If things are looking grim, if the D (divorce) Word Has Been Spoken…
You Need Answers Right Away
Do I need a lawyer?
You should at least consult a lawyer. If your spouse has a lawyer, then you’re crazy not to get one. If there are children, or assets to divide, or you want financial support-get a lawyer. If you can’t afford one, but your spouse has money, then ask the Court to have the “monied spouse” pay your attorney’s fees.
Lawyers can be expensive. Hourly fees for matrimonial attorneys in New York City can run from $200 – $600/hr. Paying your attorney (lawyer) can be expensive. Most lawyers charge by the hour, plus out-of-pocket expenses, and most ask for a “Retainer” (down payment) up front.
In matrimonial litigation, unlike most types of litigation, if one “party” (spouse) has a lot of money, and the other party has very little or none, then often the “monied spouse” can be forced by the Judge to pay part or all of the attorney’s fees of the “non-monied spouse. The idea is to “level the playing field” and have the issues decided on their merits, not who has more money to pay their lawyer. This is often very upsetting for the payor, and can become very expensive. Generally, when there is money to pay these fees early on, it means that eventually there will be property to distribute, so that that early award of attorney’s fees can be seen as a down payment on the eventual property distribution. In legalese, the award of attorney’s fees can be “reallocated at trial,” which means that a Judge can change or re-distribute the early awards at the end of the case.
Are there any laws here, or does the Judge do pretty much what he or she wants?
THE RELEVANT LAWS (“STATUTES”)
Judges have a lot of power (leeway, discretion) in matrimonial cases; there are no juries on issues of money and children, and since you generally have the same Judge from beginning to end. But there are laws, and there is a history of decided cases which shape what happens in your case.
Divorce, and all the issues around it, are covered in NYS by the “Domestic Relations Law” (“DRL”), which has various sections, and is available in most libraries. This is the law that generally governs when you are in “Supreme Court.”
Issues of custody, paternity, child support, spousal support, domestic abuse, etc. are also covered by the “Family Court Act” (“FCA”) which applies when you go to “Family Court,” and is also available in most libraries. You can’t get a divorce in Family Court, and therefore you can’t divide up property.
Eventually, in order to get a Divorce “Judgment” (meaning the “Judge” has decided that you are formally and legally no longer married) the Supreme Court has to accept your divorce “papers”; but each case gets to that point by a different route.
How do we divide up the house?
The joint bank account?
The family business?
Can I keep my inheritance?
Do I share in my spouse’s Ph.D.?
Do I have to pay money my spouse money because I got a broker’s license?
DISTRIBUTION OF PROPERTY: EQUITABLE DISTRIBUTION
“EQUITABLE DISTRIBUTION” (dividing the marital assets/property)
The DRL says that when a couple gets divorced, their marital property must be divided “equitably” (fairly), but that doesn’t always mean equally. The first thing to remember is that property can only be permanently divided when there is a divorce; Family Court can not divide property because it can’t grant a divorce. Motions in Supreme Court for child support, exclusive occupancy of the marital home, etc., can not divide property if there is no divorce.
There are various parts to this idea of “equitable distribution” (“e.d.”). First, you argue about which property is “marital,” because “separate property” doesn’t get divided. Then you argue about the value of each item of marital property (valuation). Finally, you argue about how to divide that value “equitably” (fairly).
Anything of value (“asset”) that either of you has acquired during the marriage, with some exceptions. It may not matter who the legal owner (“title owner”) is. The house, the car, the bank account, the stocks, the furniture, etc.; but not the inheritance you received during the marriage, not the personal injury award you won for pain and suffering, etc. Also the “appreciation” of property that you had before the marriage, is “marital property.” Just the fact that something is “marital property” doesn’t necessarily mean that it will be split 50/50; that’s just the first step.
Property that isn’t marital, is separate. Assets you had before the marriage, and kept separate, for instance, is separate property. Your inheritance from your father, for example, if you kept it separate, is your separate property and your spouse does not get any of the principal; the appreciation might be a different story.
“Valuation” (of marital property)
The dollar value of an asset. This is easy when you’re talking about “cash,” or stocks; less easy with “real estate” or a “co-op” or “condominium.” But it sometimes gets very complicated when you’re trying to “value” a pension, or academic degree, or small business, or stock option, or legal right, etc.
