Divorce Methods in New York

Ways to Divorce in New York State

By Carolyn Zenk, Attorney at Law / Certified Mediator Touro Law School/ Director of the East End Mediation Center

This article represents my opinion. It is not to be construed as legal advice. Each couple’s circumstances are unique. Different outcomes may be expected in the courts depending on the facts of your case. You are advised to seek an attorney's advice . Contact Carolyn Zenk Attorney & East End Mediation Center for more details.

Mediation helps parents become or remain friends so they can successfully raise their children in a loving way.

Summary of Ways to Divorce in New York

There are several ways to obtain a divorce in New York State. These include: divorce mediation using an attorney/mediator for both of you without each spouse consulting his or her own attorney, divorce mediation using one attorney for both of you with an outside review by your own personal advocacy counsel, divorce litigation, collaborative divorce, mediation using a lay mediator without a law degree, “do it yourself” divorce, and negotiation of a separation agreement using two individual attorneys.

This article discusses the pros and cons of several approaches. It is advised that you consult an individual divorce attorney regarding the specific circumstances of your case to obtain the advice that is the best for you. This article should be used for general guidance only. Consult your own attorney before you divorce to protect your rights.

Let me begin with what I consider the two most desirable approaches to a divorce and follow 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

If your focus is to protect your legal rights, while saving as much money as you can, a husband and wife may jointly hire an attorney/mediator, who is willing to acquaint you with the Domestic Relations Law, and who answers to both of you, without an outside independent review by an attorney of your own.

The professional mediator/lawyer has an ethical duty to act competently with respect to your rights and is prohibited by law to draft an unconscionable (unfair) agreement. Make sure that your attorney-mediator is willing to go over the law with you.  This takes more time but is well worth the added expense. Make sure both names are on the retainer to ensure the attorney answers to both of you.

In this approach, the attorney/mediator advises the couple regarding the law, mediates the issues involved, and writes up the separation agreement. Neither spouse uses their own personal counsel. This saves money.

The mediator may advise the couple to seek outside legal advice before they sign the agreement. Why? It may further protect each spouse's rights. It also protects the mediator.

Currently, there is a tension between litigators and mediators in the legal profession. Litigators claim that there is an inherent conflict of interest when a couple uses the same mediator/lawyer.  Mediators counter that litigators may only be saying this because mediation saves couples tens of thousands of dollars that litigators may never earn.

If you have identified a qualified legal mediation professional, and not a mediator without a law degree who does not have the legal expertise necessary to guide you through the process, this process should cost the couple from $4,000 to $8,000 depending on the complexity of your finances and custody/visitation arrangements. The couple can share this cost equally or on a pro rata basis, i.e. in proportion to his or her income to combined income. 

Be careful not to hire mediators without law degrees. They are deceptively inexpensive because they are not allowed to practice law in New York State without a license and cannot advise you regarding the law. Serious mistakes are often made using lay mediators.

Mediated Divorce Using Attorney/Mediator with Separate Lawyers Reviewing the Draft Separation Agreement before it is signed.

In 90% of cases, this approach is probably the optimal approach from a legal point of view. There is a downside with respect to expense because you must involve three lawyers who must be paid. Under this approach, the couple engages a mediator/attorney to negotiate and prepare a separation agreement for them.

This individual answers to both spouses. 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 compared with a litigated divorce. Tens of thousands of dollars can be saved by using this approach. The couple has the advantage of having a professional who knows the law at his/her service and who can advise them accordingly.

The couple shares the mediator’s bill, cutting his or her costs in half. The mediator must be neutral and cannot take sides. Therefore, the separation agreement cannot be biased toward one partner, unless the spouses themselves wish to favor one spouse over the other.

Inequitable separation agreements can be stricken down by the courts. 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.

The mediations themselves usually take from six to ten 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.) Writing the separation agreement can take from six to ten hours. 

Unlike litigation, which can be decided by a judge, the couple has power over every aspect of the mediated separation agreement, including the division of marital assets, custody, child support, spousal support, and visitation rights. A judge does not hand down a judgment against the couple's will.

In mediation, more novel approaches to custody and visitation arrangements can be undertaken than would be taken by a judge. For example, rather than the "winner take all" approach to custody and visitation, which currently exists in the courts, each spouse can agree to spend equal time with their child(ren).

Either spouse can withdraw from mediation at any time. They simply have to pay for the work accomplished before they informed the mediator they have chosen to litigate instead.

The mediation process is much more amicable than litigation. The couple meets together at the mediator’s office in private. They try to work out their differences with the help of the mediator. They set a peaceful groundwork for their future partnership, which is necessary to raise their children.

If the mediator is a good one, the mediator will recognize 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. A good mediation process helps the couple to learn how to peacefully resolve any problems, which may arise.

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. Let's face it; suing your partner does not engender good will.

