Property & Debt Division

Equitable Distribution: The Low Down

New York is an equitable distribution state. The famous saying is that “equitable does not necessarily mean equal,” however, most of the time the issues of property and debt division are resolved by an equal division of the marital assets (and debts).

The process of determining equitable distribution requires three distinct steps: classification, valuation, and division.

Classification: Separate Versus Marital Property

The first step in equitable distribution is determining what has to be distributed. In New York, only marital assets are subject to equitable distribution. Marital assets are any assets acquired from date of marriage to date you commence an action for divorce, sign a separation agreement, or any other agreed upon date. The manner in which title is held does not matter in classifying an asset as “marital” or “separate.” So, all that matters is when the asset was acquired – not whose name the asset is in (which means, yes, the bank account in your sole name may be a marital asset!). Marital assets includes real property (like your home) but also money in 401(k) accounts, as well as stocks, bonds, and any other investments you might have. If the accounts pre-date your wedding, whatever percentage you owned prior to marriage will be considered separate property, while the remainder is marital.

The only assets not subject to equitable distribution are assets that are classified as “separate property.” Separate property is all assets that were acquired before marriage, through inheritance, gift from someone other than your spouse, property designated your separate property in a prenuptial agreement, property you receive in exchange for your separate property, or personal injury settlement.

This classification might seem straightforward, but after years of mixing and interchanging separate and marital property, tracing ownership back to your pre-marriage days might be harder than you think.

Valuation: What is the Asset Worth

This step is often one of the simplest – in the valuation portion of equitable distribution, you simply determine the value of the individual assets. Most often, this is done by looking at the bank statement, retirement statement, or obtaining an appraisal of the marital residence. If, however, there is a business interest then a more in-depth, and formal, valuation may be required to make sure that the true value is realized and distributed between spouses.

Distribution: Who Gets What

Once prior steps are complete, it’s time to divvy things up.

So long as you have clear proof of ownership, any separate property will leave with whichever spouse brought it into the marriage. As for everything else, in lieu of a valid prenuptial agreement, all marital property will be subject to an equitable distribution between partners.

Determining What’s “Fair”

In order to ensure your division is as fair as possible, the court will analyze a number of individualized factors, some of which will include:

  • The education level, earning potential, and property owned by both partners;
  • How long you were married;
  • Your standard of living;
  • Age and physical health;
  • Any minor children, as well as custodial responsibilities;
  • Spousal support;
  • Pensions, insurance, and other benefits that your divorce might sever;
  • Business ownerships, partnerships, or shares—both their value, and whether or not having an outside interest would affect said value;
    Taxes; and even,
  • How responsible both of you have been in handling your finances over the years.

This list isn’t exhaustive, and, in fact, judges are free to evaluate any other factors they think are relevant to an equitable split. For example, the career sacrifices made on behalf of a homemaking spouse. Or, if one partner financially contributed to the other’s education. Even obligations one party might have to a disabled child or incapacitated parent might be relevant.

As mentioned above, most often, the result is an equal division of the assets. This may be equal division of each individual asset or a result which – overall results in an equal division (even though individual assets may not be equal).

Air it All Out

Speaking of success, one element of property division that is crucial to a hassle-free resolution, is not hiding anything.

This bit of advice can’t be stressed enough. Financial investigators are well versed in the tricks people pull to hide assets, so the chances of you getting away with something are slim, and the penalties severe. Lying in court—even if it’s “just” in your divorce—is still perjury. And attempting to conceal money, or even undermine the worth of something, is fraud. Both of these crimes carry hefty punishments, including fines, subpoenas of all tax and income records, and in some cases, even jail time. Even worse than all of the foregoing, though, is that if you are found to be lying your credibility with any judge is destroyed – which can have devastating consequences on your overall matter.

In the end, your honesty and forthcoming will earn you respect of the court, and a faster more economical resolution.

Fault and Property

Finally, it’s important to note, that marital fault – or the reason why the marriage is coming to an end – does not impact equitable distribution. Having said that, there are instances when a spouse’s “bad behavior” may impact equitable distribution – for example, a gambling problem which created significant debt may lead to an unequal division of the assets. This is one area where it is important to have full understanding of the nuances of the law as it applies to your situation. Therefore, it’s important to discuss these matters with your attorney, if you think they might come up in your divorce.

