Divorce advice and tips from a Divorce Attorney
Good divorce advice can make all the difference in your divorce. I am a divorce attorney who would like to offer you some unsolicited advice. This is not legal advice however because unless you have a retainer agreement with me, I am not your attorney. So please hire an attorney if you are seriously thinking about divorce. The divorce advice I will dispense is really just general advice, although there are always exceptions to every general rule.
Around this time of year a lot of folks typically seek a divorce and naturally they will need divorce advice. It is not clear why so many people want to get divorced at this time of year, is but nevertheless if you are one of these people, the more informed you are, the better the outcome will be for you.
Here are ten tips for those of you who are seeking a divorce in New York and want some divorce advice:
1) If your divorce is uncontested, that means that your spouse and you have already decided and agreed to all the terms of the divorce. You may just need a lawyer to draft the papers up, or you may even do it yourself. An uncontested divorce in New York can cost as little as $335 if you do it yourself. That figure includes $210 for an index number and $125 for a note of issue – court fees. If you hire an attorney, then you would have to pay the additional attorney’s fee. Each attorney charges a different fee for their services. So you should probably shop around. Of course, as with anything else, caveat emptor.
2. If you have children who are under 21 years of age, you are going to have to provide for their support in your papers. Even if the divorce is uncontested the New York Child Support Standards Act provides the standard for support. So, for example, the non-custodial parent would pay a percentage of his/her adjusted gross income and that percentage increases with the number of kids. The minimum is 17% for one child. If you have a contested matter, and income above $80,000, then you are looking at a more complicated situation that would probably require legal counsel. People of high net worth may want to negotiate other things, other than just what the Child Support Standards Act provides for. The CSSA provides the minimum. But the court really looks at the marital standard of living in deciding what a child(ren) will receive from the non-custodial parent. And, of course, who will get custody is often a huge bone of contention. Custody battles are notoriously acrimonious, particularly among the affluent who can afford to keep the fight going. But is this good for the kids? We don’t think so.
3. There is no longer a presumption that the mother is the going to get custody of the children. The Father’s Rights Movement is in full swing and many fathers are now fighting for custody of their kids – and they are winning. This is true even for infant children who were typically seen as “better off with their mother.” New York no longer follows the presumption that children of a “tender age” are better off with mom. It’s about who is the most fit parent. Sometimes, that comes down to money. Because if one parent has a more child-centric home that results from having more money, then that parent may very well get custody if they fight for it. It really comes down to who is the best care-giver of the child. That is sometiems established by speaking with the child – if the child is of an appropriate age that facilitates inquiries from court appointed professionals and law guardians. It is always best to be on the good side of the law guardian. Never try to bribe one, but don’t get on their bad side either. Sometimes your custody or loss of it can come down to somebody’s power trip.
4. New York is an equitable distribution state. That means that when you get a divorce, you are going to receive what the court perceives as “fair” in a settlement if the two of you can’t reach an agreement. It is always better to try to reach an agreement and not have the court determine the outcome of your marriage. But too often, couples can’t put aside their anger and differences to work this out. Keep in mind that “fair” is not necessarily “half.”
5) A prenup is only enforceable if it was properly executed at the time it was entered into. So that means that it should be signed, notarized and acknowledged. Both parties should have had the capacity to understand the contract and to enter into it. There should not have been too short a time between signing the prenup and the actual wedding because that could appear to be “duress.” The terms of the prenup should be reasonable and not eggregiously lopsided.
6) Marital gifts between spouses such as jewelry belong to the two of you if you get a divorce. Sometimes, depending on the price of your engagement ring, your engagement ring could also conceivably be a marital asset (normally the engagement ring is yours to keep but if the value is enormous, it may not be). However, gifts your receive from others are not marital assets unless it was commingled with the marital estate.
7) What you inherit (inheritances) are not on the table during your divorce unless, again, you commingled it during the marriage.
8. Pensions, IRAs, bonuses, 401Ks, and other retirement compensation, though deferred, are a part of the marital estate and would also be subject to equitable distribution no matter which spouse earned it. As a general rule, anything earned during the marriage is a marital asset and if there is no prenup that stipulates otherwise, both spouses will share in the value of all marital assets upon divorce.
9. Education degrees such as Masters Degrees, Law and Medical degrees, and professional licenses that are earned during the marriage could be considered marital assets depending on which state you live in. In New York, the law has changed with respect to this issue. The value of these assets is “appraised” and this value is subject to equitable distribution.
10. Many people ask, “how long does a divorce take?” There is no one answer to that question. An uncontested divorce on consent where there are no children could take as little as 8 weeks to get a judgment of divorce. Some contested divorces have taken years to resolve. It really just depends on the case, the parties, the court and the issues. Plus, it is never really over till it’s over. Because even after a divorce judgment is signed, parties can come back in “post divorce” to re-litigate certain matters if new information is discovered after the divorce judgment is signed.
Speaking of divorce advice, click to read What is the Real Price of Divorce