What a New York City Divorce Attorney Would Tell Women About Divorce
The old adage that knowledge is power is true. Educating yourself about the divorce process early will prevent you from making costly mistakes later. If you are considering divorce, give serious thought to making an appointment for an initial legal consultation with an attorney to learn about your obligations and entitlements. Keep in mind that you do not need to retain the attorney after the consultation. Consultation time is limited. Be strategic. Come prepared with a list of questions.
As a New York City divorce attorney, I’ve spent some time thinking about 14 questions I would ask if I were a woman thinking about divorce. I urge you to consider them. And what’s more, read my answers as a foundation for learning about your specific legal choices, obligations, and rights.
Some important questions to consider asking a divorce attorney may include:
1. How do you handle combative adversaries and a combative Ex?
One of my former managers used to joke, “that if you get even one crazy person on the other side, your case is going to be a roller coaster ride.” That “crazy person” might be your Ex, your Ex’s lawyer, or both your Ex and their lawyer who feed off of each other’s insanity. Some attorneys love to fight. They will fight in emails. They will fight on phone calls. Others will fight with judges during court appearances. They may even argue with their clients at times. Try to suss out early how your lawyer will handle challenging adversaries by asking questions. Ask them to share examples of recent cases that they have worked on with similar fact patterns and personality types as your Ex-spouse.
A Real Example of a High-Conflict Divorce
For example, I had one former client whose husband was a bipolar narcissist. Those are big buzzwords these days, but he had a clinical diagnosis. Appealing to his belief that he was smarter than everyone else in the room was challenging, but it was part of our strategy. During three rounds of settlement talks, which lasted six hours each, we had to placate him by listening to his illogical, egotistical rants and diatribes. But my client secured a very sizeable amount in equitable distribution, and the case avoided court intervention because we placated his narcissism early on in the process to effectuate a mutually beneficial settlement. My client saved substantial time, stress, and money by sitting down in the negotiation room early on and settling the matter quickly instead of going to court. It was worth it.
Understanding Your Attorney’s Approach
Ask your prospective attorney whether they attempt to balance their temperament or prefer to “go nuclear” on opposing counsel. Good attorneys know how to be aggressive but fair, expeditious, and cost-effective when the other side is out for blood. Some lawyers prefer to keep educating combative adversaries on the law and attempt to settle. Others make it their mission to play hardball with the other side every step of the way. Determine what you need.
2. How do I maintain access to marital monies so that I can live and pay expenses (like college tuitions) if my spouse cuts me off from funds when we divorce?
This is a common and legitimate concern that many women have. Your spouse is not allowed to unilaterally stop paying for anything that they would have normally paid for during the marriage.
What the Law Can Do If Your Spouse Cuts You Off
In New York, when a divorce is commenced, the other side will be served with a Summons and Notice or a Summons with a Verified Complaint along with the Automatic Orders. The Automatic Orders prohibit either party from taking someone off of their current health insurance policy and prohibit the transfer of certain types of funds. If your Ex refuses to pay for certain items like the carrying charges (maintenance, mortgage, and utilities) on the marital residence, you can file a motion with the Court to compel the other side to pay up. If there is a court order in place and the other side is still not making timely and necessary payments, you can file a contempt motion, which may include an application for reimbursement of your legal fees due to the other side’s non-compliance. Most judges are not pleased when a litigant violates their court orders.
Why Financial Preparation Matters
But the best solution to this problem is to save as early as possible so that you have a small cushion to get through the first few months (three to six months) of the divorce process if it is likely that your Ex will withhold necessary funds. The money will get sorted eventually, but there is an upfront cost that you need to be prepared for.
The earlier you start planning financially for a divorce, the better. Before filing for divorce, you may wish to consult with a financial advisor to help you create a monthly budget and to better understand the larger financial picture for your family.
Building Your Divorce Safety Net
Try to save enough money to pay your attorney, and do not expect that a court will award you legal fees right away. (They may, but it can realistically take several months before you obtain the court order.) If you need to, borrow money from a family, friend, or take out a loan for legal fees. Some clients even start GoFundMe pages to pay their legal fees.
