You will need a contested divorce attorney when you and your spouse cannot agree on all issues related to the divorce. Many are of the opinion that a divorce is contested when one of the spouses does not like to divorce, but this is rare. Spouses usually agree to separate and divorce. However, these divorcing spouses usually cannot agree on issues regarding the amount of maintenance, child custody, child support, and division of marital assets and debts. For this reason, contested divorce occurs and you need a contested divorce attorney.
What does a contested divorce attorney do
Even before filing for divorce, you will need a contested divorce attorney when you have issues regarding maintenance, child custody, child support, and division of marital assets and debts.
Although there are a lot of DIY uncontested divorce websites that promise you a divorce decree within three months, these websites will not be able to help you when you have contested issues in divorce. It is important to get a contested divorce attorney to represent you in negotiating a divorce settlement with your spouse.
A contested divorce attorney will begin work even before the filing of a divorce action. As much as possible, a contested divorce attorney will work hard to ensure that your divorce is uncontested. This is because a contested divorce before the courts can be very expensive. It will require discovery, court appearances, and the presentation of evidence, which can all add up in terms of legal fees. A good contested divorce attorney will attempt, as much as possible, to minimize your legal fee exposure by ensuring that you reach a divorce settlement that is agreeable to both parties. Yet, a good contested divorce attorney will also know if you are being short-changed with the proposed divorce settlement and advise you that it’s time to file a divorce action.
Spousal Maintenance (Alimony)
In New York, alimony is called maintenance. Courts usually consider several factors when determining whether one spouse should pay maintenance to the other. As a general rule, the courts consider the following thirteen factors:
- The age and health of the parties
- The present or future earning capacity of the parties, including a history of limited participation in the workforce;
- The need of one party to incur education or training expenses;
- The termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which results in a maintenance award lower than it would have been had child support not been awarded;
- The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
- The existence and duration of pre-marital joint household or a pre-divorce separate household;
- Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment;
- The availability and cost of medical insurance for the parties;
- The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
- The tax consequences to each party;
- The standard of living of the parties established during the marriage;
- The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
- Any other factor which the court shall expressly find to be just and proper.
However, the most considered factors are whether the spouses have children, the length of the marriage, and the income disparity. Usually, the higher-earning spouse does not want to pay maintenance. For this reason, maintenance is a contested issue in divorce proceedings.
Spousal maintenance (alimony) can be paid to the other spouse either before, during, or after divorce proceedings. Before divorce proceedings, when parties are on a trial separation and a divorce proceeding hasn’t been filed yet, one of the spouses can apply to the court for spousal support. Once awarded by the court, spousal support can only be modified by court order and terminates upon the issuance of a divorce decree. Pending divorce proceedings, the court may also choose to award spousal maintenance (which then terminates the order for spousal support issued prior to divorce proceedings). After divorce, the court may grant spousal maintenance either for a specific period of time or for life. In most cases, however, spousal maintenance is awarded for a set number of years based on a formula.
Computation of maintenance
The length of time maintenance is paid depends on the duration of marriage. Although below provides a general rule, there may be deviations depending on the thirteen factors mentioned above.
- If you were married between 0-15 years, spousal maintenance is paid from 15% – 30% of the duration of the marriage.
- For example, if you were married for 15 years, maintenance would be paid between 2.25 to 4.5 years.
- If you were married between 15 to 20 years, spousal maintenance is paid from 30% to 40% of the duration of the marriage.
- If you were married more than 20 years, spousal maintenance is paid from 35% to 50% of the duration of the marriage.
Income disparity is a major consideration in an order for maintenance. If the lower-income earning spouse earns 2/3 less than the other spouse, there will most likely be a maintenance order from the court.
There are two formulas in computing maintenance: one for couples with minor children where the payor is the non-custodial parent; and the other for couples without minor children. Computing maintenance always begins with income. However, there is a limit to the income subject to maintenance: $184,000 (net income after subtracting social security, Medicare, and taxes). If a spouse earns more than $184,000, the amount in excess of $184,000 is not considered in computing spousal maintenance.
During negotiations on divorce settlements, unlike child support, a spouse may waive spousal maintenance. Usually, waivers of spousal maintenance can be found in pre-nuptial agreements. A good contested divorce attorney may find a way to annul a spousal maintenance waiver in a pre-nuptial agreement.
A spouse can also waive spousal maintenance during divorce negotiations, for as long as such waiver is made with the advice of competent, independent legal counsel. It depends on what you can get in return. A good contested divorce attorney will guide you through this process to ensure you get the best deal in a divorce.
Child custody and support
Child custody is also a contested issue in divorce proceedings. Why? Because the person who is granted physical custody of the children is entitled to child support. For as long as you have the children 51% of the time, you will be granted child support. The spouse who has the children for 49% of the time or less can’t even request reimbursement of his expenses when the children are with that spouse.
