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“Ways to Divorce in New York State” By Carolyn Zenk, Attorney at Law/Certified Mediator Touro Law School.
The following article represents my opinion only and is not to be construed as legal advice since each couple’s divorce presents a case of first impression and different outcomes may be expected in New York State depending on the facts in your case.
Mediation helps to save thousands of dollars and enables parents to successfully and peacefully raise their children.
SUMMARY OF WAYS TO DIVORCE IN NEW YORK:
There are several ways to obtain a divorce in New York State. These include: divorce mediation, divorce litigation, collaborative divorce, “do it yourself” divorce, and negotiation of a separation agreement using separate counsel. This article discusses the pros and cons of each approach. Please note that it is advised that you consult an individual divorce attorney regarding the specific circumstances of your divorce to obtain the advice that is the best for you. This article should be used for general guidance only. Consult an attorney to divorce.
Let me start with what I generally consider the two most desirable approaches to a divorce and follow up with what I consider the least desirable approaches. The manner in which you approach your divorce can affect you and your children for decades to come. Take the time to consider the right approach for you.
MEDIATED SEPARATION AGREEMENT WITH ATTORNEY/MEDIATOR WITHOUT THE USE OF PERSONAL COUNSEL:
(I give this approach an A minus to A+ with respect to saving money and getting the job done and a B+ to A minus with respect to protecting your rights). If your focus is primarily to protect your legal rights to the maximum extent possible, you may wish to hire an independent counsel before you sign a mediated separation agreement to make sure that the document you are signing is in your best interest. However, the additional review by outside attorneys, may lead to litigation that may be unnecessary and expenses may be redundant.
On the other hand, if your concerns are primarily financial, you may wish to pursue the following approach, which is still cost-effective and still gives you the benefit of the services of a professional lawyer, who has a duty to act competently with respect to your rights and is prohibited by law to draft an unconscionable (unfair) agreement.
In this approach, the Attorney/Mediator advises the couple on the law, mediates the issues involved between the couple, and writes up the separation agreement. Neither spouse uses a personal counsel. It is not necessary to prove fault. The Mediator will probably advise the couple to seek outside advice before they sign the agreement. Why does the Mediator do this? Currently, there is a tension between litigators and mediators in the profession. Litigators claim that there is an inherent conflict of interest when a couple uses the same Mediator/Lawyer. Mediators counter that Litigators may be saying this because mediation saves a given couple tens of thousands of dollars that litigators may never see and that it is in the long-term interest of the couple to preserve their partnership with respect to raising their children through a less conflict-driven process than litigation. Mediators often advise couples to seek the advice of their respective counsels. This protects the Mediator from liability. It may also further protect the couple’s rights. (At the same time, it can lead to litigation.)The couple can waive this right. If you have sought a worthwhile professional, and not a fly-by-night lay Mediator, this process should cost the couple from $2,000 to $8,000. The couple splits this cost.
MEDIATED DIVORCE USING ATTORNEY/MEDIATOR WITH SEPARATE LAWYERS GIVING REVIEW OF FINAL SEPARATION AGREEMENT:
(I rate this A minus to A+ in 90% of cases. I rate it a B on expense). This approach is probably the optimal approach from a legal point of view in 90% of the cases. There are some down sides, such as involving three lawyers who must be paid. Under this approach the couple engages a Mediator/Attorney to negotiate and prepare a separation agreement for them. Once the document is prepared, each member of the couple goes over it with his own attorney before he/she signs it. Each spouse can also seek independent legal advice from his/her own counsel while the mediation is being conducted.
This approach has several distinct advantages. The cost savings is still significant over a litigated divorce. Tens of thousands of dollars can be saved by using this approach. The mediation itself usually takes from two to eight hours depending on the complexity of the estates involved and the complexity of the legal issues. (Sometimes it takes longer if an unusual issue presents itself; for example, one member of the couple is handicapped.) Writing the separation agreement can take from two to eight hours as well.
