an uncontested divorce.
A contested divorce means that the parties will be going to court and having their respective attorneys represent them.
Number 10: What really happens at Court
If you have a contested divorce, you most likely need to make at least one court appearance. When you go to court, the Judge will most likely first ask to speak with the attorneys only. The attorneys will meet in the Judge’s chambers, out of sight of you and your spouse.
When your attorney meets with the Judge, the Judge will ask for a brief overview of the important issues involved in your divorce. The Judge will probably ask the attorneys to settle the case and give his/her guidance on the issues.
You almost certainly will not get to “tell your side of the story” to the Judge. That would only really happen, if you went to trial. However, as previously stated, trials are very rare, so the Court will never hear your side of the story, at least not from you.
Going through a divorce is complicated and difficult. If you require help, please contact David P. Badanes of the Badanes Law Office.