Lauren L. Hunt: New York Divorce Attorney

The process of dividing property can be painstaking and arduous, especially for those who were married a long time or have assets that may be part marital and part separate

If you have more questions about marital property in New York, and how these laws might affect your divorce, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and let me help you receive the property division that’s equitable for you.

Hiring an Attorney

Choosing the right attorney for your divorce can feel very overwhelming. You likely have input from a lot of “helpful” friends and relatives as to who is “good” or “bad” when it comes to divorce attorneys in your area. I don’t doubt that you also have people telling you to hire a “shark” so that you get what is owed to you. This article will outline what to look for in an attorney and offer you concrete ways to make sure you are hiring the right attorney for you.

Shark v. Strategy

The first step in your process should be to understand the types of divorce attorneys. In my view, attorneys tend to fall into one of two categories: the shark attorney or the strategic attorney. Contrary to popular opinion, you do not want to hire the shark attorney.

Here’s why:

The attorney you choose is going to be your face in the negotiations (and, if in court, litigation). You not only want someone who truly understands you, but who can effectively advocate for you so that their time (and, ehem, your money) is well spent. A shark attorney is typically just focused on beating whatever drum their client told them to beat – regardless if their client has a true chance of getting what they are requesting. This often increases the drama unnecessarily, delays resolution, and creates a big expensive mess.

A strategic attorney is focused on understanding your goals and crafting a strategy that will get you to those goals in as cost effective a way as possible. When a divorce attorney is strategic, you can see less drama, faster resolution, and lower counsel fee bills.

(Check out this podcast with Susan Guthrie if you want to hear 30+ minutes of me talking about this topic and what exactly to look for in a divorce attorney!)

The Hiring Process

So, now that you are on board with hiring a strategic attorney, there are a few steps you should take to make sure that the attorney you are hiring is right for you. Hiring the right divorce attorney is a critical decision that does require a bit of your time. Below, I will outline a few items to consider as you move through this process. Then, at the end of this article, you can download my free guide which gives you my simple process for how to choose the right divorce attorney for your case.

Experience and Attitude

Experience is important but it isn’t everything. When you are hiring a divorce attorney – you want experience and attitude. You want to make sure that the attorney has several years of experience in their field. Direct experience in litigation and negotiation of family matters is irreplaceable and can significantly impact how the matter plays out. You want to make sure that your divorce attorney has the following:

  1. In depth knowledge of divorce and family law
  2. A comfortable nature in the courtroom / in chambers with a judge
  3. Experience crafting strategies that are unique to each case rather than a “one size fits all” approach
  4. Knowledge of the judges in your area that will likely hear your case

When an attorney possesses the above three qualities, they will be well equipped to handle the variety of situations (foreseen and unforeseen) that could happen in a family law matter.

However, experience isn’t the only thing. You also need an attorney with a good attitude. By this I mean, you want an attorney who other people like working with and who judges like to have appear before them. All the experience in the world doesn’t matter if people dislike the attorney so much that they tune them out the minute said individual sets foot in the courtroom. (Tip: If you enjoy interacting with your attorney, chances are other people like to interact with them too).

Cost Conscious

Divorce can be expensive. We know that. But, a good divorce attorney knows how to handle a case in a cost conscious manner so that your funds are strategically spent in areas. Stated differently, you want to make sure that the attorney you hire continually engages in a “cost / benefit analysis” for each issue. If you are not gaining traction in a certain area, the attorney needs to know when and how to pivot your case to gain traction. Some examples of this are knowing when to utilize out of court methods of resolution (like mediation) to avoid a costly and contentious court battle.

Relatedly, a reputable divorce attorney will be clear and up front with you about the costs for divorce, their hourly fees, and how those fees are calculated. They should be able to anticipate additional costs, and keep you well apprised of their fees. A good divorce attorney will address all of this, directly, in their initial consult because the cost of a divorce (and how to keep the costs down) is just as important as any other topic in a divorce matter.