3. How can I prepare in advance in order to move through this process as quickly as possible (6-12 months)? I am very fearful of this man.
Few cases move as fast as you would like, so you need to have reasonable expectations regarding speed. The cases that move very quickly are the ones with the least amount of assets and debt, and where the parties do not have children together. If you are leaving an abusive marriage, are fearful of your soon-to-be-Ex-spouse, and have a legitimate basis to believe that he would physically harm you or your children, you may wish to obtain an order of protection against him.
You would need evidence to support your claims. If you just want him out of your life and for the process to move as quickly as possible, you may consider waiving your right to certain financial assets that you would otherwise receive under the law in order to finalize the divorce as soon as possible and have the lunatic out of your life.
Many people settle for less than what they legally deserve to preserve their peace and to absolve themselves of future contact with their Ex. While I do not always recommend this because you could harm yourself financially in the long term for the short-lived peace of ending the matter, many abusers weaponize the litigation process to beat you down emotionally and drain you financially. Keep in mind that when you have children with someone, it becomes harder to completely sever ties. Again, this is a judgment call on your end, and many women prefer to prioritize their peace and mental well-being over an unknown and intimidating legal process that requires some level of interaction with their soon-to-be-Ex-spouse.
4. Can you take me through the process and sequence of a typical divorce action in my state?
There is no “typical” process because all cases and clients are different. But generally speaking …
An amicable divorce is one that can be worked out without any court intervention. You would mediate all issues with your spouse, or both spouses can hire attorneys to negotiate a settlement.
Both parties may conduct informal discovery, which may include exchanging statements of net worth and financial documents to ascertain what assets and debts the other side has. Then, an attorney will discuss with their client what the client is legally entitled to and construct a global settlement offer to the other side. The other side may accept the offer, reject it, or negotiate. Sometimes there is significant back and forth through negotiations. Once the parties agree on all of the terms, one attorney usually drafts the Divorce Agreement, and the other side will edit & redline it. After the divorce agreement is finalized, both parties will sign and notarize it. One lawyer will then submit the uncontested divorce packet to the court, and the parties will wait for the Judgment of Divorce from the judge. That is the typical process in an uncontested divorce that is not litigated.
What Happens When a Case Goes to Court
In New York, if one side files a Request for Judicial Intervention (RJI), you are heading to court whether you want to or not. In New York, the first court appearance will typically be in person, and all attorneys and parties must be present. At the preliminary conference (PC), the parties usually work out a temporary parenting plan, or the court will order a visitation schedule until the next court date and determine a temporary child support amount. The Preliminary Conference will result in a Preliminary Conference Order. That court order establishes a road map for your case. It will include certain tasks that the parties must complete, along with deadlines for those tasks. For example, the order will specify dates by which the parties must exchange certain types of discovery. This includes notices of discovery and inspection, interrogatories, and notices for depositions.
When a Divorce Becomes Contested
The reality is that often times there will be delays in litigated cases, and status conferences may be held. If the parties are not close to settling, the court will eventually assign a pre-trial conference date and trial dates on the remaining issues. This has now become a “contested divorce.” At any time during a contested divorce, the parties may settle. The court very much wants the parties to settle because they do not want to waste time, energy, and judicial resources conducting trials.
5. My income is $A, and my spouse’s income is $B. Do you have an approximate idea of the child support I might be entitled to? How long would I receive it?
This question depends on the law in your state. In New York, child support goes until age 21. In many other states, child support ends at 18 years old. Basic child support is a set monthly amount that the non-custodial parent must pay to the custodial parent. It is based on both parents’ incomes, and there is a set formula. There is also a cap on the amount of child support you can obtain. In New York today, the cap is $193,000. The formula is based on the Child Support Standards Act, and you can input both parties’ incomes with the number of children the parties share to yield the presumptive amount for annual and monthly child support. In theory, basic child support is supposed to cover housing, food, and clothes for the children.