In New York, the spouse granted child custody always depends on the best interests of the child. Any agreement on custody may be set aside by the court, if the court finds that such agreement is not for the best interest of the child. The court usually determines child custody depending on the following factors:
- Stability by continuing with current custody arrangements
- Child care arrangements
- Primary caretaker prior to divorce
- Exposure to drugs, alcohol, and other inappropriate material
- Mental and physical health of the parents
- Spousal abuse
- Abuse, neglect, abandonment, and interference with visitation rights
- Child’s preference
- Each parent’s ability to provide financially for the child
- Conditions in the home environment and relationship with others in the home
- Educational opportunities
- Where the child’s siblings live
- Parent’s failure to comply with court orders
- Any other factor the court deems relevant
Child support can be mandated by court order or by agreement of the spouses. Even if the spouses agree on an amount of child support, the court can set this agreement aside if such agreement on child support is not for the best interests of the child. To avoid high legal fees, spouses can usually agree on an amount of child support based on the formula provided by law. A good contested divorce attorney will be able to guide you on the proper amount to negotiate and agree on.
In determining child support, the combined gross income of the spouses based on the income tax return is used as basis, and the child’s living expenses are computed based on receipts. From the combined income, the court multiplies it by a percentage depending on the number of children shared: 17% for one child; 25% for two children; 29% for three children; 31% for four children; and 35% for five or more children. Thereafter, the court divides the amount based on the proportion of the individual income of the parent over the combined parental income.
For example, X and Y are married and have two children. Y’s income after deductions for purposes of child support is $50,000 yearly, while X’s is $30,000. X and Y’s combined parental income is $80,000. Since they have two children, child support is 25% of the combined parental income of $80,000, which is $20,000 annually. Since Y’s proportion of the combined parental income is 62.5% (50,000/80,000), Y’s share of the child support is 12,500 annually. X’s share is 37.5% (30,000/80,000), equivalent to 7,500 annually. Thus, Y, as the noncustodial parent, is required to pay $1,041.67 monthly of child support to X.
Although there is a formula, this amount can be increased or decreased depending on a number factors, such as the cost of living in the area where the child lives in, whether the child has special needs, and other considerations. If the combined parental income is $154,000, the court has two options: to use the same formula for all of the combined income or to use the formula only for the first $154,000 and to decide how much of the remainder should be used for child support given the financial resources of the parents, the child’s physical and emotional needs, the tax consequences of the child support, and the child’s standard of living if there had been no divorce.
Child support by agreement
Despite knowing the amount of child support based on state guidelines and what child support will be for, the parents may still decide on a different child support amount based on agreement. The agreement, however, must state that the parents have been advised of Domestic Relations Law § 240 (1-b) and Family Court Act § 413(1)(b) and that the basic child support obligation results to the correct amount of child support. This agreement also has to be accepted by the judge based on considerations of the best interests of the child and incorporated into the divorce decree or support order.
Division of marital assets and debts
The most contested issue in divorce is the division of marital assets and debts.
Separate vs. marital property
The first step in dividing marital assets and debts is to identify which properties are marital and which are separate. In New York, unless there is a stipulation in a pre-nuptial agreement, anything owned by the spouses prior to marriage is separate, while anything acquired by the spouses after the marriage is marital. However, when a spouse inherits something during the marriage, this is considered separate property.
When separate property is used to purchase another thing, that thing is still considered separate property. Sometimes, however, separate property can become marital property by transmutation. For example, money in a separate bank account is transferred to the marital account for the purpose of making it a joint marital asset. A good contested divorce attorney will be able to argue whether separate property was transmuted, making it into a marital asset, or simply commingled, retaining its separate property characteristic.
Equitable distribution of marital assets
Once marital assets have been identified, courts will divide it equitably and not equally. An equitable distribution of marital assets means that it will be divided fairly, depending on the following factors:
- The income and property of each spouse
- The duration of the marriage, age and health of both spouses
- The need of the spouse who has custody of the children to live in the marital residence
- The loss of inheritance and pension rights due to divorce
- The loss of health insurance benefits due to divorce
- Any court award of support or maintenance
- Whether the marital property is easily convertible to cash
- Difficulty in valuing assets, e., business shares
- Tax consequences of divorce
- Wasteful dissipation of marital assets during divorce proceedings;
- Hiding marital assets in contemplation of divorce.
Hiding marital assets
It is not unheard of that a spouse would begin transferring assets to a third person without consideration in contemplation of divorce, especially when the other spouse has no idea what properties that spouse has. This usually occurs with high net-worth divorces.
When you and your spouse cannot agree on the marital division of property, a good contested divorce attorney will be able to discover your spouse’s assets and financial information through many discovery tools, using statements of net worth, interrogatories, and depositions. Sometimes, an asset search company may be utilized in high net worth divorces.
Knowing your spouse’s financial assets will be key in determining how much a spouse can potentially receive in terms of child support and maintenance.
A contested divorce attorney will represent you in divorce negotiations and try, to the best of his ability, to reach a pre-filing divorce settlement. A good contested divorce attorney will take these interests into consideration more than the billable hours. Getting the amount you are entitled to is important in divorce negotiations. This is something that a DIY uncontested divorce website cannot help you with.
Should you need assistance in contested divorce issues, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.