Good and Timely Communication

Your attorney should be able to communicate with you in plain English. They need to be able to break down complicated topics so that you can easily grasp them. A good divorce attorney should also keep you updated about important developments in your case as they arise. You may want to ask your attorney their preferred methods of communication (email, phone call, text message, client portal, etc.) as you will want to make sure that their preferred method of communication is one that works for you.

Ethical and Honest

It should go without saying that you want an attorney who is ethical and honest with you. There can be some hard conversations in a divorce matter. Your attorney needs to be able to have those conversations with you, directly, rather than beat around the bush. An honest attorney will be clear with you about the pitfalls you face as you move forward and they must also tell you when a request is simply not possible. One way to know if your divorce attorney is honest and ethical – think through your conversations with them. Have they sugarcoated their communication with you or guaranteed you a certain result? If so, you may want to keep looking for an attorney who can be honest with you and tell you the range of results that are possible.

Likability and Interest

These factors are often not given as much weight as they deserve. Which is a mistake because you will be spending a lot of time talking with your attorney and interacting with them. If you find your attorney frustrating, or mean, or difficult – that’s not going to bode well for you!  When you like interacting with your attorney you are more apt to connect with them to share important information about your case which will help them to represent you better. Even more, an attorney that you feel comfortable around can help keep you at ease when the tension is high.

Further, your attorney needs to seem interested in your case. A good divorce attorney will engage with you in an empathetic way, they will listen to understand you, and keep you focused on the relevant parts of the puzzle. They will provide a safe and non-judgmental space for you to share your concerns, fears, and goals because they truly care about finding a resolution custom fit for you.

What Next?

If you’ve made it this far, you have a good idea of the key factors to think about when considering hiring an attorney. Next, you need to select the right attorney for you. Lucky for you – I have a guide that takes you through a simple 3 step process to finding and hiring the right attorney for you. You can download it here: Guide To Hiring An Attorney

Lauren L. Hunt: New York Divorce Attorney

If you have more questions, I want to hear from you. Schedule a consultation by calling our office at
518-282-7300, or, make an appointment online, and let us help you start the next chapter.

Finances

Equitable Distribution: The Low Down

New York is an equitable distribution state. The famous saying is that “equitable does not necessarily mean equal,” however, most of the time the issues of property and debt division are resolved by an equal division of the marital assets (and debts).

The process of determining equitable distribution requires three distinct steps: classification, valuation, and division.

Classification: Separate Versus Marital Property

The first step in equitable distribution is determining what has to be distributed. In New York, only marital assets are subject to equitable distribution. Marital assets are any assets acquired from date of marriage to date you commence an action for divorce, sign a separation agreement, or any other agreed upon date. The manner in which title is held does not matter in classifying an asset as “marital” or “separate.” So, all that matters is when the asset was acquired – not whose name the asset is in (which means, yes, the bank account in your sole name may be a marital asset!). Marital assets includes real property (like your home) but also money in 401(k) accounts, as well as stocks, bonds, and any other investments you might have. If the accounts pre-date your wedding, whatever percentage you owned prior to marriage will be considered separate property, while the remainder is marital.

The only assets not subject to equitable distribution are assets that are classified as “separate property.” Separate property is all assets that were acquired before marriage, through inheritance, gift from someone other than your spouse, property designated your separate property in a prenuptial agreement, property you receive in exchange for your separate property, or personal injury settlement.

This classification might seem straightforward, but after years of mixing and interchanging separate and marital property, tracing ownership back to your pre-marriage days might be harder than you think.

Valuation: What is the Asset Worth

This step is often one of the simplest – in the valuation portion of equitable distribution, you simply determine the value of the individual assets. Most often, this is done by looking at the bank statement, retirement statement, or obtaining an appraisal of the marital residence. If, however, there is a business interest then a more in-depth, and formal, valuation may be required to make sure that the true value is realized and distributed between spouses.

Distribution: Who Gets What

Once prior steps are complete, it’s time to divvy things up.

So long as you have clear proof of ownership, any separate property will leave with whichever spouse brought it into the marriage. As for everything else, in lieu of a valid prenuptial agreement, all marital property will be subject to an equitable distribution between partners.