The parties may also decide to deviate from the annual cap based on the needs of the children and their incomes. A judge may also decide to impute income in cases where one party’s income may appear artificially low on paper, but the party may be earning more money or likely is earning more money than the taxes show. Discuss potential deviations of child support with an attorney because if you do not ask for enough child support, you may end up living with a court order that is insufficient to meet your children’s needs for a long time.
In addition to basic child support, there are also add on expenses which can get very costly as children age. You should make sure that your Ex is also paying his pro-rata share of all add-on expenses. This includes your children’s unreimbursed medical expenses, extracurricular activities, childcare costs, tuition, and summer camp.
In New York City, you should also consider and negotiate tuition costs for a college education, including college admissions test preparation, college application preparatory courses, and room and board.
6. Do you have an approximate idea of the amount of alimony I might be entitled to? How long would I receive it?
Most attorneys will review your most recently filed tax returns, W-2 stubs, or 1099 forms to calculate spousal maintenance. There is a set formula in New York based on how much both parties earn and the length of the marriage. There are also a multitude of factors that need to be considered as to whether maintenance will be awarded at all and for the duration of the award.
It is important to understand that spousal maintenance in New York is rehabilitative. It is unlikely that you will receive maintenance until you or your Ex-spouse dies.
The theory behind maintenance is to provide some money and time for the non-monied spouse to obtain work based on their education, interests, and prior job experiences. If they do not possess an education and prior work experience, then they will need some time to obtain the necessary education and skills to enter the workforce.
Typically, the longer the marriage, the longer the duration of spousal maintenance. But it is also a fact-specific analysis depending on both parties’ health, whether there was domestic violence during the marriage, whether one party stayed home and raised children and forewent their career to raise a family, how many years away they are from retirement and access to Social Security benefits, whether they are currently self-supporting and gainfully employed or earn significantly less than their spouse.
If both parties earn roughly the same income, spousal maintenance awards are rare.
Spousal maintenance usually comes into play when there is a larger income disparity between the two parties’ earnings.
7. In general, our assets are A, B, C, and D. Do you have an idea of how they would be split?
New York uses the concept of equitable distribution. This is not synonymous with equal distribution. New York is not a community property state like California, where everything gets divided 50%-50%.
Assets and property need accurate valuations so you can determine the value of large-ticket items. Then, the parties negotiate the assets and frequently use offsets. If your husband has $300,000 in a pension and you want $100,000, maybe you do not want to waste money and time paying an expert to draft a QDRO for his retirement. Instead of taking $100,000 from his pension, you may receive the same value from another asset. For example, perhaps you receive an additional $100,000 from the net sales proceeds of the marital residence, or perhaps your husband transfers the $100,000 from his investment account.
Read “Divorce Property Division: Community Property States vs Equitable Distribution States”.
8. Please explain joint vs separate property.
Separate property includes assets earned before the marriage, inheritances, gifts from a non-party during the marriage, and personal injury compensation from a car accident or medical malpractice case. It also includes any increase in value of separate property when your spouse did not contribute to that increase. Lastly, if you have a divorce proof prenup or a postnuptial agreement, what constitutes separate property may be outlined in the agreement.
Marital property includes everything either spouse earns or acquires during the marriage, regardless of whose name appears on the title, from the date of marriage until one spouse files the lawsuit.
In plain English, this means that it does not matter that only your name is listed on a savings account, checking account, investment account, retirement account, or on a home, apartment, car, or boat. Your spouse is also entitled to a portion of that asset and vice versa because it is marital property.
9. What is your approach to cases? Do you consider yourself aggressive (a pit bull) or settlement-focused (amicable/collaborative)?
Always ascertain what your prospective attorney’s temperament is like. If your Ex is hell-bent on destroying you personally and professionally and does not care if the children also suffer in the process, you may need a pit bull. However, if you think your Ex can be reasonable, a settlement-focused approach such as mediation or a collaborative divorce is preferable to start. Should settlement negotiations break down and fail to gain traction, you may wish to consider retaining a new attorney once the case goes to court.
