- How long will my divorce process take?
That depends on several factors. If the divorce is uncontested, meaning it’s resolved out of court, the process is fairly short from the time the parties enter into an agreement until the time they are divorced.
How long it takes to reach an agreement depends on how quickly the parties can negotiate a resolution, but it usually takes several months. If the parties are litigating, that takes more time. The courts are slow, and high conflict cases can last for years.
- How do I know if I should go to court?
Cases should be litigated when the parties need a judge to resolve the dispute. That could be a custody case where the parties can’t agree on parenting time or who’s going to make decisions relating to the children.
It could also involve financials issues, where the parties cannot agree on how to distribute assets, or the amount of child and spousal support. If there’s violence, substance abuse, physical abuse, or emotional abuse, that would require assistance from a judge. Generally, people should go to court when they need a judge to decide how disputes should be resolved because they can’t agree between themselves.
- How is mediation different from arbitration?
Mediation is when the parties retain someone privately, usually a lawyer, to help them resolve the dispute. It tends to be less expensive than going to trial. Mediation is non-binding, so it only works if both parties agree and abide by the resolution. It’s also important to remember that a mediator doesn’t represent either side.
So, if there’s a power dynamic in the relationship where one side is controlling the other side, the mediator doesn’t help solve that issue. The mediator is just there to help resolve the dispute, no matter how it gets resolved.
Arbitration is a process where parties testify like they’re in court, but instead of a judge making rulings, an arbitrator makes rulings. It’s very similar to going to court and it’s less expensive. That being said, most people don’t arbitrate divorce cases because arbitrators don’t have the final say when it comes to children. Judges must determine child support and custody, so it’s rare that people arbitrate divorces.
- Should we try mediation first?
It depends. There are cases where mediation is great, at least in the first instance, to try to resolve the dispute. Mediation works when there aren’t a lot of issues to resolve, when parties don’t want to spend money on litigation, and when they can communicate well. It works when each side is thinking about the interests of the other side, not just of themselves. In low-conflict situations, mediation is appropriate.
However, if there’s any sort of conflict over custody or financial issues, if the conflict is intractable, and certainly if either of the parties are in danger in any way, then they should go to court. They need attorneys to represent them and articulate their legal positions.
If you try mediation and you can’t reach an agreement, you can still proceed to trial. However, be aware that this can increase the time and money spent on your divorce.
- If we mediate, do we still need our own divorce attorney?
It depends. If the parties can communicate well and they have an experienced mediator, they may each want to hire a divorce attorney as a “shadow,” meaning somebody just to call to get advice and to work on strategies.
The mediator doesn’t represent either party, so their goal isn’t necessarily to make the mediation fair. They’re there to resolve the conflict. So, having an attorney to shadow can be a good idea to help clarify your needs and desired outcome.
Sometimes, people want the attorneys in the mediation session as well. If their communication is poor and they feel that they can’t articulate themselves in the mediation session, they may want their attorneys present to advocate for them.
- What’s the benefit to bringing in a litigation lawyer when we’re planning on mediating?
There’s always a benefit to bringing in a litigator, even if you never want to litigate. Litigators know the measuring sticks. They know how judges resolve divorce and custody disputes, so they’re good at counseling clients on what they can expect. They know how the courts are going to resolve things, so they can prepare their clients for the likely outcomes.
Additionally, if things go south, you’re still in good hands because you have an experienced litigator on your side. You always want to have someone who knows the ins and outs of the law advocating for you, even if you never step foot in a courtroom.
- What are the four most important factors to consider in choosing a divorce attorney?
The most important factor is that you choose somebody you feel is on your side. Your attorney should give you the sense that they understand you and believe in your position. That’s the most important factor, that you trust your attorney.
The second criterion is that they have experience in litigation and trial practice. That experience means they understand how courts resolve these disputes and they can give you counsel on what to expect.
You also want to choose somebody that has a reputation of integrity, in terms of how they deal with you as a client, how they deal with adversaries, and how they deal with the court. Judges want to work with lawyers who they can believe, and most people want to hire lawyers they can trust.