Determining What’s “Fair”

In order to ensure your division is as fair as possible, the court will analyze a number of individualized factors, some of which will include:

    • The education level, earning potential, and property owned by both partners;
    • How long you were married;
    • Your standard of living;
    • Age and physical health;
    • Any minor children, as well as custodial responsibilities;
    • Spousal support;
    • Pensions, insurance, and other benefits that your divorce might sever;
    • Business ownerships, partnerships, or shares—both their value, and whether or not having an outside interest would affect said value;
    • Taxes; and even,
    • How responsible both of you have been in handling your finances over the years.

This list isn’t exhaustive, and, in fact, judges are free to evaluate any other factors they think are relevant to an equitable split. For example, the career sacrifices made on behalf of a homemaking spouse. Or, if one partner financially contributed to the other’s education. Even obligations one party might have to a disabled child or incapacitated parent might be relevant.

As mentioned above, most often, the result is an equal division of the assets. This may be equal division of each individual asset or a result which – overall results in an equal division (even though individual assets may not be equal).

Air it All Out

Speaking of success, one element of property division that is crucial to a hassle-free resolution, is not hiding anything.

This bit of advice can’t be stressed enough. Financial investigators are well versed in the tricks people pull to hide assets, so the chances of you getting away with something are slim, and the penalties severe. Lying in court—even if it’s “just” in your divorce—is still perjury. And attempting to conceal money, or even undermine the worth of something, is fraud. Both of these crimes carry hefty punishments, including fines, subpoenas of all tax and income records, and in some cases, even jail time. Even worse than all of the foregoing, though, is that if you are found to be lying your credibility with any judge is destroyed – which can have devastating consequences on your overall matter.

In the end, your honesty and forthcoming will earn you respect of the court, and a faster more economical resolution.

Fault and Property

Finally, it’s important to note, that marital fault – or the reason why the marriage is coming to an end – does not impact equitable distribution. Having said that, there are instances when a spouse’s “bad behavior” may impact equitable distribution – for example, a gambling problem which created significant debt may lead to an unequal division of the assets. This is one area where it is important to have full understanding of the nuances of the law as it applies to your situation. Therefore, it’s important to discuss these matters with your attorney, if you think they might come up in your divorce.

Lauren L. Hunt: New York Divorce Attorney

The process of dividing property can be painstaking and arduous, especially for those who were married a long time or have assets that may be part marital and part separate

If you have more questions about marital property in New York, and how these laws might affect your divorce, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and let me help you receive the property division that’s equitable for you.

One of the biggest reasons divorce takes so long, is property and debt division. After all, it’s not just a relationship you’ve been sharing with your spouse, it’s money, property, and other tangible assets, too, and it can take a while to untangle all those years shared ownership. Especially when everything has to be analyzed beneath the nuanced scrutiny of New York’s equitable distribution laws.

The underlying goal of these rules, is to divide property in a way that sets both partners up for long term success. However, the process of getting there can sometimes be convoluted, which is why it’s a good idea to know how it works, before heading in.

Children

Divorcing couples might not see eye to eye on much, however, those with children can usually agree that no one is more important the littlest of their brood. In fact, minor children are often the main reason people put off divorce, as many parents worry about how a divorce may impact their child.

Luckily for parents, these concerns are shared by the state of New York. The court understands that, during divorce, each decision will have long-lasting, and far-reaching effects on a child’s emotional and physical well-being. As such, the goal in any custody matter is to make sure that the children’s issues are resolved in a way that makes sense for that particular family.

Best Interest of the Child

When making decisions involving children, the court evaluates all facts through the scrutinizing lens of the “Best Interest of the Child” standard (also known as the “Best Interests” test).

Under this principal, every decision that impacts a minor is made with the child’s overall well-being at the forefront—not just as it applies to their short-term happiness, but in regards to their long-term growth and emotional welfare, too.

