Thinking about a divorce?- Here’s what you need to know

It happens. Sometimes ‘til death do us part’ no longer seems like a viable option for your marriage. Whatever the reasons, are you prepared for getting a divorce? Do you know what to expect? Probably not. Since ‘knowledge is power’ a bit of basic information may ease the mind.

While each person’s marriage and family situation is unique, and this is not a ‘one’size’ fits all situation, each divorce must resolve fundamental issues such as the family’s finances and, if there are children, custody matters.

The family’s financial issues that require resolution are :
1. Dividing the assets
2. Spousal support
3. Child support

The custody issues, to name a few are:
1. Where will the children live?
2. When will each child spend time with each parent?
3. Who will make decisions for the children?

Dividing the assets in ‘divorce speak’ in New York is termed equitable distribution. The concept is that the division of the assets should be fair- hence the use of the word equitable. Assets include the marital residence, other real estate, retirement funds, non-retirement accounts, vehicles, jewelry, furniture and such. Also, equitable distribution includes an allocation of who shall pay which debts. Debts include mortgages, home equity loans, credit cards, car loans and any other debts incurred during the marriage.

Spousal support is called ‘maintenance’ in New York ‘divorce speak’, but in other states it is referred to as alimony. If there is a significant disparity of income, the person who is the financially advantaged spouse would pay maintenance to the financially disadvantaged spouse. The amount of the payment and duration is guided by calculations based on the Domestic Relations Law post divorce maintenance provisions.

Child support is paid to the parent with whom the children resides. The amount of the payment, is guided by New York’s Child Support Standards Act and the income of both parents.

All the financial issues identified above are subject to negotiation by the parties and if the parties cannot reach an amicable resolution and they choose to go to trial, a Judge may make the decision for them.

Custody is always a delicate matter. There are different kinds of custody – joint custody, sole custody, shared custody, residential custody- and the determination, as to which kind of custody will prevail, is either agreed to by the parties or determined by a court. That custody decision will determine where the children live, how much time each parent spends with the children, and who makes the decisions for the children’s well being.

To explain further: Parents having joint custody will make decisions for the children together on consent. If the children will live the majority of the time with one parent, that parent is said to have residential custody subject to the other parent’s parenting time, for which a schedule shall be determined. If the children spend an equal amount of time with both parents, that is said to be shared custody, and a parenting schedule shall be determined for this arrangement as well. Sole custody is when one parent has both residential custody of the children and makes the decisions for the children, usually after consultation with the other parent, but not necessarily on consent and a parenting schedule will be worked out as well for the non-custodial parent.

Lots of decisions need to be made to determine the future for a family that is changing its status from married to divorced and the ‘how’ to make the decisions is as important as what kinds of decisions need to be made. If divorce is the destination, there are different paths to get there ; litigation, mediation and collaborative divorce.

When people think of divorce, litigation is the first thing that comes to mind. However, each divorce need not be resolved through the Courts. Mediation and collaborative divorce are alternative dispute resolution methods that eliminate the need to appear in Court.

In mediation a neutral mediator facilitates the parties to come to a settlement agreement of all the issues of the divorce.

In a collaborative divorce case both parties are represented by counsel, but the parties and counsel work together as a team, and agree, as with mediation not to seek resolution in the courts.

In a litigated case, the parties are represented by counsel, and the case proceeds in an adversarial way with the Court scheduling appearances and ultimately, if the parties do not negotiate a settlement, the divorce issues are determined by a judge.
Which method to choose is up to the parties. It is the first decision that they will need to make, and could well determine how long the journey and how smooth the road to divorce will ultimately be.

Divorce Is Not Only for Grown-ups

Divorce is not only for grown-ups. Children are the collateral damage of their parents’ divorce. While that sounds harsh, it is the uncomfortable reality. In every divorce where the children are minors (in New York, under age 18), there is always a custody decision which results in a determination of living arrangements for the children. The parents, by deciding to divorce, have chosen to live separate and apart, but the children – not so much. Nonetheless, that becomes their new reality, which will impact the children’s relationship with each parent.