“Distribution” (of marital property)
At some point, the marital property or its dollar value, will have to be distributed between both of you; and again, depending on the circumstances, it may be 50/50, or it may be 70/30, or the distribution may be 90/10.
Debt that was taken on by either or both spouses, for the everyday living of either spouse, or the child. Both parties are responsible for marital debt; it will have to be shared in some proportion, which the Judge will decide. Debts taken on before the marriage (a student loan, car loan, credit card balance, mortgage, etc.) will generally not be considered marital debt, and will be the sole responsibility of the spouse who took them on.
SOME TERMS TO REMEMBER:
“Fair market value” (FMV) – a financial term, which refers to how much a property would sell for in the open market. This term has many technical aspects, but it is used to value property instead of trying to actually sell it.
Personal property – in a strict sense, property that is not real estate. Generally, in a matrimonial case, it is used to mean property like clothing, jewelry, objects owned before the marriage, etc., that are particular to one spouse or the other, or have special meaning for one spouse or the other.
Property – something that you own, or have rights to. It can be “tangible,” something you can touch: cash, stocks, a house, a car, a book, a dress, a suit, a business, a painting; or it can be “intangible” such as a stock option, an insurance policy, goodwill in a business, a professional license, a pending lawsuit for personal injuries, etc.
Liquid Assets – cash, or other assets (publicly traded stock, etc.) that can be immediately converted into cash.
Real property – generally land, a private house, a building.
QDRO (Qualified Domestic Relations Order) – a document that divides up pension benefits, usually in the future, and written to financial institutions. This is a very specialized and technical document, usually drawn up by a specialist.
Transfer of title – when the legal “ownership” passes from one person to another.
Vesting – when you first have actual, present right to something or ownership of something; as opposed to some right or ownership you might have in the future.
I stopped working as soon as we had children-how will I support myself?
Do I have to support that (!#*$!) forever?
I need training-who pays for that?
That (!#*$!) walked out right after the promotion-can they do that?
MAINTENANCE (financial spousal support, alimony)
This refers to money that one spouse pays another temporarily (“pendente lite”, pending the litigation) and/or for some period of time after the divorce. Usually the payments are regular (monthly, weekly) and are tax deductible to the person paying, and taxable to the person receiving. Generally, the reason for maintenance today in NYS is to give the “non-monied spouse” a chance to “rehabilitate” themselves and become self-supporting. It’s rare that maintenance will be for a person’s lifetime, but it does happen. Generally, the longer the marriage, the longer the maintenance if it is granted. Generally, maintenance ends when the receiving person remarries; or “cohabits” with someone for a certain period of time. Sometimes it’s hard to tell what “cohabitation” is; and there can be “post-judgment” (post divorce) litigation on this question.
Temporary (“interim”) maintenance-spousal support ordered at the start or early stage of a litigation, to help the non-monied spouse live, until the Judge makes a final decision. Many factors affect this award: what are the reasonable needs of the non-monied spouse, what are the financial resources of the monied spouse, what was the marital standard of living before the separation or litigation, etc.
How much will I get every month?
Who pays for private school?
Does Lotto winner count as “income”?
If I lose my job will I still have to pay the same?
Our children need braces and the insurance doesn’t cover it-who pays?
“CHILD SUPPORT” (“basic child support” and “add-ons”)
The law here is called the “Child Support Standards Act” (“CSSA). It tries to standardize the regular, weekly or monthly amount that the paying parent (‘payor spouse”) pays to the receiving parent (“payee spouse”). The “non-custodial” parent is generally the payor. The basic child support is calculated on a percentage of the parties’ gross incomes (minus some deductions); 17% for one child, 25% for two children, etc. Sometimes it’s difficult to decide what is “income” if the spouse is not a W-2 wage earner.
This money is supposed to cover the payor’s contribution to the child’s food, clothing, housing costs, etc.
In addition, there are all the other expenses, the “add-ons”: unreimbursed health care, after-school programs, camps, etc. etc. These are usually paid in some proportion (“pro-rata”) that relates the parents relative incomes. If the payor, non-custodial spouse earning $100,000 per year, and the payee, custodial spouse earns $50,000, then the payor spouse is likely to pay 2/3 of the add-on expenses.