As a parent, your perspective on this front is a valuable resource to the court. However, it isn’t infallible, and occasionally, your wishes might get overruled in favor of what the judge believes is in your child’s best interest. A judge-decided custody resolution is, often, not the best option for families as a judge can never understand your children and family dynamics as well as you and your spouse. Stated a different way – if you want a result that is actually tailored to your family’s needs – the best way to do that is through an out of court settlement. Couples who are able to settle out of court are usually much happier with their final outcome, since it offers them much more control over the terms – and, in effect, their children’s lives. However, sometimes you cannot find a way to reach a resolution out of court. In those instances, understanding the custody laws can be vitally important.

Custody and Visitation

In layman’s terms, “custody” is essentially the delegation of parental power, and can be broken down into two main categories: legal and physical. Each category has to be addressed in any custody settlement or custody order, therefore, it is essential to understand both and how they apply to your family.

Legal Custody

Legal custody is decision-making for a child; specifically, decisions in the following areas: education, medical needs, religious upbringing, general health, welfare and morals. Legal custody can be resolved in the following ways:

  • Joint legal custody: where the parents have to jointly discuss and agree upon all matters,
  • Sole legal custody: where one parent has total control over all matters; and
  • Modified joint legal custody with final say: Where the parents have to discuss all matters but if they cannot agree, one parent has final decision-making power.

Of the above resolution types, Joint Legal Custody is the most frequent resolution. This is because the inherently imbedded right of a parent to choose how their child is raised is highly regarded by both state and federal courts. As a result, judges are loath to take it away from either parent. The only times the court might limit these rights, is if doing so is absolutely necessary to avoid future harm to a child.

Physical Custody

Physical custody refers to where the child will live on a day-to-day basis.

In New York, the court maintains that a child’s best interests are served by having a loving, healthy relationship with both parents. Judges like to find resolutions for physical custody that ensure the children will see each parent on a frequent basis. There is a trend in New York to arrangements where the parents equally share physical custody. This is called “equal parenting time.” However, in some situations, the family needs a situation where the children live primarily with one parent (the “primary custodial parent”) and visit the other parent (for, “parenting time.”)

A number of factors contribute to a physical custody schedule, including children’s needs, the availability of both spouses, overall home environment, educational opportunities and the children’s wishes (to varying degrees). The court is will also consider whether the parents can help their child foster a relationship with the other parent.

Parenting Time

When a child’s time is split unequally between partners, leaving one parent as the “primary custodial parent” and, then the other parent will have “parenting time.”

In situations where substance abuse or violence is a concern, a judge may order supervised visitation. Supervised visitation is exactly that – it is when a parent’s parenting time is supervised by a third party to make sure that the children are safe. The supervisor may be a friend, family member, mutually agreed upon third party, or a person from a supervised visitation agency.

Does My Child Have a Say?

Children are young and impressionable, and—as anyone who has battled vegetable-eating and teeth-brushing tantrums can attest—they aren’t always capable of knowing what’s actually best for them.

Because of this, the children’s wishes may come into play in a custody case to varying degrees. The saying in this respect is that “children have a voice, but not a vote.” Though, as a general rule, the closer the child is to eighteen, the greater weight these wishes are given.

Adultery and Divorce

Being a crummy spouse doesn’t mean you’re a bad parent. Therefore, an affair is often irrelevant in a custody matter; and does not affect custody and visitation.

While an affair may be irrelevant, a new relationship may be important – only to the extent that many judges want to see parents waiting until the relationship is at least several months old before the children meet the new boyfriend / girlfriend. This is to enhance the child’s stability by not having new people brought in and out of their life.

Child Support

Another important issue that divorcing partners face, is the question of child support. After all, your children may be your life…but they are also expensive!

The law in New York State requires that both parents financially support their children. Child support is composed of 2 items: basic child support and “add on” costs.

Basic child support is a set payment (biweekly / weekly) from parent who has parenting time to the parent who has primary physical custody. This payment is most often a percentage of the paying parent’s income. In cases of equal parenting time, the parent with the greater income is the parent who would pay support to the other parent.

The “add on” costs are specified expenses that are split between the two parents – either in proportion to their income (“pro rata”) or in another agreed upon manner. The child support statute requires that the following expenses are shared: the children’s portion of any health insurance premium, the children’s uncovered medical costs, child care expenses incurred to enable a parent to work. Parents can also agree to split any other cost or expense they may agree upon.