The time saved by mediation is significant. A divorce may drag out in the courts for one to two years or more. A separation agreement can be drafted in several months depending on how frequently the couple wants to meet and whether they quickly provide the mediator with the paperwork she needs.

A couple with a separation agreement will have virtually all of the benefits of a divorced couple, except that neither spouse can remarry during the one-year period that New York requires to convert the separation agreement into a divorce. NY policy requires one year to encourage reconciliation. Couples can often take advantage of health insurance benefits during this separation period.

There is confusion regarding the types of mediation services being offered to couples. Lay mediators (those without a law degree) cannot “practice law.” They advertise cheap divorces, which are "too good to be true." They are. You get what you pay for.

Attorney mediators must practice competently. Therefore, their process takes longer because it involves sharing considerable expertise with the couple. Therefore, it is more expensive.

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 inform you about the applicable law and handle a divorce competently?

There are 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 the spouse's divergent interests.

For this reason, many lawyer/mediators always advise that each spouse has 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. It's advisable that the advocacy attorney be informed that they will not be retained in the event the couple decides to litigate to remove any vested interest from their opinion.

Outside counsel can advise him/her whether or not to sign the agreement. The advantage of this process is that the second lawyer is hired to look out only for a given spouse's interests, not the interests of your partner. Thus, in mediation, you can get a double check upon whether or not signing the mediated separation agreement is in your best interest.

This is usually a worthwhile expenditure. However, there are a few precautions one should consider. Some lawyers are notoriously litigious. They think they can get you a “better deal.” They try to “stir the pot” and advise against signing any mediated separation agreement. The cost of the alleged "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 "better" 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 courtroom anyway. While most litigation 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 hotly contested divorce. 

A legal memo on a controversial point of law may be a good investment for you in some cases. An attorney can research cases involving couples who had similar fact patterns to your own and tell you what the outcome in their case was and what would probably happen in your case. This can help guide your decision.

The review of the separation agreement should take only several hours at the hourly rate that attorney charges. Your counsel may wish to write the mediator a letter or call the mediator to bring legal or factual matters to her attention.

Litigated Divorce

Generally, I would advise against a litigated divorce in 90% of cases. There are exceptions where litigation may preferable. Generally, litigated divorces begin with each spouse paying a $7,000 to $10,000 retainer. Litigated divorces cost anywhere from $10,000 apiece (if the couple is lucky) upward to $80,000 apiece where there are complex custody and estate issues at stake. A single motion may cost from $3,000 to $8,000. During the course of a litigated divorce, several motions are usually made.

The spouses are rarely told the exact amount a divorce will cost because it is difficult to know how the “battle” will go. A couple can lose their home or spend their child’s college education in litigation.

Wealthy individuals often spend a lot more. Some litigants try to convince a court that one spouse has done the other spouse wrong, which can get ugly. For example, they may try to prove that one parent is abusive, negligent, or unfit as a parent in order to obtain custody of the children. The Department of Social Services can get involved. The case may turn criminal and get even more expensive. This can easily destroy a relationship forever.

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 spouse's attorney. This usually translates into more legal bills. There is an ugly little secret in the legal profession-namely that a litigation attorney has a direct, inherent conflict of interest between the couple’s interests and his or her own financial interests.

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 client over their interest in their wallet, some will not.

Many litigators unnecessarily force issues to the courthouse steps in an out-and out war to bring the other spouse to his/her knees. Hundreds of thousands of dollars have been wasted. In my opinion, there are only a few situations where litigation is worthwhile and/or 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 most of the time or Mom wants the kids to live with her most of the time. Neither is willing to compromise. In that case, the New York rule is that the judge will place the children with the parent based on the “best interest of the child.” A "winner take all approach" is the general rule in the courts.

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, namely the “discovery devices.”

A lawyer involved in litigation can require the other side to answer written or verbal questions under oath (depositions) and / or produce critical documents, including bank account records, stock records etc. (notices to produce).

Spouses can demand that written questions be answered under oath by their spouses. These are called interrogatories. These discovery devices can be extremely helpful. Judges can hold litigants in “contempt of court” when they lie or do not answer discovery requests.

Forensic experts can be hired to determine the wealth of a litigant who is not forthcoming with the value of his assets or income. These devices add considerable time and expense to the proceedings.

It bears emphasis that a professional lawyer / mediator can require these same documents. At East End Mediation Center, I usually add a clause, which indicates that if a spouse hides marital assets within the mediation process, those assets will be split 60%-40% in favor of the honest spouse rather than say on a 50%-50% basis. 

Thus, a savvy 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.

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” in the courtroom when he is likely to lose the issue anyway.

When the law makes it clear that certain property is separate property and does not have to be shared or that one partner is entitled to an equitable share or fair share in marital property, 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. 