SOME TERMS TO REMEMBER:
Life Insurance – very often, a parent who has child support, maintenance, or other financial obligations, will have to buy Life Insurance to guarantee their payments in case they die.
“Support Collection Unit” (SCU) – a State agency that can be used to collect child support or maintenance payments directly, when there has been a problem with regular payment. Unless the parties agree, it takes a Court Order to force the payor to pay directly to the SCU. A Judge can order an employer to deduct a support payment from an employee’s paycheck and send it to SCU directly; this is obviously a powerful tool for enforcement.
Temporary (“interim”) child support – child support ordered at the start or early stage of a litigation, until the Judge hears more about the case and makes a longer lasting decision. “Temporary” can be several years.
I’m the better parent-the other one’s abusive-do my kids have to visit?
How do we decide which school our children will attend?
Do I have to call before I buy a pair of pants?
I’m worried that my spouse is trying to brainwash my kids against me-what can I do?
I want Christmas with the children-can I trade for July 4?
CUSTODY (child custody)
A. “Physical custody,” “de facto custody,” “parenting schedule”
That is, when the child or children will be with one parent, and when with the other parent. Generally, the parent with physical custody of a child will have the decision-making authority over routine matters during that time. Generally, that parent can make decisions in case of an emergency.
Usually there is one parent with “primary custody,” the “custodial parent,” (where the child spends most of their time, the “home base”) and the other, “non-custodial parent,” where the child spends a smaller proportion of the time, but some Judges are trying to use less loaded words, like “parenting time.” The time a “non-custodial parent” spends with their child is called “visitation,” but that’s not a very good word to describe the parent-child time together; it’s hardly “visiting.” Usually parents will work out some sort of schedule for the child; when he/she is with one parent, when with the other. This can get complicated, but it’s important to work out in advance, even if parents can be flexible later on. Generally such schedules save time and angst later on, even if sometimes they are ignored by the parents.
B. “Legal custody” “de jure custody,” “decision-making.”
Who makes which decisions? Does one parent have “sole custody,”-they make the major decisions about the child’s education, health care, associations, religion, etc., after consulting with the other parent? Is their “joint custody”-both parents must agree on major decisions? Are there “spheres” of parental decision: the father makes the decision about health care, and the mother decides which school, or vice versa?
Where both parents make major decisions “jointly.” NYS does not have a statutory preference for joint custody, but many states do. If the parents are fighting, NY Courts will generally not award joint custody, because the Judge won’t have confidence the parents can collaborate in the future if they can’t now.
SOME TERMS TO REMEMBER:
Emancipation – when a child is no longer entitled to financial support from his/her parents, when a child is no longer subject to the authority of his/her parents. In New York State, when a child reaches 18, he/she is no longer subject to the authority of the Court or their parents as a minor, but any good Separation Agreement will provide child support until some specified “emancipation event”; a child finishes college, joins the military, becomes self-supporting, etc.
Law Guardian – a lawyer appointed by the Court to represent a child or children in a custody dispute. This lawyer is either paid by the parties (parents), usually in some proportion to the parties’ incomes, or if the parents have no money, then sometimes the Court will appoint a lawyer who is paid by the State. This lawyer can be very influential in the Judge’s decision. The Law Guardian is generally supposed to advocate the expressed wishes of the child(ren), in contrast to a “Guardian Ad Litem,” a lawyer appointed to represent a child who can’t fairly articulate what they want (isn’t “competent”).
Order of Protection – a command by a Judge in Supreme or Family Court, that one parent (or other person) should stay away from a parent and/or child. This Order is normally issued in any situation of domestic violence, and it will have detailed instructions to the person against whom it is directed. This Court Order is, of course, no guarantee against any further violence, but it very useful to deter most people. It’s fairly easy to get a temporary Order quickly, especially in Family Court, in an emergency situation. You don’t need a lawyer in Family Court; it’s much harder to operate in Supreme Court without a lawyer.
Relocation – when one parent moves or wants to move. This becomes a custodial issue when the “custodial” parent wants to move away with a child; often far away, often out-of-state; and the move would disrupt the parenting schedule now in place. If the “non-custodial” parent objects, there is an issue for the Court. This often comes up after a couple is divorced. The Judge should permit this relocation based on what’s best for the child. If the status quo is “working” for the child, it is hard to win the right to relocate. This is almost always decided only after a “hearing” or mini-trial. Sometimes of course, a parent will simply take a child and move to another state, or even another country, without the other parent’s consent or the Court’s permission, and then a very messy litigation can develop.