Deciding where the children are going to live is not like dividing up the furniture and deciding who gets Grandma’s china.

“A child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too…” Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546 (Court of Appeals 1976).

“The child’s expressed preference is an additional factor to be considered, taking into account the child’s age, maturity, and any potential influence that may have been exerted on him or her.” Tejada v. Tejada, 126 A.D.3D 985 (2nd Dept. 2015); Eschbach v. Eschbach, 56 N.Y.2d 167 (Court of Appeals 1982).

The child’s influence on his/her own custody determination was increased dramatically in 2007 by a change to the New York Rules of the Chief Judge Administrative Rules of the Unified Court System and Uniform Rules of the Trial Courts. (see New York Rules of the Chief Judge Administrative Rules of the Unified Court System and Uniform Rules of the Trial Courts, Section 7.2 and NYLJ July 26, 2019, “Does Empowering Children During Divorce Litigation Serve them Well by Lisa Zelderman).

In contested litigated custody matters, the Court appoints an attorney for the child or children as the case may be. Prior to 2007, the role of the attorney for the child was not adequately defined, but was construed to be to advocate for the child’s best interest. However, in 2007 after the ruling by the Chief Judge of New York, the role was clarified so that the attorney for the child is to “zealously advocate the child’s position”(New York Rules of the Chief Judge Section 7.2[d][2]), even if the child’s preference may not be in the child’s best interest. While Section 7.2 does provide exceptions to the rule, the usual procedure is that the child’s position is what the attorney for the child must advocate. There are exceptions to the rule. If the attorney determines that the child lacks the capacity for knowing, or that “following the child’s preference would result in substantial risk of imminent serious harm,” the attorney for the child may advocate for what is in the child’s best interest. New York Rules of the Chief Judge Section 7.2(d)(3).

The 2007 ruling effectively gives the child a powerful voice in the proceedings, and depending on the age of the child, the voice can have a profound effect on the outcome. If the case goes to trial, the Judge makes the ultimate decision as to custody, using the best interest standard. The judge considers the positions of the Mother, Father and child. Each party’s attorney advocates for the client’s position by presenting evidence and testimony consistent with that position. The child, thus, becomes a party to the action with the same input as each of the parents.

The fact that the child is considered an actual party even though the child is neither Plaintiff nor Defendant in the matter, is evident in a recent appellate case regarding a modification of custody, Matter of Newton v. McFarlane (NY Law Journal June 11, 2019, 2nd Dept.). The appellate court held that the Father should be given sole custody of the child, finding that the trial court’s decision to change custody from the Father to the Mother was in error because the lower court “failed to give due consideration to the expressed preferences of the child, who was 14 and 15 years old at the time of the proceedings in the Family Court, and who communicated a clear desire to remain in the father’s custody.” The appeal was taken on the child’s behalf by the attorney for the child, with the Court determining that the child had the right and standing to file an appeal from the Family Court’s decision, as the child was ‘’aggrieved” by the lower court’s decision.

There is a less contentious way to determine custody and other divorce issues. That other way would be the Interdisciplinary Collaborative Divorce method using mediation techniques and a team approach to obtaining a divorce settlement and agreement on custody and parenting time. This avoids abdicating the decision about the future of the family to a third party – the Judge.

The Interdisciplinary Collaborative method is a means of alternative dispute resolution eliminating the need for a judge and the court system to make a decision for the family. In a Collaborative Divorce case that involves custody, instead of an attorney representing the child and advocating for the child’s position, there is a child specialist: a mental health professional who gives voice to the child’s concerns and interests as well as acknowledging the interests of the parents.

A legal background may not be the best preparation for an individual who represents a child in a custody case, especially if that person’s role is defined as zealously representing the child’s position, even if that position is not in the child’s best interest. A mental health professional whose practice consists of children and families has a different perspective, more akin to helping the child and the family rather than advocating a position. Together with the parents, the attorneys for the parents and the mental health professional, a custody settlement that is in the best interest of the children and the parents can be agreed to collaboratively, rather than have a decision imposed by a Judge.