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Thinking About Divorce–What to Consider First

September 26, 2019


You’re thinking about divorce. It’s a complicated process, whether you look at it emotionally, financially or legally.  You are likely feeling all different emotions, sometimes minute to minute it changes – anger, confusion, fear, hurt, maybe nothing.   This is totally normal.  It is very important though to make rationale, educated, and mindful choices before or in deciding how to proceed with a divorce.  In doing so,  there are an numerous  considerations to contemplate.  Where should you begin?     Here are just a few of the factors to weigh:

You’ll have personal considerations:

  • What are your demands at work? You may have a project deadline coming up, or a period when you’ll be unable to take time off. Also, assume you’ll be stressed, even if you don’t have a high-stress job. You may need a “me” day or two.
  • Do you have flexible scheduling to attend court dates? You may want to “clue in” your boss if s/he is empathetic and can give you scheduling flexibility.
  • Can you trust your spouse to be honest? If so, you can get information more easily and reliably. You may even wish to do some of the work together, and will have more procedural options.
  • Do you have children? Divorce is a family affair. No matter how careful or loving you are, your divorce will affect your children and their welfare is taken into account as a matter of law. Also, you may want to get help about how to share it with them.
  • What kind of relationship do you want with your children?
  • Are any of your children disabled or do any have special needs?
  • Is your future relationship with your spouse important to you? If you have children, you need a functional relationship with your ex. Even if you don’t need it for co-parenting, you may want it.
  • Is your spouse working? Is your spouse’s schedule flexible?
  • Are you and your spouse able to make decisions together? What types? You may work well together on a co-parenting schedule but be unable to discuss money without help.
  • If you’re in a same-gender relationship, does this affect your separation? This is not solely a personal question; it may also be a legal consideration (see below) .
  • Has there been violence in your relationship? If so, you may be hesitant about negotiating with your spouse and feel the need for help.
  • Are you able to sit in the same room with your spouse? If not, some procedural options may be foreclosed or unadvisable.
  • Is alcohol or drug use impacting the divorce? You may wish to share this with your lawyer, as another’s addiction affects you whether or not you’re aware of it.
  • Is either of you in a particularly challenging mental state right now? For example, are you grieving the death of a parent? Anxious about things at work? Your child’s situation at school?
  • How do you want to feel during and after the divorce? Depending upon the divorce process you choose, there can be great differences in how you feel if your case is litigated as compared to an out of court process such as mediation or the collaborative process.   How are made to feel during the process?  How you treat your spouse, how your children are treated, and how you want to feel about your spouse and the process once it is completed all may look and feel quite different after a litigation as compared to a mediated divorce or a collaborative divorce.

Also consider your financial situation:

  • How will you finance the divorce?
  • How will you pay for your expenses and the family expenses during the divorce process?
  • How complicated is your financial situation? If your assets are many and diverse, simply identifying them may be a substantial task. Then they must be valued — another substantial task — then divided. Even if you don’t need help, you may want it.
  • Do you have a retirement plan? Retirement accounts may need to be divided in divorce, and different plans have different requirements for division. If that is necessary, it is often easier with the help of a professional.
  • Do you or your spouse have special ways of being paid for your work, such as stock options, restricted stock units, bonus plans, commission plans, or the like?These forms of compensation are harder to deal with than a simple paycheck and require valuation.
  • Does either spouse operate a business? If so, its value may need to be determined and will likely be a factor in your divorce.
  • Are either your or your spouse self-employed? Are all the sources of income reported on Federal/State Income Tax returns?
  • Same gender couples: Are there special tax, legal, and historical considerations? Especially if you’ve been together a long time, your marital estate may well be smaller than your “relationship estate”.

What are your legal considerations?

  • Is filing first important to you? New York has “no fault” divorce, which means it makes no legal difference which divorcing party is the plaintiff and which the defendant. However, if it makes a difference to you, tell your lawyer.
  • Do you want a legal separation or a divorce? In New York, legal separation is available to spouses who no longer wish to live together. Like divorce, legal separation formally sets out the rights and duties of each spouse regarding child custody and support, spousal support and property division. However, there are differences
  • Do you need to consider jurisdictional issues? For a New York court to issue a divorce decree it must have jurisdiction over the parties and over the subject matter. Jurisdiction can be defeated by facts such as too brief a residence in New York, among other things.
  • Do you have separate property? This means property acquired before your marriage and not mixed with marital assets. If property is truly separate, it will not be included among the marital assets to be divided in divorce.
  • Do you have a premarital or post-marital agreement? Such an agreement is a contract that a divorce court must honor unless there is a legal basis to set it aside.
  • If you are in a same gender relationship, what is your legal relationship? Married? State domestic partnership? Something else?
  • Are you or your spouse under a restraining order?

These are all considerations that you can discuss with us during your consultation.


This post was originally published on 5/2/17.

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