Do-It-Yourself Divorce With Legal Counseling

I would advise against a do-it-yourself divorce in all cases, but especially for longer marriages, marriages involving children, and marriages with considerable assets. If you insist upon going this route to save money, do yourself a favor and at least consult an attorney for two hours or so to determine what your rights are so you avoid painful, expensive mistakes.

Huge blunders are often made in do-it-yourself situations. For example, you may share an inheritance believing that it is marital property. (It is separate property and does not have to be shared.)

You may have a right to spousal support and waive it by mistake. You may agree to less child support than you are entitled to under New York State law. An individual seeking to divorce would be well-served to pay for at least a two-hour legal counseling session with a competent divorce attorney to obtain an idea of the rules of law that the courts will apply.

 Attorney rates currently range between about $300/hr. to $450/hr. in New York. 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 (“spousal support" once known as alimony).

The attorney can 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.” Divorces are not simple.

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 your case is simple.

If one can get an attorney to agree to a limited representation 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. 

Non-Professional Mediated Divorce Using Layperson 

Using a lay mediator, without the requisite knowledge of divorce law, is a terrible idea. The price tag will be enticing, but "you get what you pay for." Expensive mistakes can easily be made. In this approach, a “mediator” without a law degree “handles” the couple’s divorce.

I do not know why this approach is allowed in New York. Given the complexities of divorce, custody, and related laws, the services of a professional attorney are critical to a competent agreement 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. 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," without informing them of the law, which is a bad idea, which leads to regrettable mistakes.

NY gives couples the "freedom to contract." 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?” Many of these questions are tens of thousands to hundreds of thousands of dollars.

A qualified professional should answer them. With a lay mediator, you may never be informed that you are entitled to thousands of dollars in spousal support every month.

You might inadvertently give away half a house you did not have to share because it is your separate property, which you acquired before the marriage or fail to take half the value of a house, purchased during the marriage because you incorrectly assumed it was your partner's because it was put in his name alone and you were never advised that New York is not a "title state."

Obviously, lay people who deal frequently with divorces may learn a thing or two about the law. This can actually make them more dangerous. They will sound like they know what they are talking about, but they will not be fully versed in the law.

If one were getting a heart operation, would one ask a lay person to do it? 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. You can save a lot of money by using my services?”

“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 in mistakes. 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

Some couples opt to do it themselves. The Courts offer a do-it-yourself divorce kit, complete with forms. It's generally not a good idea to do-it yourself The laws of divorce in New York are complex and often surprising.

A man or a woman can overlook important legal considerations and put themselves at a significant disadvantage if they prepare their own papers.

For example, 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 in it worth tens of thousands of dollars if it was obtained during the marriage.

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 the other spouse. Indeed, I would generally advise against a do-it-yourself divorce in every case.

Obviously, the one 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. However, I'll say it again. "You get what you pay for." 

Conclusion 

In my opinion, the best way to divorce or separate in New York in 90% of cases is for the couple to jointly hire an attorney-mediator, who is willing to thoroughly discuss and research, if necessary, the law applicable to their case, help them determine separate property (property which is not shared) from marital property (property which is shared), custody, visitation, health insurance coverage, child support, and spousal support, where applicable.

For an extra precaution, the draft separation agreement may be brought to each individual's separate counsel for review to double check that each spouse's rights are protected before the final document is signed. However, this is not usually necessary as the attorney-mediator answers to both spouses. Where money is the primary consideration, hiring a lawyer-mediator willing to acquaint you with the law in your case, is a good option.

 If you want the proverbial "belt and suspenders" and protecting both your legal rights and your wallet are both prime considerations, hiring an attorney / mediator together to prepare a draft separation agreement, and then each hiring your own counsel to review it is another good option, but it is more expensive.

Litigation is the recommended option where the couple can no longer deal reasonably or fairly with each other, one parent is abusive, negligent, or unfit to be the custody parent, and custody cannot be worked out, or where a spouse is dishonest about his or her income or is hiding assets and/or income. For the most part, litigation should be the exception rather than the rule. It is wildly expensive, with an uncertain outcome.

In conclusion, in 90% of cases, the mediate divorce, using competent counsel, who takes the time to advise the spouses on the law and look over the paperwork involved with your assets, is vastly superior to the litigated divorce because it is much less expensive, contentious, time-consuming, and emotionally damaging- both to the spouses who have loved and often still love one another- and to their children.

Carolyn Zenk is a Certified Mediator. She is the Director of the East End Mediation Center in Southampton, New York. She has handled dozens of separation agreements and several litigated divorces. She prefers to mediate when possible because she believes it is usually in the clients' best interest both economically and for long-term happiness. East End Mediation Center and her law practice are located at 143 West Montauk Highway, Hampton Bays, New York 11946. You can call for a free fifteen-minute phone consultation at (631) 723-2341.