Thoughts on Divorce in New York - 2009
The attorney’s first task in taking on a divorce case is to determine his or her client’s state of mind concerning the dissolution of their marriage. Some clients are hurt and they cannot help themselves; they are despondent and crushed, their lives are falling apart as they know it, and they are scared. Those clients have to be “built up.” They must know that the attorney is going to zealously advocate on their behalf and make sure that all of their rights are preserved. They must be assured that their life will continue as best as possible. Other clients are extremely angry. They want their attorney to be an avenging knight or an executioner that will literally chop their spouse’s head off. Zealous advocacy is a mandate for all attorneys. However, a “scorched earth” approach to divorce is always counterproductive and costly. Every issue in a divorce action does not have to be litigated. Moreover, it is not the function of our system of civil justice to extol revenge. Instead, our courts are there to make whole those who have been harmed and equitably adjudicate the dispute. The main, constant task for the attorney is to zealously advocate for his or her client while ensuring that they are ultimately seeing the bigger picture.
Some cases need to and must be litigated. An attorney should always be ready, willing and able to try a divorce case if necessary. It is the attorney who is well prepared for trial that can negotiate the best settlement for his or her client. That said, clients should first be counseled as to whether they really want to dissolve their marriage. Case in point: I met a woman years ago while representing a relative of hers. At the time, she was head over heels in love with a man. They got married and had a child. Two years later, she called and said she wanted to see me. She said that she wanted to get divorced. Her husband had been unfaithful. Everyone has their own take on that kind of thing, and can decide for themselves whether they will ever trust their spouse again. I did not sense that was the case here.
We discussed how all people make mistakes. Each and every one of us has let another down, just the same as others have let us down. In her particular case, the solution might not be to rush into divorce, but instead, to flesh out what happened in this particular instance. Marriage counseling is something that she should first consider before initiating an action for a divorce. It’s important to note that in speaking with her, it was clear that it was her family, more than her, who was advocating for divorce. She agreed, and went to a marriage counselor with her husband. That was over eight years ago, and they are still married today. We regularly receive a Christmas card from the family. Today, I am as proud of that consultation as any divorce trial that I have ever won.
All relationships have a life span. Some last a lifetime, others just one evening. In either case, life must go on, especially if the parties have children. Parents must let the children know that the divorce is not about them, although it will certain impact on their lives. Neither parent should ever speak badly about the other in the presence of the children. Doing otherwise will surely have a negative affect on the children. The divorce attorney is always charged with getting his or her client to consider the best interests of the children. Divorce matters are very personal. People are hurt and often angry. It is important and appropriate to try to diffuse that anger and get the client to understand that the divorce process.
The courts are not here to extol revenge. That is particularly frowned upon in matrimonial matters. What the courts do is dissolve the marriage. If the parties will not consider and cannot decide what is in the best interest of his or her child, the court will. In the same vain, if the parties cannot decide an “equitable” distribution of their marital property, the court will make that decision in a manner that is judicious, as best as possible, treating each case as unique and giving each case the same amount of deference that all other cases are given under the law.
The party that has custody of the children when the case first begins must put the best interests of the children above all else. Neither party should ever speak badly about their spouse in front of the children. The parties must reassure that child that the divorce is not going to require them to choose one parent over the other. The divorce is not their fault and they will always have a father and a mother that equally loves them. Our office provides clients with a written list of “do’s and don’ts” to follow as they go through the divorce process. They are made cognizant of the fact that children almost always tell the truth. If a parent has been saying things or doing things in the presence of the children that negatively reflect on the other parent, when questioned by a judge or law guardian the children will tell the truth to the detriment of the offending parent.
Sometimes clients must be referred to a therapist. For example: A classic victim of “battered wife syndrome” needs counseling to empower her throughout the divorce process. Therapy is not required solely to help her through the litigation. Instead, this is what she needs as a person to move forward. A therapist can also be very beneficial by making the client stronger and enabling her to understand and actively participate in the process. Accordingly, she will be able to assist her attorney and make her own decisions. Other times, it may be drug counseling or alcohol abuse counseling that the client needs. The attorney should remain open to making any appropriate referral that the client may need while utilizing a holistic approach towards completion of the divorce process.
A divorce is personal to the litigants. There is no one approach that can be used in each and every case. Some clients cannot help themselves; they cannot give you information. No spouse should “give away the store” in a divorce, but some clients just do not have any fight in them. We are not talking about “fight” just for the sake of fighting, but instead, “fight” to stand up for what is right for themselves and their children. These clients need all the help they can get.
It is not uncommon that in a domestic violence incident, the woman who calls the police for help turns against the police when by law, they must arrest the offender. On the other side of the spectrum, are those clients who are angry and really want to do harm to their spouse. Yet another scenario occurs when both spouses want to speak the attorney jointly. They have already agreed to divorce and negotiated the ancillary issues of custody, visitation, child support, maintenance and the distribution of the marital property. Here, they just want the attorney to guide them through the process. The point being that there is no one universal approach to all divorces.
