A litigant or a potential litigant needs to understand when you file for a divorce in New York, it drops a barrier so that anything that is acquired after the commencement of the action may be considered the separate property of the person who acquires it. So if, for instance, you know that your spouse is about to engage in a new business deal that could be very profitable, you may want to wait until after that deal is concluded to start the action so that you have the benefit of that falling into the marital pot. But, if you believe that your spouse is about to start an action, gather as much financial information as you can to assist your attorney, and try to understand what the asset base is, how you live, what the costs of your living expenses are, and what the liabilities are.
Spouses will often try to take advantage of these systems, but organizations have begun cracking down on these. For instance, I represented a wife in a matter where her husband spent $2.5 on drugs, New York strip clubs, and prostitutes. She got copies of his American Express cards where he was charging all of these activities, so we were able to claim that he was wasting or dissipating marital assets so that she would be entitled to get a portion of it back. Record-keeping before you start the divorce action is essential.
Is There Any Benefit To Being The Person Who Files For Divorce In New York?
If you know that you’re about to engage in business activity and you want to protect it, then you would be the one to start the action. In New York, when it gets to discovery, it is generally the defendant who has the right to depose the plaintiff first. So in some cases, we would suggest to a client letting your spouse start the action so that we get the first shot at questioning your spouse under oath, so we know what they will say before you even have to appear. But one thing that I would suggest to any litigant when they decide to retain counsel is their counsel should prepare the case as if it’s going to trial because your most significant strength at the bargaining time is when the other side knows you’re ready to go to trial.
What Impact Does It Have On The Divorce Process If The Divorce Is Contested In New York? What Does That Actually Mean And How Does That Sort Of Change Things?
If a divorce is contested, it will take longer and be in the system longer than a non-contested divorce. Non-contested divorces usually occur when the parties are able to agree right up front on what’s going to happen in terms of custody, spousal support, child support, division of assets, and liabilities. They reduce it to an agreement filed with the divorce papers, and it goes through the process as an uncontested divorce which can happen a lot faster. When a divorce is contested, it takes longer, and then you wind up having to go to court for various hearings.
For instance, in a contested proceeding, the court will generally try to resolve the issue of custody first because the custodial and primary residential parent will determine who will be the recipient of child support. There are different types of custody, however. There’s sole custody, joint custody, and split custody. Sole custody means that one parent makes the primary decisions for the child or children. In joint custody, the decisions are made jointly. In split custody, that relates more to an equal division of time where the children are with each parent for an equal amount of time, which has an impact on the child support because generally, the party who was the primary residential parent receives the child support and the non-residential parent is the payer. In split custody, the parent with the higher income is the payer, and the parent with the lesser or no income is the recipient of child support.
But regarding contested, you can reasonably anticipate that you will be caught up in the New York court system for a year-and-a-half to two, if not longer. It will be very costly because of the processes that you’re going to have to go through in terms of a possible hearing on custody. The court may appoint a forensic evaluator to determine who should be the custodial parent, and you’re going to have various hearings on other issues.
For more information on Family Law in New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (212) 486-3200 today.