The couple has the advantage of having a professional who knows the law at his/her disposal and who can advise them accordingly. The couple splits the mediator’s bill, cutting it in half. The mediator must be neutral and cannot take sides; therefore the separation agreement cannot be biased toward one partner. In addition, at the time of this writing, there was law in the State of New York that indicated that inequitable separation agreements would be stricken down by the courts. Unlike the Litigator, the Mediator has no vested interested in controversy. If the couple opts to litigate, instead of mediate, the mediator cannot represent either party in the litigation against the other. This would be unethical.
Unlike litigation, the couple has power over every aspect of the mediated separation agreement, including custody, child support, and visitation rights. More novel approaches to these arrangements can be undertaken than might be taken in a court of law. A judge does not hand down a judgment. Thus, for example, more complicated visitation schedules can be devised. Either spouse can withdraw at any time.
The process itself is much more amicable. The couple meets together at the Mediator’s office outside of the courtroom. They try to work out their differences with the help of the mediator. They set the groundwork for their future partnership that is often necessary to raise their kids. If the Mediator is a good one, the mediator will see that it is in the couple’s long-term interest to preserve their relationship as people, family, and friends even though they will no longer be romantic partners. The mediation process is much better for children than the litigation process, which by its nature sets husband against wife and wife against husband as plaintiff and defendant.
The time saved by mediation is significant. A divorce may last six months to two years or more. Grounds are necessary to obtain a divorce. A separation agreement can be drafted in three months or less. A couple with a separation agreement will have most of the benefits of a divorced couple, except that they cannot remarry during the one year period that New York requires to convert the separation agreement into a technical divorce.
There is some confusion in the mediation profession. Lay mediators (those without a law degree) cannot “practice law.” Lawyers must practice competent law. I was surprised to find that some mediation classes for lawyers advised lawyer/mediators from advising couples on the law. I contacted the New York Ethics Board to find that lawyer/mediators were still responsible for the competent practice of law while working as mediators. They remain responsible and liable. Make sure that your lawyer/mediator does not subscribe to the point of view which holds they are not to advise you. What is the point of hiring an attorney as a mediator if they cannot advise you and handle a divorce competently?
At the same time, there are some lawyers (often litigators who stand to make a great deal of money from contentious divorces) who strenuously object that lawyer/mediators have an inherent conflict of interest when they prepare separation agreements for a couple, given their divergent interests. For this reason, many lawyer/mediators always advise that a couple have their own lawyer look over a separation agreement before signing it.
Once a separation agreement is drafted, each party can bring it to his own attorney for review and advise him/her whether or not to sign it. The advantage of this process is that the second lawyer is hired to look out only for your interests, not the interest of your spouse. Thus, you get a double check upon whether or not signing the mediated separation agreement is in your interest. This is usually a worthwhile expenditure.
However, there are a few precautions one should take. First, some lawyers are notoriously litigious and think they can always get you a “better deal.” They try to “stir the pot” and advise against signing any mediated separation agreement. The cost of the better deal can be considerable. There may be tens of thousands of additional attorney fees to pay. There may be an equally ambitious lawyer trying to get a “better deal” for your spouse whose efforts will cancel out your attorney’s efforts. The actual deal may ultimately not be worth the cost of paying to get it. If the mediator is worth her salt, she will generally give the couple a good idea of how things would generally turn out in court anyway. While most of these attorneys are trying to act ethically, it needs to be borne in mind that they only make several hundred dollars going over a separation agreement v tens of thousands of dollars in a contested divorce.
A legal memo may be a good investment in some cases. An attorney can research similar fact patterns to your own and tell you what would probably happen in your case. This can help guide you.
The mediation itself should cost somewhere from $500 to $3,000 depending on the complexity of the issues. The drafting of the separation agreement should take from $500 to $3,000. Often portions of the agreement have to be redrafted or negotiated, which can cost from $500 to $2,000. The review of the separation agreement should take only several hours and cost less between $500 to 1,000 each. The range for this kind of mediation would be $1500 to $8,000 with $1,000 to $2,000 extra for outside lawyers to review the mediated agreement. The range would therefore be $2500 to $10,000. Each member of the partnership would pay half that amount.
LITIGATED DIVORCE:
(I would rate this approach C minus to D in most instances; in some instances, it should be the preferred approach and I would rate it B minus to A/B accordingly). Generally, I would advise against a litigated divorce in 90% of cases. I will explain the exceptions in a moment.