These funds are not optional—and neither is visitation time. Late or missed payments do not give a custodial parent the right to withhold visitation, and doing so can have severe consequences. If your spouse isn’t paying child support, your attorney can help you address these issues through legitimate channels.

Lauren L. Hunt: New York Divorce Attorney

Divorce is a confusing and difficult time for children. Many feel lost and abandoned, and are unable to grasp the changing dynamics of their new reality. For parents, watching this struggle is, perhaps, the most excruciating aspect of divorce.

As a mother and a child of divorce parents, I understand your concerns and your child’s fears. I<spanconverted-space”>  empathize with parents trying to cope under the burned of shifting responsibilities and an unknown future. I bring this parental perspective to my practice, and am particularly sensitive to these needs as an attorney.

If you have more questions about divorce in New York, and how it might affect your children, call the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and together, we can ensure a bright new future for the ones you both love the most.

Mediation & Collaborative Law

Divorce does not have to be a long, drawn out, courtroom battle. In fact, many couples opt to avoid the drama, cost, and emotional stress of a court-based divorce process by pursuing either mediation or a collaborative divorce.

These out-of-court options for divorce in New York are excellent options for nearly every couple looking to separate. This is true even if you and your spouse are not very amicable because, for these options to work, the main item you need to agree upon is that you both want to keep control over what happens to your children; rather than giving up control to a judge in a court based process.

In addition to affording the parents the ability to continue making decisions about what is best for their children, mediation and collaborative divorce allow parents the ability to dissolve their marriage, without suffering through the stress, significant cost, and emotional drama tied to a court-based divorce.

Mediation and Collaborative Divorce: An Overview

In a nutshell, mediation and collaborative divorce are both out-of-court divorce options designed to help couples negotiate a settlement without the interference of a judge.

During mediation, couples sit down with a third-party individual (called a “mediator”), who sits as a neutral, and assists the spouses in discussing and resolving the important issues in their divorce. These proceedings are confidential, and non-binding, meaning, that if it fails, nothing can be used against you in court at a later date.

Collaborative divorce is very similar to this format as it is an out-of-court process designed to help spouses resolve their divorce without heading to the courtroom. It differs from mediation in that, in collaborative divorce, the parents each retain their own attorney to help guide them through the process.

Mediation: The Basics

Mediation is a very popular option for many couples. In mediation, the parents hire one mediator who meets with the spouses, jointly, to help them reach resolutions on the important issues in the marriage. The mediator may be an attorney or they may be a non-attorney who has received special training in New York divorce laws and alternative dispute resolution. The parents attend a series of mediation sessions with the mediator where they go issue by issue and work to settle all matters associated with their marriage.

Right to Legal Counsel

During the mediation process, the parents may choose to hire their own attorney – who could provide them independent legal advice – or they may forgo an attorney. If a parent chooses to hire an attorney, the attorney would not attend mediation sessions unless all persons involved consent to that arrangement. Instead, the attorney and parent would meet individually, either before or after each session, to discuss the issues, status of negotiations, and help the parents create a plan for the next mediation session. The attorney would also answer any questions the parent has about the law and their options; with the goal of helping the parent feel more comfortable attending the mediation session and advocating for themselves.

Keep in mind, there is no obligation for parents to hire an attorney during the mediation process. It is, though, a very good idea for a parent to at least speak with an attorney during the mediation process and get a solid understanding of their rights so that they can be educated and feel empowered while in mediation.

The Mediation Process

As mentioned above, mediation is an out-of-court option for divorce. While each mediator may have their own way of approaching mediation the mediation sessions, the process generally remains the same. First, there is an introductory call with both parents (either individually or jointly). Thereafter, the mediator outlines the topics that the parties need to address and you move issue by issue through these topics until you have a full and complete agreement. Once you have a full agreement, the terms you agreed upon will be placed into a Separation Agreement, reviewed by you and your spouse, and then signed by you both.

The mediation sessions may be held in person or via Zoom (or similar video-conference platform). The benefit to an online mediation is that the parents do not need to be in the same room as each other, which can help ease tensions and related fears. Another benefit to online mediation is that the sessions occur wherever is convenient for you. There is no driving, fighting traffic, finding parking or other similar headaches you receive.