Court Process
Once a case is in court, the court can and most often does appoint a “law guardian” to represent the children. This is the third attorney in the case who is there to advocate in the best interest of the children. The court can also order a “forensic evaluation” to render an opinion as to the emotional and psychological best interest of the child concerning the issues of custody or visitation.
Financial experts may also be necessary to evaluate a spouse’s business, pensions, or stock portfolio, which is a very complicated process. They advise the attorney and the client, and also appear in court if needed to offer their professional opinions as evidence. New York has a distinction of being the only state that recognizes the future enhanced earning capacity of a spouse as marital property, if the degree, certification or license that will provide those enhanced earnings was received during the marriage. Marital property in New York consists not just of tangible items, but can also include intangible items. For example: A spouse decides to go to law school and has the husband or wife support them by caring for the children and maintaining the household. He or she then obtains a law degree, passes the bar exam and starts a successful private practice, all of which occurs during the marriage. Afterwards, they request a divorce. The degree and license obtained during the marriage, and the “enhanced earnings capacity” they afford, are considered marital property under New York law. In this scenario, the spouse that maintained the household can request a portion of the other’s future earnings as an attorney. New York law holds that this is equitable, because one spouse supported the other and allowed them the opportunity to obtain the degree and license that enhances their earning capacity.
Child support in New York is by statute. Under the Child Support Standards Act (“CSSA”), New York does not automatically take into account “parenting time” unlike some other jurisdictions. For example: New Jersey will consider the actual amount of time the children are with each parent and automatically factor that time in a child support order. New York simply defines the custodial parent and the non-custodial parent. The custodial parent then receives a percentage of the non-custodial parent’s gross income minus his or her allowable deductions for the basic support and shelter of the children. Those percentages under the CSSA are presumed to be sufficient for one child (17%), two children (25%), three children (29%) and four children (35%). Above four children the court has discretion.
The parties can agree to deviate from the guidelines. However, the agreement must first state what amount of child support the guidelines require and the reason for the deviation. “Child support” in New York it is not solely based on the income of the non-custodial parent, but also what income the non-custodial may be capable of earning. For example: An attorney, in private practice goes through a bitter divorce. His wife gets custody of the children and he feels that he is paying too much for child support. He then decides that he will no longer practice law but instead drive a taxi so that his income will be lower and also his child support obligation. New York would not allow a reduction in his child support obligation. His “earning capacity” remains that of an attorney. The only reason he is driving a taxi is to avoid paying child support.
In an action for a divorce under New York law, the parties are required to file a “statement of net worth.” This is a sworn statement of their individual income, expenses, assets and liabilities. Once those figures are computed, a positive or negative statement of net worth will be determined. The statement of net worth is an aid the court utilizes in trying to determine what might constitute an equitable distribution of the marital property. “Equitable” does not mean equal. It means “fair.” There is a presumption in the law that a “50-50” division of the marital property is fair. Of course, other factors may rebut that presumption. Sometimes, another percentage division of the marital property may be “equitable.” The statements of net worth give the court some barometer of what may be equitable. For example: If one side has $100K in net worth and the other side $50K in net worth, in theory, the court could move $25K to the spouse with the smaller net worth, absent any other considerations. If the parties are in family court dealing with issues of child support and/or spousal support, a similar although more streamlined document called a “Financial Disclosure Affidavit” is used.
Grounds for Divorce & Documentation
In general, to begin a divorce proceeding in New York you must file a “Summons with Notice” or a “Summons and a Verified Complaint.” Documentation concerning the parties’ individual finances may be required later. Because New York is a “fault” state, a spouse needs legal grounds to divorce. In New York, legal grounds in an action for a divorce are as follows:
(1) Adultery is still a crime in the state of New York. The courts frown upon its sole use as the grounds for divorce. This is because if the court finds adultery has occurred it is finding that a crime has been committed. Nevertheless, no one has been prosecuted for adultery in New York State since anyone can remember.
(2) Cruel and inhuman treatment consist of specific acts of mental, verbal or physical abuse that rise to a level where it is improper and unsafe for the parties to cohabit together. The acts of complained of cannot go back further than (5) years from the date the action for a divorce is filed, unless they are part and parcel of a pattern of behavior indicative of a cruel and inhuman course of conduct. In New York, a marriage of less than (10) years is considered a short-term marriage. Above (10) years, we begin to consider the marriage to be long-term. If you have a short-term marriage and you are getting a divorce on grounds of cruel and inhuman treatment, some physical altercation with other acts of mental or verbal abuse will suffice as cruel and inhuman treatment.
