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April 26, 2013

Understanding the Fundamentals of a Divorce Action

Category: General — admin @ 10:12 am

1. Introduction

Divorce may be one of the more painful experiences people undergo in life. I have not had a client yet who was not confused, upset, and often emotionally traumatized. So the attorney’s goal is first and foremost to be your advocate to assist you in getting through a difficult time in your life and help set up the appropriate platform by which to start life anew. This will include addressing your financial and family needs so you can move forward.

2. Grounds for Divorce

By the time a spouse comes to see an attorney, it is usually pretty clear that the marriage is shattered and it is now about picking up the pieces. New York finally joined the other states of the Union allowing couples to divorce without having to prove grounds such as abandonment, adultery or cruel and inhuman treatment.┬áRather┬áin New York, you need only demonstrate, via an affidavit, that the marriage has broken down, irretrievably, for a period of at least six months prior to the commencement of an action for divorce. For the most part, then, inappropriate behavioral issues – infidelity for example – do not change the equities as between the parties. Fault is not an issue on the table.

3. Property Distribution

Rather, what is on the table is how to address what is contained within the marriage, whether it be the children or property or money. Let’s start with a couple of basic thoughts about finances. Once you file for divorce or your spouse files for divorce, there is an automatic order that none of the marital properties or assets is to be conveyed or dispensed in any way. This is because marriage is like a partnership and all of the assets of the partners, the husband and the wife, are joint assets and one party cannot dispose of them unilaterally. So a husband cannot drain a bank account and transfer it to his new girlfriend or a wife cannot make out of the ordinary purchases. The marital property is supposed to be intact until there is a determination of how it will be distributed. From the marital property, during the divorce, you can pay for your ordinary living expenses and can take out monies for attorney’s fees.

Anything acquired during the marriage is most typically marital property unless it was a specific bequest or gift solely to you and kept that way. If you had a retirement account that was yours before you became married, in your name only, and it has remained in your name but during the course of the marriage those monies increased, that increased value is marital property. If one of the spouses secures a higher educational degree during the course of the marriage, the increased earning potential based on that degree is marital property. An interest acquired during the course of the marriage in a business or a partnership is typically marital property. So, it is not as simple as splitting the bank accounts or getting the house evaluated and splitting up the equity.

Rather, all those marital assets need to be explored, sometimes your attorney finding value to you which you may not even have felt existed, because it was not a specific tangible asset like a bank account.

The best approach is to sit down with an attorney at an initial consultation and review all the potential marital assets and what the respective positions of both sides would be as to the same. Realistic understandings of marital property is fundamental if the parties hope to mediate or negotiate a resolution rather than to litigate one. Often times negotiation can be much more artful in addressing the respective needs of each party rather than a judicial determination, which most likely would not be as skilled, although sometimes quite necessary, where one of the parties is particularly out of line with a realistic claim on what is marital property.

4. The Children

Next, with regard to children, New York law really views children of a marriage as the most significant asset which needs to be protected. This includes a dedication of very significant financial resources by both sides towards children. New York has statutory formulas which are most always applied. For example, if you have two children, the basic support obligation of the parents is 25 percent of the gross combined income. That is income from any sources and before any kind of tax deduction. So for example, if each parent earns $50,000, the combined gross income is $100,000 from which $25,000 is applied to child support. Since each parent contributes one half of the gross income, $50,000 each, each parent has an attribution of contributing one half of the child support obligation. The child support obligation under this model is $25,000, each parent has an attribution of $12,500. I use the term attribution because the parent that does not retain primary physical custody, that parent typically in New York being the father, pays to the other spouse, typically the mother, his share. So dad pays $12,500 out of his $50,000 gross income. If dad only takes home $40,000, dad still pays $12,500 as basic child support. Basic child support means that there are other expenses that can go on top of that, extra-curricular activities, school expenses, medical expenses and medical insurance among many others.

5. Maintenance

The court system no longer uses the term alimony, a term which may be more familiar to you than “maintenance” which is the modern day version. Maintenance, in theory, is a concept that because marriage was a partnership, the spouse earning less money or, perhaps no money, throughout the course of the marriage is entitled to continued incoming monies, more traditionally under the concept of maintaining his or her standard of living but more frequently nowadays under the thought process of giving that spouse an opportunity to secure education or employment and then be self-sufficient. As such, maintenance is more typically of a shorter duration, as a rule of thumb maybe a spouse paying maintenance for one-third of the total number of years of the marriage. An eighteen year marriage thus may have six years of maintenance, although each case is highly variable. As the spouses mature, heading more towards retirement age, the possibility of being awarded lifetime maintenance, if there are substantial income disparities particularly, is more clearly expected.

6. Litigation Process

As to the litigation process, once a summons and complaint is filed and the action commenced, an application can be made to the court for some temporary orders as far as child support and/or maintenance. During the early course of the litigation, the parties file respective statements of net worth where they outline and list all of the assets and their values. This can be a painstaking process but it is also a very necessary process as it forms a platform by which discussions will follow as far as distribution of the assets. It is possible that the parties may be deposed, or asked questions by the opposing counsel as far as issues pertaining to child support, distribution of assets and property interests. That could be several months down the road from the time the action is commenced. Courts will help keep things moving along as far as giving the attorneys scheduling orders by which certain events must occur and the party bringing the action filing a document to the court saying they are ready for trial. Thereafter, a court conference will be held and trial date secured which can then be a few months down the road. Looming deadlines often encourage the recalcitrant spouse to step up to the plate and deal with the issues through negotiation or mediation. Nonetheless, a contested process can certainly take a year or more from the time the action is commenced until final resolution. Resolution can be via an agreement between the parties which would become part of a divorce decree or may require an actual trial where the court determines the respective rights and obligations of the parties.

7. Conclusion

I hope that this gives you some insights, albeit rudimentary, into the matrimonial process and types of issues that you will be addressing in your divorce. The best advice I could give you would be to sit down with an attorney, feel comfortable that the attorney is attuned to your interests and concerns, and is a person with whom you feel a good rapport. At Maynard, O’Connor we are headed towards our 100th anniversary as a law firm because of a tradition of caring for our clients and being strong advocates. It is that tradition which allows us to stand out from the crowd and it is that tradition which we would be happy to put to work for you.