Proving Income, Assets, & Debts

The term “financial disclosure” means each side disclosing any and all information that is relevant to the topics being discussed. In mediation, the parents will decide what information will be provided. For example, parents may exchange bank statements, retirement account statements, pay stub, tax returns, and other similar documentation.

Mediation is a voluntary process and, for it to be successful, the spouses need to feel that they have been provided reasonable documentation upon which to trust that the financial resolutions they are basing the Agreement on will not come crumbling down around you.

What is a Separation Agreement and Who Drafts It?

In New York, a Separation Agreement is a contract between two spouses that outlines the terms you and your spouse agreed upon for the following topics: child custody, child support, spousal support, property and debt division, and counsel fees. The Separation Agreement is a legally binding contract. Once you sign the Separation Agreement, you become eligible to apply for an uncontested divorce in New York.

If your mediator is also an attorney, they have the ability to draft the agreement for you. You and your spouse would then attend a joint session with the mediator to review the agreement and sign the document. Once signed, you become eligible for an uncontested divorce in New York.

If your mediator is not an attorney, then your mediator will draft a “Memorandum of Understanding.” The Memorandum of Understanding is not a legally binding contract. Instead, it acts as a summary of the terms agreed upon in mediation. One of the parent’s then takes this Memorandum of Understanding to an attorney who would draft a Separation Agreement and provide a copy of it to the attorney representing the other parent. The proposed Separation Agreement should be reviewed by both the attorney who drafted the document and the other parent’s attorney. If all appears in order, you would sign the document and become eligible for an uncontested divorce in New York.

What Happens After We Sign?

You can choose to live under the Separation Agreement for a period of time or move forward to an uncontested divorce.

There can be benefits and drawbacks to deciding to live under the Separation Agreement. One reason to do so could be the ability to continue receiving health insurance under a spouse’s health insurance plan. However, a drawback to living under the Agreement is that you are still considered married in the eyes of the state and federal government. The decision of whether you should living under the Agreement – and delay the Judgment of Divorce – is one that should be thoroughly discussed between spouses and mediator, and where appropriate, outside legal counsel.

If you choose to move forward to an uncontested divorce, and your mediator is an attorney, then your mediation may be able to help you handle the uncontested divorce. If your mediator is not an attorney, then the attorney who drafted the Separation Agreement can likely handle the uncontested divorce. Be aware that the uncontested divorce process can take a few months but does not require court conferences or any significant amount of work on your part.

What is the Uncontested Divorce Process?

In its simplest form, an uncontested divorce is merely a series of papers filed with the Court in a certain order. Once the judge reviews the papers, they will sign off on the Judgment of Divorce which officially converts your Separation Agreement into a Judgment of Divorce.

Collaborative Divorce: The Perks

One way to think about Collaborative Divorce is that it is “mediation plus.” Meaning, it is similar to mediation in that you have a neutral who helps guide parents through the collaborative matter. However, the “plus” comes into play in the following way: in collaborative divorce the parents each hire their own attorney to provide independent legal advice and guidance throughout the process.

Here’s a look at a few of the other characteristics that make collaborative divorce different from a non-collaborative divorce or the typical mediation process.

Collaborative Agreement

When parties enter the collaborative divorce process, they sign a document known as the “Participation Agreement.” This agreement provide a lay of the land, so to speak, and explains that all negotiations will be in good faith, with full disclosure, and full participation of the collaborative team (which is the attorneys, the neutral, and any other professionals who may be necessary; more on that below). This agreement helps to ensure that everyone understands what is expected of them and provides a bit more structure to the process than an agreement to mediate.

In this contract, each party agrees to:

  • Disclose all relevant information (including financial documents, and other obligations, accounts, money, and property);
  • Proceed in good faith, and not take advantage of any honest mistakes made by the other side;
  • Respect the other party’s goals and interests during negotiations; and
  • If the matter breaks down, and an agreement cannot be reached, then the agreement requires a 30 day “cooling off” period before commencing litigation (there is an exception for an emergency); and
  • To preserve the confidential nature of the discussions, the parties agree that if the matter breaks down they will fire their collaborative counsel and hire a new attorney for the litigation.