If it is a longer-term marriage, the court is going to want more proof of cruel and inhuman treatment. The case law in New York says that parties to a marriage take a vow to remain married “for better or worse.” If, in a long term marriage, the behavior complained of is just “worse”, then that is not enough to get divorced. The behavior complained of must rise to the level where it is improper and unsafe for the parties to cohabit together.
(3) Actual abandonment is where one spouse actually leaves a marital residence. The other spouse has not provoked it or condoned the departure and wants the other him or her to come back home. The departing spouse refuses and stays away for a year. After a year, the remaining spouse can file for a divorce on the grounds of actual abandonment.
(4) Constructive abandonment occurs when one of the spouses is no longer behaving like a spouse towards the other. For instance: He or she refuses to be sexually intimate with their spouse. There is no reason why they cannot be intimate, they are both physically capable and the first spouse request to be intimate but the other spouse refuses. If that continues for a year, there are grounds for divorce based on constructive abandonment.
(5) Absent those four grounds for divorce, the only other way to get divorced in New York is to execute a separation agreement which conforms to the requirements of New York law. The parties must then substantially abide by that agreement and live apart for a year. Afterwards they can take that agreement and convert it into a judgment of divorce. New York calls that a conversion divorce.
These are the only legal grounds for a divorce in New York. If the defendant spouse consents to the divorce, he or she would sign an “affidavit of defendant” wherein they essentially say under oath: “I received the complaint for divorce. I neither admit nor deny the allegations. I consent to the divorce. Send me a copy of the judgment of divorce.” Afterwards, there are final papers that have to be prepared and filed with the court. The attorney prepares the judgment of divorce and the judge signs off on it approximately six weeks after the final divorce package is submitted to the court. The final divorce papers include the “findings of facts and conclusions of law” and other ancillary documents that need to be prepared like a “certificate of dissolution of marriage” for filing with the state.
A divorce case becomes “contested” when a “summons and complaint” is prepared and the defendant serves an “answer.” Once that answer is served, often with a counterclaim for divorce, “issue is joined” under law and the matter is categorized as a “contested divorce.” After issue is joined, the parties have (45) days to reach an agreement. If they wish for additional time to negotiate, they must file a “notice of necessity” which will give them another (120) days to reach an agreement. If the matter is not resolved after the (120) day extension, a “request for judicial intervention” must be filed and the case is placed on the court’s calendar. The summons and complaint does not automatically put the parties in court. It just starts the action for a divorce.
When the parties first appear in court a “preliminary conference” is held. Here the court tries to narrow the issues in the divorce. For example: The court wants to know if the parties have an agreement concerning custody and visitation, maintenance and/or the equitable distribution of property. An inquiry is also made to determine if there are any other outstanding issues in the action for a divorce. The court will also consider and possibly issue any interim orders that have been applied for which it believes are appropriate. The court will also set a schedule for the “discovery process” to proceed, during which the parties to exchange documents, investigate facts and circumstances as warranted and in general prepare themselves for trial.
Attorneys generally prepare all of the documents required in a divorce. However, anyone can go to the courts and pick up an “uncontested divorce package” to file for divorce “pro se.” The process is not that difficult if the parties do not have children or property. If there are children and significant property, an action for a divorce can get very complicated. It can also get more complicated once the parties are made aware of their rights and responsibilities regarding a divorce. In these instances, there is no substitute for being represented by competent counsel.
The court fees are assessed with the filing of an action for a divorce in New York. Those fees begin with the purchase an index number when the summons with notice or summons and verified complaint is filed with the clerk of the court. That fee is $210.00. Once an index number has been purchased from the court, it is placed on the summons and/or complaint and the documents are ready to be legally served on the other spouse. After the summons and/or complaint have been legally served, the matter may proceed as either an uncontested or a contested divorce. If it is contested and must be placed on the court calendar, the fee to file a “request for judicial intervention” is $90. Anytime a party files “motion” with the court requesting any kind of relief, a $45 court fee must be paid. Of course, represented parties also pay attorney’s fees.
It is essential for the attorney to control an action for a divorce. The attorney should seek to negotiate a resolution from a negotiating position of strength and control. For example: A spouse says she has been at a stay-at-home mom. The parties own stocks and have a large annual income, as well as other investments and properties. However, everything is under the complete control of her husband. She has no income of her own. Because of the acrimony between the parties, her husband wants her out of the marital residence. The wife has a real concern about the dissipation of marital assets and that her husband will financially cut her completely off while she is not in a position to support herself. This is a case where the attorney should initiate the action for a divorce by immediately placing the case on the court calendar and requesting interim relief for the wife, as well restraining orders that prevent the dissipation of marital assets.