There are several tremendous disadvantages with respect to the litigated divorce. Litigated divorces, in my experience, cost anywhere from $20,000 apiece (if the couple is lucky) upward to $80,000 apiece where there are complex custody and estate issues at stake. A couple can end up spending their child’s college education upon a divorce. ($40,000 to $160,000). As we all know, wealthy individuals can spend a lot more than this. One must convince a court that one spouse has done the other spouse wrong, which can get ugly. (Ex. Adultery, cruel treatment, abandonment, sexual abandonment).
The retainer for both the husband and wife can be significant, anywhere from $5,000 to $10,000 just to get a lawyer to take your case. A single motion may cost from $3,000 to $8,000. During the course of a litigated divorce, several motions may be made. The spouses are rarely told the exact amount a divorce will cost because it is difficult to know how the “battle” will go.
Worse, litigated divorces are extremely contentious. One partner must literally sue the other partner. One becomes the plaintiff. The other becomes the defendant. Each partner’s attorney must represent his client “zealously within the bounds of the law”. This generally means that each attorney is struggling hard for an advantage over the other guy’s attorney. This usually translates into a lot of legal bills.
There is an ugly little secret in the legal profession, namely that the attorney has a direct, inherent conflict of interest when he/she takes a divorce between the couple’s interest and their own financial interest. If he/she settles early and spends less of his client’s money, he earns less. Contention breeds attorney dollars! While many practitioners will put the interests of their clients over their interest in their wallet, some will not. Many force issues to the courthouse steps in an out-and out war to bring the other party to his/her knees. Hundreds of thousands of dollars have been wasted in this way.
In my opinion, there are only a few situations where litigation may be worthwhile and necessary. Those situations are as follows. If a couple cannot come to an agreement with respect to which parent will have “residential” custody of the children, litigation may be necessary. In other words, Dad wants the kids to live with him; Mom wants the kids to live with her. In that case, the New York rule is that the judge will place the children in the residential home, which is in the “best interest of the child.”
When one member of a couple is hiding significant assets, a litigated divorce may be advantageous to mediation. A litigated divorce makes several handy legal tools available. These are called the “discovery devices.” A lawyer involved in litigation can require the other side to answer written or verbal questions under oath and/or produce critical documents, including bank account records, stock records etc. This can be extremely helpful. Judges can hold litigants in “contempt of court” when they lie or do not answer discovery requests.
However, it bears emphasis that a professional Lawyer/Mediator can require these same documents and can add a clause to a separation agreement that it is void if significant assets have been hidden by either spouse. Thus, a Mediator can invoke safeguards similar to those found in litigation.
When it is clear that a woman or a man is entitled to maintenance (support), once called alimony, and the other partner refuses to give it to them, litigation may also necessary. At the same time, it would probably be best for the partner attempting to resist maintenance to get a legal opinion regarding whether he will likely be required to pay it rather than spending needless dollars “duking it out” when he did not have to do this.
When the law makes it clear that certain property is separate property or that one partner is entitled to part of a degree, and the other partner refuses to believe this, litigation may be necessary. However, if each party has hired an attorney worth his/her salt, he/she could obtain a legal memo on any matter of concern to determine the likely outcome in a court of law and litigation would be unnecessary. It is unwise for lay persons to attempt to outguess their attorneys. Written material is far more reliable than verbal advice.
When one party will not agree to a separation agreement (“no fault divorce”) a litigated divorce may be the only way to obtain a divorce. However, grounds in New York State must still be proved.
DO-IT-YOURSELF DIVORCE WITH LEGAL COUNSELING:
(I would generally rate this approach a D to an F, if the couple’s assets are considerable, if valuable licenses or degrees were earned during the marriage, or if there is a discrepancy of income between partners). However, the next step up from a do-it-yourself divorce without legal counseling, would be a do-it yourself divorce with the assistance of counsel. In this case, the couple would handle the bulk of the paperwork, but would consult an attorney before signing a separation agreement.