Finally, you should retain somebody who is transparent about how they bill and how they handle the financial aspects of the attorney/client relationship. They should be willing to resolve any questions relating to billing practices amicably.
- How much is my divorce going to cost?
It’s often difficult to predict. The answer to that is 100% determined on the level of conflict.
In divorce cases, there are many issues that need to be resolved: financial, equitable distribution, child support, custody, parenting time. If the case is low conflict and the parties can communicate and work together to resolve these issues, it will be less expensive. If the parties can’t solve these problems and there is protracted litigation, it’s going to be much more expensive.
- I have no access to cash whatsoever. Can I get my spouse to pay my attorney’s fee?
Yes, assuming the spouse has income and access to cash. Generally, there is a concept that if one spouse has more income and assets than the other, the monied spouse should pay part or all of the non-monied spouse’s attorney’s fees. The reason for that is to ensure that everybody is represented and the result is fair, not just in favor of the person with money.
- If I’m the non-monied spouse in a high-net-worth marriage, do I need money when I initially hire my attorney?
Not necessarily. If one spouse has more income and assets than the other, courts generally ask the monied spouse to pay part or all of the non-monied spouse’s attorney’s fees.
If the attorney feels that your spouse has sufficient income and assets to pay the fees in the future, then you don’t necessarily have to pay your attorney to get started on the case. Some attorneys will ask for a good-faith payment from the non-monied spouse to get started, however.
- Can I take money out of our joint savings to pay my lawyer?
- Can I take money out of retirement to pay my attorney?
Typically, no. Retirement acquired during the marriage cannot be used to pay attorney’s fees. You can’t dissipate a retirement account to pay the attorneys unless both parties agree to it.
Retirement that you acquired before the marriage, however, can be used to pay attorney’s fees because it’s separate property. Savings and cash accounts, checking and brokerage accounts can be used to pay attorneys as well.
- I don’t like the judge presiding over my divorce. Can I get a different one?
No. Judges are chosen randomly through a lottery system, and once they’re assigned, barring a conflict of interest, there’s no way to change a judge. Conflicts of interest are very rare, and if there is a conflict, the judge will recuse him or herself. Absent of conflict, you must accept the judge you have.
- What is legal custody?
Legal custody is the authority to make decisions about a child’s medical care, education-related decisions, and decisions relating to religious practice. The custodial parent can decide which school the child should attend.
An example of medical decision making would be choosing which doctor or pediatrician the child goes to, or if a doctor prescribes a certain medication, whether the child should take the medication or not. And if it’s a marriage between parents of different religions—one is Jewish and one is Christian, for example—the custodial parent can decide whether the child would have a Confirmation or a Bar Mitzvah.
All of these decisions are made ultimately by the parent who has legal custody.
- How important is it for me to have legal custody?
If you and your spouse have disputes over your child’s medical care, schooling, or religious practice, you need legal custody. The parent with legal custody has the final say on all of these issues.
If, for example, a doctor prescribes Zoloft for your child and you want him or her to take it for anxiety, but your spouse thinks that your child is too young and the side effects aren’t helpful, the person who has custody is the tie breaker.
Having legal custody gives you the right to make the final decision, which is important if you and your spouse are often in disagreement or you don’t believe your spouse will make the best choices for your child.
Having legal custody is less critical if you and your spouse can communicate and make these decisions together. In this case, joint custody may be the best option for you.
- What is joint custody?
Joint custody is when the parties make decisions about the children together post-divorce. Instead of one parent having the sole authority to make decisions about the child’s education, medical care, and religion, both parents have a say. This is the best option when the parents can communicate successfully and make decisions together.
- What does “spheres of influence” mean in a custody proceeding?
“Spheres of influence” is a way to divide up areas of a child’s care. Sometimes the courts will split up different aspects of custody, meaning one party will have one sphere, like education, and the other party will have another sphere, like medical decision making.
For example, if you have a parent who’s an educator and the other parent is a physician, then the educator may have the authority to make decisions related to a child’s education because that’s his or her specialty, and the parent who is the physician would have authority to make decisions relating to the child’s medical care.
- What is physical custody?