Visitation – a custodial right, granted to biological parents and in some cases grandparents and siblings. Also, the right of a child to a meaningful relationship with his/her parents. The word is misleading: the time children spend with a “non-custodial” parent is obviously more meaningful and important than “visiting.”
“Uniform Child Custody Jurisdiction Act” (UCCJA) – a law that tries to make custody battles more uniform between different states in the USA.
Do we need lawyers?
Does mediation work?
Is it quicker?
ALTERNATIVES TO LITIGATION
Sometimes there are useful alternatives to traditional “litigation” (each side hires a lawyer to battle it out on their clients’ behalf.). These alternative approaches seem to start out in California and slowly migrate to New York. Generally the parties agree in advance not to use what is said in these approaches in litigation in the future, and they generally agree not to call a neutral third party as a witness later on. Arbitration, mediation, collaborative law.
Some people voluntarily submit their dispute to a neutral person (“third party”), for a binding decisions. This can happen during a litigation or after the divorce, where the parties agree in advance that they will submit certain disputes to some form of neutral decision-maker. This can be through a private organization which resolves disputes (American Arbitration Association, etc.), or the parties can agree on one individual who both trust, and that individual decides if the parties can’t agree.
This is a voluntary process, when both parties (spouses, people, parents) meet with a neutral person to try and work out their differences together. It is a collaborative approach and fits some couples better than litigation. If it doesn’t succeed, then the parties are free (or forced) to go the more traditional litigation route. People who work as mediators are usually lawyers, but sometimes they are social workers or other professionals. Some matrimonial attorneys dislike mediation; they fear that the more dominant spouse will overpower the mediator and dominant the more timid spouse. They fear that some mediators may not know the court system and possible outcomes if the parties do choose litigation. But some attorneys distrust mediators because they fear the loss of business, and they can’t accept the more collaborative approach in mediation. Generally, mediators will suggest or insist that draft agreements are reviewed by attorney’s for each spouse.
This is a new method, somewhere between mediation and traditional litigation. Each spouse hires a lawyer, but among other things, the lawyers agree beforehand that they will not go to Court is their clients don’t settle.
SOME COMMON LITIGATION TERMS
Affidavit – a sworn statement by either spouse, or an expert, usually as part of a motion.
Affirmation – a sworn statement by a lawyer.
CPLR (“Civil Practice Laws of Rules” of New York State) – The rules of procedure that govern matrimonial and all “civil” (non-criminal) cases in New York. They are published as a book, and available in law libraries. Generally these procedural rules can be ignored by clients, but they are important for lawyers. Some are very technical. Other types of “civil” cases are contract cases, negligence cases, civil rights lawsuits, landlord-tenant cases, etc.
Discovery (disclosure) – the time in a matrimonial action when each side learns about the finances of the other side; either by demanding written answers to questions, or the production of documents, or asking questions of the other person under oath (“examination before trial, EBT, “oral deposition”). In some parts of New York State, you are allowed to explore issues related to custody (in addition to finances) during discovery.
Dissolution – ending.
Enforcement – just what it sounds like: enforcing the terms of the Separation Agreement and/or the Judgment, usually after the divorce.
Evidence – things presented at a trial by either side to help their case. This could be verbal testimony by witnesses, documents, photographs, etc. There are many complicated rules to determine what a Judge lets into evidence (“admissible”) and what a Judge keeps out (“inadmissible”). Only when the “trier of fact” (a jury, or judge in a non-jury trial) accepts certain evidence as true, does it become a legal “fact” in that litigation. Matrimonial trials on custody and finances are “bench trials”; that is, tried without a jury only with a Judge sitting on the “bench.” In such a matrimonial trial, the Judge (as the one who decides on the law) gets to rule on which evidence is admissible; then that same Judge (as the trier of fact) gets to decide only on the admissible evidence. Get it?
Experts – individuals with special knowledge and/or experience, hired by either side to consult or write reports or testify at trial; or sometimes the Judge will appoint a neutral expert to help decide issues of custody or finances. In matrimonial cases, there can be experts to value a business or degree, evaluate parents to help decide custody, appraise real estate, etc. Experts can be very useful, but also very expensive. They are usually paid by the parties, in some proportion to their incomes.