A Team Effort

Another distinguishing feature to collaborative divorce in New York, is that the parties have a “Collaborative Team” who work together with the parties to address their matters in prompt and cost-effective ways.

A typical Collaborative Team consists of the attorneys for the parties and the neutral. The neutral is often called the “family professional” and is typically a therapist with special training in childhood development and needs. From there, the core team can add in professionals to help on specific issues as the team and the parties agree. For example, if one parent owns a business that needs to be valued, the team would agree upon a valuator and bring that person in to value the business in an open and transparent manner. The professional could sit in on any meetings, as the parents or team needed, to help discuss potential resolutions. Once their task is complete, they terminate their involvement.

Another key way the team approach is a significant benefit is in the area of child custody. There, the family professional (who is often a child therapist) will sit with the parents and work to resolve the parenting time schedule and other child related issues. This is a very economical and streamlined process for resolving custody which is a tremendous benefit to the family. It also, though, provides parents the ability to create their parenting time schedule with the help of a trained therapist – a benefit not found in any other dispute resolution method.

Family Goals & Values

Another defining attribute to Collaborative Divorce is that every collaborative matter starts with the determination of “family goals and values.” This is a process whereby the family professional helps the parents discuss and agree upon the 3-5 concrete family goals and values that will help to guide them through this process. The idea is that all terms of the agreement will in some way support those family goals and values to make sure the agreements reached are tailored to the needs of the family.

These goals and values also have another benefit – they can help break any logjam that the parents run into. For example, if a family goal is having a home base for the children during the week and the parents get stuck arguing about schedules that wouldn’t create that home base then revisiting the goals and values may help move the parties back on the track they originally on.

What happens if it doesn’t “work”?

Of course, it’s easy to say you’ll play nice before the process has begun. However, once the collaborative meetings begin you will be discussing sensitive topics that may trigger tense responses. This is normal…and, more importantly, it does not mean that collaborative cannot work for your situation. But, there are times when a collaborative matter reaches an impasse that logic, and re-direction to family goals cannot break. In those instances, something else is needed.

Enter: the proper motivation.

One of the most brilliant aspects of collaborative divorce, is its insurance policy. In order to encourage both parties to bring their best selves to the table, each collaborative divorce agreement includes an termination clause. This section states, that, in the event a resolution cannot be reached, both sides will be required to scrap their attorney, and start preparing for litigation with new representation.

Naturally, having to start over with a new attorney would be a lot of work and a significant expense — which is exactly why this clause is so effective. Once agreed to, it locks both parties into an outcome of either mutual success, or mutual destruction (figuratively speaking, of course), giving everyone a vested interested in making collaboration work. Moreover, it makes the attorneys just as committed to the process working as it does the parents.

Why You Should Choose an Alternative Divorce Method

Hopefully you didn’t let that bit about “mutual destruction” in the previous paragraph scare you away from collaborative divorce. While the threat of having to get new representation isn’t optimal, it is rare that a case cannot reach a full resolution.

Still, whether you choose mediation or collaborative divorce, both methods offer a wide variety of benefits to clients, including:

  • A setting that places more weight on your individual opinions and concerns;
  • More control over your final outcome;
  • The flexibility to reach an agreement that better suits your specific family needs;
  • Less financial stress, since both cost far less than traditional litigation; as well as,
  • Peace of mind, in knowing they’re choosing an option that will help everyone — especially young children — transition into the family’s new normal without the toxicity of a long, drawn-out court battle.

In light of all that, if the worst that can happen is that you have to start over with a new attorney, there really is no reason not to at least try.

Lauren L. Hunt: New York Divorce Attorney

Just as the needs in every relationship are different, no two divorces are the same, either, and for many couples, litigation just isn’t the best option. Mediation and collaborative divorce are both great ways to execute an efficient, frugal, and much more agreeable end to your marriage…and they are available to you even if your relationship is tense / occasionally hostile.

If you have more questions about these out of court divorce options in New York, and how they can be applied to your situation, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and together, we can figure out which type of divorce will work best for you.