Physical custody is the parent with whom the child or the children spend the most time. This is determined by counting overnights during a normal two-week period (which is 14 overnights). If the child is with one parent 8 overnights and another parent 6 overnights, then the parent who has 8 overnights has physical custody. Holidays and vacations are generally counted separately.
- Is there a typical parenting schedule?
It depends on the age of the child. Younger children tend to stay with one parent primarily because it’s difficult for them to travel back and forth between homes. If the child is young, the non-custodial parent might have them for:
- Every other weekend, from early evening or after school on Friday until Sunday evening or until school starts on Monday morning;
- One mid-week overnight, for example from Wednesday after school until drop-off at school on Thursday morning; and
- One dinner during the week, perhaps every Monday.
Sometimes the non-custodial parent will be responsible for taking the child to school in the morning when they sleep at their ex-spouse’s house.
As children get older, it’s usually closer to 50/50 time. Teenagers are better able to split their time between two homes. An example of a shared schedule would be if one parent has every Monday and Tuesday night, the other parent has every Wednesday and Thursday night, and the parents alternate Friday to Monday morning. That’s a schedule more typical for older children.
- When does physical custody come up in a divorce proceeding?
Physical custody comes up when parties are trying to decide who their children will live and spend time with. It comes up depending on the age of the child and whether one parent has been primarily taking care of the child.
The issue of physical custody is often a source of conflict, not only because parents want to spend time with their children, but also because there are financial ramifications relating to the issue of physical custody.
The parent who has physical custody is the recipient of child support, and the parent who doesn’t have physical custody is the payor of child support, regardless of which parent earns more money.
- If I’m the children’s primary caretaker, can I remain with the children in the marital home after the divorce is finalized?
If it’s a marital residence, then both sides are entitled to a portion of the equity. If you can pay your spouse the value of the portion of your equity and the associated costs, like transfer tax, then you can stay in your home.
The other circumstance is if the children are older and it would be against their interests to move. If, for example, the child is in the middle of SAT preparation, courts will usually let them and the parent who has physical custody stay in the marital home until the child graduates from high school.
But this option is only for children who have commitments that would make moving difficult.
- What is a “nesting arrangement” in terms of parenting time?
A nesting arrangement is when the children stay in one home, and the parents alternate sleeping at that home. The child will live at one address, and one parent will sleep over three nights a week then vacate so the other parent can stay over for the remaining four nights of the week. The parents are never in the home together.
- What is the role of the attorney for the child?
An attorney for the child is retained to represent the child or children in custody proceedings. They are only appointed when the children are old enough to articulate themselves, and usually have to be at least five years old.
The attorney will meet with the children to see how they’re coping with the divorce proceeding and ask them what their wants and needs are. The attorney serves as the children’s advocate and voices their feelings and desires in court.
- How is the attorney for the children chosen?
Typically, the lawyers for each party come to a consensus and decide who the attorney for the child should be. The attorneys generally know who the more skilled attorneys for the child are, and they can reach an agreement as to who will be appointed by the court. If not, they will submit two or three names to the court and the judge will decide who to choose as the attorney for the children.
- What if I don’t like the attorney for the child? Can I have them removed?
There isn’t much you can do if you don’t like your child’s attorney. It’s not a good idea to try to get the child to change what they’re saying to their attorney, and you don’t want the child to get too wrapped up in the divorce proceedings.
You can have your lawyer speak to the attorney for the child to articulate your position or explain why you disagree with them, but typically you cannot influence the conclusions that your child’s attorney makes or have them removed from their position.
- What is a forensic psychologist?
A forensic psychologist is an expert whose role is to provide his or her opinion on custody and parenting time. The court may ask for a forensic psychologist’s opinion to help the court make decisions relating to these custodial issues.
- Under what circumstances does the court appoint a forensic psychologist?
Forensic psychologists are appointed in high-conflict custody cases where there is a disagreement about parenting time and custody. In some cases, a forensic psychologist is used when there is some doubt about one or both parent’s ability to meet the needs of the children.