Filing (for divorce) – submitting certain legal papers to the Court, to start a divorce lawsuit. Generally, one side files a “Summons with Notice,” or “Summons and Complaint,” and then the other side has to respond in some way.
Findings of Fact and Conclusions of Law – a form filled out by your lawyer at the end of the case, and submitted to the Court with all the other papers. The facts of your case and the legal conclusions that the Judge or Referee must accept before granting a divorce, and before issuing a Judgment, which is the final word on all the issues you have been fighting about.
Forensic – about the Courts. This refers to various experts in a matrimonial case: forensic psychologists, psychiatrists, accountants, etc.
Index Number – the number that is assigned to each case by the Court, as a means of identification. The plaintiff who files the first papers pays a fee to the Court, which is now $210. It doesn’t matter which number you get; they are assigned in the order cases are filled, starting over each year. The number technically has six numbers, and then the year the case was filed: Index No. 123456/2007 (sometimes written 123456/07).
Judgment – the final decision of the Judge at the end of the litigation, officially granting a divorce and deciding whatever other issues were “before the Court.”
Jurisdiction – this refers to the authority of any particular Court to decide a certain case. Each Court has a geographic and subject matter area of authority. The “Supreme Court” in each county in New York State generally has “jurisdiction” over matrimonial matters; sometimes “Family Court” also has some overlapping authority. There can be jurisdictional disputes over custody or enforcing payments when a parent moves out of state; which state has the right to decide a certain case? When a parent moves to another country, or takes a child out of the country, there can be even more difficult jurisdictional disputes, over which country has the right to decide a certain case.
Litigation – a lawsuit, legal action.
Pleadings – the initial round of papers which start a lawsuit: the Summons and Complaint, the Answer, Affirmative Defenses, Counter-claims, the Reply, etc. Sometimes a more detailed explanation of some claims, called a “Bill of Particulars,” is considered part of the Pleadings.
Modification – a change; such as when one parent wants to change the child support or maintenance amounts up or down after a divorce, or change the custody arrangements, because circumstances have changed and other factors are operating. If the other parent doesn’t agree, you generally have to go to Court to get the modification you want.
Motions – asking the Judge to do something or prevent something, during the litigation. Motions can be made in different forms, and can be made with written papers and/or oral argument to the Judge. The person making the motion (“movant”) has to pay a Court fee, now $45.
Note of Issue – a form that one of the lawyers has to fill out and submit to the Court, which says that a case is ready for trial. Even in an uncontested divorce, this form has to be filed before the final divorce papers can be accepted. There is now a $95 fee for this form.
Pendente lite (pen-den’-tay lee’-tay or li’-ti) – during the litigation; something requested or decided to last only until the final Judgment of divorce. Sometimes called “interim” or “temporary.”
Pro se – without a lawyer. When someone goes into a litigation without a lawyer; in Family Court it’s possible, in Supreme Court it’s crazy. If you can afford a lawyer, you should hire one, especially if your spouse already has one.
Relief – something one party wants from the Judge.
Request for Judicial Intervention – a simple form that must be filled out before the Court can do anything; the fee for this form is now $40.
Summons – the short and simple document that starts off any lawsuit. A “Summons” is a call, and gives the Defendant notice that he/she is getting sued, and should do something to avoid a default judgment against him/her.
Sworn Statement of Barriers to Remarriage – one clause that has to be in the final divorce papers, that one person won’t interfere with the other person’s getting a religious divorce.
Temporary (“interim”) Agreement – an agreement between the parties on one or more issues, to last until the Judge makes a final decision.
Uncontested divorce – a divorce that is presented to the Court where the parties have worked out all the issues in an Agreement. Sometimes there can be fierce litigation until the parties have agreed, and then the divorce is presented to the Court as “uncontested.”
Venue – the county where a litigation is proper; can you bring the case in Manhattan, or Brooklyn, or Queens, or Westchester?
Verified Complaint – the legal document which sets out in general terms, the legal basis of your lawsuit; what you’re “complaining” about. The person who starts the lawsuit is the plaintiff, and he/she “verifies” (swears to) the accuracy of the Complaint, or sometimes the lawyer does this.