If you’ve come this far in reading, chances are you’d benefit from reading “The 55 Must Do’s on Your Modern Divorce Checklist.”
10. How much is your hourly rate, and what is your retainer? Is your retainer refundable?
In matrimonial and family law cases, attorneys usually bill legal work against the retainer, and they must return any unearned legal fees to the client. A lawyer may not keep money from you that they did not earn during a divorce proceeding. Some family lawyers may do flat fees for a prenuptial agreement or a post-nuptial agreement. Legitimate attorneys usually offer multiple payment options: payment via checks, credit card, cash apps, and wire transfers as payment options.
If a lawyer only accepts money in cash, run!
They are likely not paying taxes on their earnings. If they are dishonest with the IRS, it may be a sign that they are not above-board and are more likely to behave unethically in other matters.
11. Can my spouse pay for my legal fees?
In New York, if you are the less monied spouse, you can usually make an application (through motion practice) for the more monied spouse to pay a portion of your legal fees. Frequently, this is granted. But there are exceptions. If the judge thinks that you are acting unreasonably by unnecessarily delaying the resolution of the case or are filing motions seeking relief that you could have pursued more efficiently another way, they may deny the request for attorney’s fees. All cases are fact-specific.
12. How will my case be staffed?
Always ask this question. This is extremely important. There may be differences in work product based on the size of the firm. Bigger does not always equate to better! The reality is that all law firms are triaging matters based on urgency and deadlines. Firms have many clients, and usually they prioritize their money-generating cases. A firm may be busy with upcoming trials and motions. Costs will range significantly based on whether you retain a solo practitioner or a big law firm.
Who Will Actually Work on Your Case?
If you are working with a solo attorney, ask how much contact you can anticipate having with them versus their administrative staff and the hourly rate for administrative professionals. Your expectation should be that you will have significant direct contact with the attorney whom you met for the consultation. If you are hiring a law firm, you should ask what their attrition rate, aka “turnover” rate, is for associates and whether you can expect to speak and email regularly with a partner or associate on your case.
Ask for the hourly billing rate of paralegals and administrative staff. The larger the law firm is, the more likely it is to delegate your case to a young associate attorney for certain tasks. Are you comfortable with that? Perhaps you are fine with a newer attorney writing briefs and emails on your behalf, but do not want them to appear on your behalf in court proceedings, depositions, or trials. If you feel that way, you must let the attorney handling your consultation know. Otherwise, the law firm will staff your matter as it sees fit.
Communicate Your Expectations Early
Your desires should be communicated to the law firm as early as possible. Many law firms have poor retention rates, and nothing is more annoying than having to repeatedly explain the facts of your case to a new attorney because the prior one left.
13. Do you use AI to produce work product?
Be certain that your attorney is not relying solely on AI to educate themselves and the Court about the law. If your lawyer prefers to use AI in writing emails, that is very different from an attorney copying and pasting case law which cites to fake cases in legal briefs and motions. (Newsflash: Partners at Sullivan and Cromwell may charge approximately $1,000/hour and were recently caught citing AI in a legal brief!) All clients should expect that their lawyers double check that the cases cited to in legal writing are real cases, cited correctly, and have not been overturned by a higher court.
14. If I want to work with you, what are my next steps?
You will have to sign and date a Client Rights and Responsibilities form, a Retainer agreement, and make the initial retainer deposit. You should also set a date for a strategy call after completing the necessary paperwork and making payment.
NOTES
A zealous advocate for her clients, Meredith L. Singer is an experienced NYC divorce attorney who strives to keep legal representation affordable and accessible.
If you live in New York City or Brooklyn, schedule your legal consultation with Meredith by emailing her at meredithsingerlaw@gmail.com
You can also visit her website here.
If you are thinking about divorce, one thing we see making a significant difference for women is the conscious choice not to do it alone.
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*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”
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