Forensic psychologists are only helpful when children are old enough to express themselves. Forensic psychologists can’t conduct an evaluation when the children are still infants. Usually, when the children are three years old or older, the court can appoint a forensic psychologist to evaluate the parents and the family.
- What do forensic psychologists do?
The forensic psychologist will conduct a full evaluation of the family using several fact-gathering techniques and render an opinion to the court about parenting capacity, parenting time, and custody. Forensic psychologists do not conduct therapy sessions, although they sometimes administer mental health examinations like the MMPI-4 test.
They typically interview the parties in sessions called “semi-structured interviews,” when the psychologist will ask pointed questions of the parties. Then, they’ll observe each party with the child separately. They sometimes observe the parties together and see how they interact. They can go to the parents’ home to see the living arrangements and how they behave together.
Additionally, forensic psychologists speak with “third party collaterals” by calling physicians, education officials, therapists, and medical officials to get their opinion on the parents.
- How do you pick a forensic psychologist, and what are their qualifications?
The attorneys for the parties usually agree on which forensic psychologist to use. If they can’t agree, they each submit three names to the court and the court decides.
Your lawyer should choose somebody with training in forensic psychology and in child psychology or psychiatry.
They should also have a significant amount of experience performing forensic evaluations. There is a certain art to these evaluations, so you want to have someone who has refined his or her skills over many years.
- What if I disagree with the conclusion of the forensic psychologist?
If you disagree with the forensic psychologist’s conclusion, your only real option is to retain a skilled attorney who knows how to cross examine the psychologist on the witness stand. It is possible to hire a second forensic psychologist to review the report and criticize the methodologies and findings of the first psychologist, but it’s an uphill battle. The best thing you can do is hire an attorney who’s experienced and skilled at undermining the findings, the conclusions, and the opinions in the court-appointed forensic psychologist.
- How is child support calculated?
The party who does not have physical custody pays the parent who is the primary caretaker child support on a monthly basis. Child support is monies that help contribute to the costs of food, clothing and housing for the children.
Each parent’s pro rata share of combined income is applied to the following formula:
- One child must receive 17% of their parents’ combined income
- Two children must receive 25% of their parents’ combined income
- Three children must receive 29% of their parents’ combined income
- Four children must receive 31% of their parents’ combined income
- Five or more children must receive no less than 35% of their parents’ combined income
- What are so-called “statutory add-ons”?
Child support is designated only for the cost of food, clothing, and housing. Depending on the child’s needs and the parent’s financial positions, the court may require the parents to pay “add-ons,” or additional necessary costs that are not covered by basic child support. The amount that each parent pays is determined by their pro rata share of their combined income.
Add-ons can include medical premiums, deductibles, co-pays, uninsured medical expenses, and child care. In some cases, the court also includes the cost of extracurricular activities and summer camp.
- What if my spouse is late on making child support payments or refuses to make payments?
Not meeting a child support obligation is serious, and the custodial parent has two options. The best option is to go to the court and ask that the other party be penalized for violating the custody agreement or court order that requires them to pay child support.
The penalty could include legal fees or sanctions, and if it’s a large enough sum of money owed, it could even include incarceration.
The other possibility is to contact the New York State Child Support Collection Unit. It’s an arm of the state that, by order of the court, can garnish bank accounts for the purposes of paying child support. If your spouse is not paying what they owe, the Child Support Collection Unit has the authority to garnish their income and assets to ensure that you get paid.
- How is college paid for?
College is part of child support. Both parents must contribute to tuition, room, and board based on the pro rata share of their combined income, even if they disagree with the school that their child has selected.
Child support ends at age 21, so it’s likely that children will have college expenses while the non-custodial parent still has a monthly child support obligation. To account for that, the cost of college is factored into and deducted from the child support payment. For example, the amount that the non-custodial parent is putting towards college room and board may be deducted from their monthly support payment, since child support is supposed to go towards housing and food costs.
Although child support payments usually decrease when the child goes to college, the non-custodial parent is still required to pay something to the custodial parent to account for school breaks, when the child is living at home.
- Can I make my spouse contribute to a college 529 plan for the children?
It’s not mandatory and you can’t make your spouse contribute to it. However, it’s a good idea to try to work it into your settlement agreement.