An individual seeking to divorce would be well-served to pay for at least a one to two hour legal counseling session with an attorney to obtain an idea of the rules of law that the courts will apply. Attorney rates currently range between about $250/hr. to $450/hr. One should make sure that the attorney consulted deals regularly in the field of divorces and separation agreements and that he/she is acquainted with the Domestic Relations Law, equitable distribution, child support, and maintenance (“wife” support once known as alimony). The attorney can also check over the paperwork prepared by the couple and handle filing etc. This could take the attorney another two to three hours.
Couples often wrongly assume that their divorce is a “simple matter.” Later, once the rules of divorce are explained to them, they are shocked to learn how the rules differ from their assumptions. That is why it is a good idea to seek the counsel of a qualified attorney in nearly every case even if you believe matters are simple.
If one can get an attorney to agree to this arrangement, the cost would likely be under $2,000. Many lawyers may not be willing to half handle a divorce in this manner due to the liabilities involved and the fact that it can be nearly as much work to review a client’s work as to do it oneself.
This approach is generally not recommended for people with children, people fighting over custody, people with significant assets, or people with significant discrepancies in their education and/or earning capacities. However, it is better than trying to handle a divorce by yourselves.
MEDIATED DIVORCE USING LAY/NON-PROFESSIONAL MEDIATION:
(I would generally rate this approach from a D minus to an F). Using a lay mediator without the requisite knowledge of divorce law is generally a bad idea. Expensive mistakes can easily be made. In this approach, a “mediator” “handles” the couple’s divorce. I do not really know why this approach is allowed in New York at all. Given the complexities of divorce, custody, and related laws, the services of a professional attorney are strongly recommended. Lay mediators are essentially attempting to “practice law” without a license. This relatively new profession defends itself by explaining that its representatives do not give legal advice. They allegedly do not, but if this is the case, how can a competent job be done when the rules of divorce are needed to properly divorce a couple? Lay mediators are trained to simply help the couple “resolve their differences.”
However, there are complicated questions involved with divorcing couples, such as: “Which property can be considered my separate property and is not subject to the divorce laws?” “Which property is subject to division i.e. equitable distribution?” “How much child support must I legally pay?” “Am I entitled to maintenance/alimony in light of my circumstances?” “Can I receive compensation for putting my wife through medical school during our marriage?” “Can I keep my pension?” Some of these questions are worth tens of thousands of dollars. A qualified professional should answer them.
Obviously, lay people dealing frequently with divorces may learn a thing or two about the law. This can actually make them that more dangerous. They will sound like they know what they are doing, but they will not be versed in the law. If one were getting a heart operation, would one ask a lay person to do it? I don’t think so. Indeed, would one feel comforted when that lay person exclaimed, “Not to worry, I don’t really practice medicine, but I’ll perform this operation anyway.” To that I say, “Yikes!”
You get what you pay for. Be careful. One may see lay people offering mediated divorces for less than one thousand dollars. It is tempting to get a “cheap divorce.” But you may be stuck with the consequences for years to come. Lay mediators can make hundreds of thousands of dollars of mistakes. For example, what if you were a candidate for maintenance and they did not tell you this? This approach may be a step up from doing it yourself, but it’s generally a bad idea.
DO-IT-YOURSELF DIVORCE WITHOUT AN ATTORNEY/INADVISABLE:
(I give this approach an automatic F). Some couples opt to do it themselves. The Courts offer a do-it-yourself divorce kit, complete with forms. It is generally not a good idea to do-it yourself when it comes to divorce. The laws of divorce in New York are quite complex and often surprising. A man or a woman can overlook important legal considerations and put themselves at a significant disadvantage when they file their own papers. For example, a couple might not realize that degrees earned during the marriage can be considered marital property, subject to what is known as “equitable distribution” or a fair distribution, given the couple’s unique circumstances. A man or woman may not realize that even though the marital home is in his/her spouse’s name, he/she has an equitable interest worth tens of thousands of dollars in it.
It is inadvisable to do it yourself when you have children, significant assets, or one partner has considerably less education, earning capacity, or desirable living conditions than another. Indeed, I would generally advise against a do-it-yourself divorce in most, if not all circumstances.
Obviously, the big advantage of a do-it yourself divorce is the cost. The kit can be obtained for next to nothing. The couple would be subject to filing fees for the separation agreement, which would be minimal.
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