Divorce and Litigation Bullet Points Part 1

If you’ve been staying tuned with my blog recently, then you’ll know that I’ve been creating a list of blogs highlighting key points in divorce mediation. These guides are designed to give you easy access to important information about mediation in a bite-sized package. Now, I’m going to be looking at more traditional divorce representation, that in which the lawyer is representing a client as their advocate, in a similar fashion, highlighting key points for you in an easy-to-read format.

This is the first of what is likely to be a number of lists about divorce litigation, and it will be looking distributing debts and assets, the concept of filing for divorce, maintenance, child custody, child support and more.

Divorce and the Latest Distribution Laws

One of the major issues that couples need to address when getting divorced, is how they’re going to handle the distribution of assets. This includes dividing not just important assets like belongings and the family home, but also deciding who should be responsible for debts after the marriage is over.

• The new federal tax law finalized on the 31^st of December 2018 has pushed a lot of divorce lawyers, including myself, to consider different tax allowances for clients. In the past, tax deductions that could be acquired for the payor on maintenance were often seen as an incentive. However, now, the new rules mean that people can no longer claim federal tax deductions on their maintenance and support payments (the New York State deduction for maintenance aka alimony still remains). This could mean that it is somewhat more complicated today to arrange the right maintenance strategy since the New York State maintenance guidelines were made at a time that these payments were deductible. This can allow for an argument about a deviation from the guidelines in determining maintenance.
• When it comes to distributing debts as well as assets and other aspects in a divorce, all debt that exists at the time of filing for divorce is usually considered. Typically, debts taken on after the divorce case has been filed will not have traction in these cases. However, there are exceptions to this rule. However, one side or the other needs to be able to show evidence that the debts incurred are “marital” in nature.
• Deciding which debts should be considered “marital” and which can belong exclusively to an individual isn’t always easy. In some cases, it may be necessary to prove that one spouse did not agree to the debt that the other acquired. Alternatively, it could be that the spouse needs to show that they did not make use of the money borrowed for the debt, or that the money wasn’t used for something that benefited both spouses – like improvements to a family home.

Arguing Your Case with Divorce Litigation

When someone visits my office to discuss their options regarding divorce, I’ll always talk them through the range of solutions that are available, from meditation, to litigation. While mediation and collaborative law can be more appealing to some, it’s also possible that some people will need the litigation process.

• In some situations, my clients will want the impact of filing for divorce with an attorney and having papers served to the other party. When this happens, it’s possible to either continue with the divorce using litigation, or the party may choose to serve the papers and then consider mediation, collaborative law, or another form of divorce process. We can also consider things like pendente lite motions for things like child support and maintenance while the divorce is pending.
• If a divorce is filed, family courts may not be able to also deal with child support and spousal support cases at the same time. In many cases, the family court will use its discretion to determine that a petitioner should not be heard while divorces are still pending. Examiners in the hearing often highlight that it is important to see how a case plays out in the supreme court first.
• However, there are also cases wherein the family court may decide that it will make rulings on support cases that happen before matrimonial cases begin. The courts will often indicate that it may be suitable to exercise jurisdiction because matrimonial applications haven’t already begun. This can also be the case when applying for child custody cases.

Appealing Child Custody Cases

Sometimes, the decisions made during litigation will not align with the choices that the parties in the divorce hoped for. This is often the case with child custody cases and parenting time scenarios, where parents will fight tooth and nail to get the outcome that they believe is right for their family. It is possible to take cases to court to ask for the decision to be appealed. However, in child custody and parenting time scenarios, the courts usually will only consider an investigation if a significant change has happened in the lives of the parents or the child.

• Notably, however, the appellate courts are very unlikely to interfere with any visitation or parenting times that have been set by the trial courts in your divorce (or family court cases). The appeal courts will usually uphold what they consider to be in the best interests of the children. Appeal courts are keen to avoid making significant changes to the orders laid out by the trial court in most, but not all, instances. The trial court has broad discretion in choosing the outcome in the best interests of the child.
• In any custody or parenting time situation, the main concern of the court will always be to determine what the best interests of the child might be. When determining initial petitions for visitation and child custody rights, the courts will need to consider who will deliver the best life for the child in terms of support and stability. This is true whether considering a relocation or other circumstances.
• When working with my clients on issues that involve parenting time and custody agreements, I always highlight the complexity involved in making decisions that are deemed to be best for the child. In order to make a modification there needs to be a substantial change of circumstances when the best interests of the child have already been agreed upon or considered by a court.

To learn more about anything that you read in this bullet point roundup, please check out our blog pages, or contact my office. If you would like to discuss your own divorce or other case, you can contact me for your free half-hour consultation at (516) 333-6555 or using one of our contact forms.