- How is medical insurance paid for me and our children after my spouse and I are divorced?
Each party is responsible for their own medical insurance post-divorce. If one party cannot afford it, the cost of the premiums should be factored into the spousal support that the more monied spouse pays to the non-monied spouse for a period of time after the divorce.
For children, insurance premiums, co-pays, deductibles, and out-of-pocket costs are considered “statutory add-ons”—additional expenses that are not covered by basic child support. Each parent is responsible for these costs, which are divided based on each parent’s pro rata share of their combined income.
- When does spousal support apply?
Spousal support applies when there is a disparity in income and the less monied spouse needs some time and financial assistance until they get back on their feet. Spousal support is designed to help the non-monied spouse maintain their lifestyle for a period of time, but it’s not supposed to be used long term.
You may have heard of “alimony,” which is no longer used. Spousal support is based on the same concept, but the amount paid is now determined by a formula, and the support doesn’t last as long. The amount also tends to be less than it used to be.
- What’s the difference between separate property and marital property?
Separate property is money and assets that are acquired before the marriage or acquired through a gift, an inheritance, a trust, or compensation for personal injuries. This property doesn’t get divided between the spouses upon the dissolution of the marriage, and it stays in the control of the spouse it belongs to.
Marital property is all property acquired during the marriage. Both parties have a claim to these assets, so this property has to be divided up during the divorce proceedings. There are also instances where separate property becomes marital property during the marriage.
- Can separate property change into marital property under certain circumstances? If yes, what are those?
Yes, separate property becomes marital when it’s commingled with marital property. For example, if the parties have a bank account that contains separate property, but marital property is deposited into that account and the money is mixed, then the separate property becomes marital property.
How the parties spend their time and income over the course of the marriage can also transmute separate property to marital property. For example, if a party put a down payment on an apartment before the marriage, it would be separate property.
But if they spend their marital income paying down the mortgage, paying for renovations, and overseeing the renovations, it would transmute the property to marital property.
- What is a qualified domestic relations order and when do I need one?
A qualified domestic relations order is used at the end of the divorce or post-divorce to split certain retirement accounts so that both parties can take their share of it. For example, if one party has a 401k in their name but the account is marital property—meaning the other party has a right to a percentage of it—the court would serve a qualified domestic relations order on the administrator of the retirement plan asking them to split the 401k in half.
There are no tax consequences or penalties for doing this. Federal rules allow deferred compensation plans to be split in furtherance of a divorce.
- What if my spouse refuses to work or is intentionally underemployed?
While the courts can’t make somebody get a job, they can impute income. The court can calculate, based on a person’s age, experience, and work history, how much they could earn if they committed themselves to working. Regardless of whether the party chooses to work, the court can impute this calculation as income for the purposes of determining child and spousal support.
This is not possible to determine in all cases, such as when the party has never worked in their intended field or they are a recent graduate. But if the party has a history of working as a lawyer, for example, and they give up their career in the middle of a divorce proceeding to become an artist, the court may take note. You can’t intentionally under-earn for the purposes of defeating support obligations.
- What if my spouse is hiding money, and how can I find that out?
Banks and financial institutions are required to keep copious records, so the transfer of money is almost always memorialized somewhere. You can figure out if your spouse is hiding money by studying bank statements and other financial documents to look for unusual transfers and cash withdrawals.
You can also compare lifestyle and expenses with income. If your spouse appears to be spending more than they’re earning, then you know they’re not being transparent about their income and assets.
This can be more difficult if money is transferred overseas or if the spouse has numerous complicated assets. If you’re concerned that your spouse is hiding money, you can hire a forensic accountant who will take a close look at your spouse’s accounts and find irregular transfers.
- What if my spouse has a cash business?
Hopefully, your spouse is being honest about their income, but if they’re not, the easiest way to tell is by looking at their tax return. If there’s a disparity between the income they declared on their tax return and their lifestyle or spending habits, they may be failing to report cash income to hide the money.
You can also hire a forensic accountant to value a cash business. Sometimes accountants will even stand at the cash register to account for the monies coming into the business.