Why? First, a restraining order from the court will prevent the transfer or the encumbrance of marital assets. Second, interim orders of spousal and child support will stabilize the financial status of the wife. This will assure that she has a place to live and care for the children if they remain in her care. Once the attorney has control of the finances and has stabilized the living conditions for the wife, he can now attempt to negotiate a settlement from a position of strength. It is important to note that under New York law, the “monied” spouse can be made to pay the attorney fees of the “non-monied” spouse throughout the pendency of the divorce, subject to reallocation of those funds at the conclusion of the proceeding or at the end of trial. This places a strong incentive on the monied spouse to negotiate a fair settlement as quickly as possible.
It is one thing to have a judgment in ones favor. It is another thing to collect on that judgment. For this reason, the divorce attorney wants to be in a position to control the parties’ finances throughout the proceeding. The goal in divorce remains to get the parties to resolve the case on their own whenever possible. Nevertheless, the attorney should take control of the financial situation and allow the client to make the necessary decisions. Sometimes, the parties are able to sale through the divorce process. They should always be encouraged to be fair and reasonable with each other, as well as themselves.
Cooperating Parties & Uncontested Divorce Actions
Mediation is an option for some clients. It is first necessary to determine whether the clients and the action for a divorce itself are right for mediation. The first barometer for mediation is whether the parties can talk to one another. Are the lines of communication open? Can they be fair with one another? Unfortunately, often there is absolutely no communication between the parties. They are hurt or angry. Sometimes, one spouse has obtained an order of protection against the other which prevents them from speaking. Where the parties can communicate and the divorce is amicable, there are several “mediation” options available in New York.
An attorney who takes on the role of a mediator cannot represent either client in any subsequent litigation. The attorney would mediate the divorce and resolve all the issues therein. Once the issues are resolved, the attorney/mediator would only prepare a “memorandum of understanding.” The couple must then go to another neutral attorney who will prepare the actual “stipulation of settlement” or “separation agreement.” The mediator should not prepare the final agreement because it could open the agreement to attack in the future, by one spouse arguing that the “mediator” was in fact favored the other in the drafting of the final document.
New York has also recently begun to use the “collaborative law” model in actions for a divorce. Here, there is a mediator but the spouses are also represented by attorneys. The attorneys representing the individual spouses sign an agreement wherein they agree that if mediation fails, neither one of those attorneys will represent the spouses in any litigation concerning the divorce. This is viewed as an incentive to the attorneys and the spouses to negotiate fairly and resolve the matter without litigation because the attorneys are barred from litigating the case and earning additional legal fees.
Yet another mediation scenario may be as follows: A client says that the parties have a house and a child. They have agreed that he will have custody and she will pay child support. He will stay in the marital residence until their child is (18) years old. The divorce is amicable and the parties only want assistance in formalizing their agreement and getting a judgment of divorce. In that situation, an attorney should only represent the spouse that first contacted his or her or office. The attorney will prepare a settlement agreement based solely on his or her client’s representations of the parties’ agreement. If they are being completely forthright with their spouse, the document prepared will contain no surprises. The agreement will specify that unrepresented spouse is strongly encouraged to consult with an independent attorney before signing the agreement. In this situation, an attorney could represent one party and prepare the agreement and the other spouse would only incur the cost of a consultation with an independent attorney to review that agreement. It minimizes the amount of money the divorce will cost the parties. Here the attorney is in fact acting as a mediator but never meets with both of the parties at the same time. It should be noted that the preferred scenario is where both parties are represented by independent counsel and negotiate a fair and reasonable settlement.
Clients need to understand that their marriage and the settlement of their marriage is within their control. Anything can happen in litigation. Judges will often tell the parties in court that he or she is not the best qualified person to decide who should have custody of the children or how the marital property should be divided. If the parties cannot resolve their own divorce, then judges are empowered by the law to do so. They will hear the facts in light of the rules of evidence and our system of civil justice. The “truth” is just as often obscured in our adversarial system, as it is revealed. Litigation is always a gamble to some degree.
Presumably, two adults, who have made the decision to get married have children and buy property, have the wherewithal to negotiate their divorce with some assistance and guidance. If they can get past the anger and the hurt of a divorce, then two adults should be able to resolve their divorce.
In reality, (1) percent of divorce cases go to trial; (99) percent of the cases are resolved before actual trial. Even if there has been litigation through motion practice, at some point the case settles. If the parties can achieve a fair settlement, with neither one of them not “giving away the store”, they have done the right thing.
Parties to a divorce always want the matter resolved expeditiously. That is appropriate. But doing the right thing should never give way to expediency. A spouse who wishes to litigate a case infinitum to the detriment of the other spouse, does not see the harm in that course of action for his or herself. Ultimately, they deplete their own share of the marital assets through litigation, while seeking to hurt their spouse. Attorneys should prevent this wherever possible. Here, the words of Abraham Lincoln serve us well:
“Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket?” July 1, 1850
