Long Island Family Law and Mediation Blog
I don’t, per-se, put an expiration date on a matrimonial difficulties letter unless my client and I specifically think this is required. I also don’t like watching a client spend months in a holding pattern because everyone keeps saying they are working toward settlement while very little is actually getting settled. “Matrimonial difficulties letter” is the term I use for the short letter I may send to a client’s spouse to open communication about resolving their marital issues. Sending it does not itself start a divorce case. My usual objective is to explore whether we can negotiate a separation agreement before filing as if we can execute a separation agreement, then we can say that everything is resolved and we can file for an uncontested divorce. Among other benefits, less legal fees and better pricing options are usually available for an uncontested divorce.
Sometimes the other spouse retains an attorney and we make meaningful progress. Sometimes I ask for financial information several times and still don’t have it. The spouses may also get close to resolving one issue, then discover they remain far apart on another. Sometimes, however, my client and I need to consider whether continuing those discussions serves my client’s interests or whether it is time to commence a divorce action. Filing has legal consequences, and it provides a way to bring unresolved issues before a court. Understanding that transition can help a client make an informed decision about the next step.
When Do We Stop Negotiating Before Filing?
I look at whether anything is actually moving. If I have repeatedly requested the statements needed to understand a retirement account and am still waiting, that matters. The same is true when everyone says they want to settle but nobody will commit to terms concerning the house, support or parenting arrangements. Negotiations can take time even when both spouses are participating in good faith. There may be financial records to gather, a business to value or proposals that require careful consideration. I do not assume that a disagreement or a delay means the effort has failed. But, we also need to recognize when my client needs something the discussions are not providing. A spouse may need financial support while the issues are being resolved. There may be concerns about property, access to financial information or arrangements for the children that need prompt attention. Those circumstances can make filing appropriate even though we have not exhausted every possibility for settlement. In some cases, the need for court relief means we should proceed without first sending a matrimonial difficulties letter at all.
What Does Filing for Divorce Actually Do?
In New York, a divorce action is commenced by filing a Summons With Notice or a Summons and Verified Complaint. The spouse who starts the action is the plaintiff, and the other spouse is the defendant. Service is a separate step. The initiating papers must be properly served, and the spouse receiving them needs to address the applicable deadline to respond. Receiving divorce papers requires more immediate attention than receiving an earlier letter inviting settlement discussions. Filing also needs to be distinguished from getting the case before a judge for active management. Ordinarily, a Request for Judicial Intervention is the filing that results in assignment to a judge. Conferences, applications for relief and court-directed schedules involve additional procedural steps. Filing the summons does not mean that a judge immediately begins deciding the spouses’ disagreements. It does, however, commence an actual court action and have consequences that an attorney’s letter does not.
Automatic Orders Affect Financial Decisions
New York’s automatic orders bind the plaintiff immediately upon filing. They bind the defendant upon service of the automatic orders with the summons. These orders generally restrict certain transfers or disposal of property, transactions involving retirement assets, unreasonable new debts and changes involving insurance coverage or life-insurance beneficiaries. They are intended to help preserve property and existing protections while the action is pending. The restrictions contain exceptions and specific requirements. For example, the property-transfer provisions recognize customary household expenses, the usual course of business and reasonable attorney’s fees connected with the action. The orders do not mean that every bill must go unpaid or that every financial transaction is prohibited. I want my client to understand these restrictions before filing, particularly if they are considering a significant withdrawal, transfer or insurance change. A transaction that seems practical to one spouse may create a serious problem if it violates the orders. When consent or court permission is needed, that should be addressed before acting.
Filing Also Matters for Marital Property
Under New York Domestic Relations Law §236, marital property generally includes property acquired during the marriage and before execution of a qualifying separation agreement or commencement of a matrimonial action, subject to the exclusions for separate property. If there is no earlier qualifying separation agreement, commencement generally establishes the cutoff for acquiring marital property. That is one reason the timing of filing can matter financially, even while spouses are discussing settlement. The cutoff for acquiring marital property is different from the date used to value an asset. Filing does not necessarily freeze the value of every marital account, business or other asset as of that day. Classification, valuation and the ultimate distribution of property require their own analysis. For a client deciding whether to keep negotiating before filing, I need to consider those consequences alongside the prospects for reaching an agreement.
Financial Disclosure Becomes More Formal
Before filing, I may ask for tax returns, account statements and other financial records so that we can evaluate a proposed settlement. Those requests depend on voluntary cooperation unless another legal process applies. In a divorce action involving financial issues, New York law and court rules provide compulsory financial disclosure. A Statement of Net Worth identifies a spouse’s income, expenses, assets and liabilities. Supporting records can include tax returns, pay information, bank and investment statements, and retirement records. If information is missing or disputed, formal discovery procedures allow us to pursue it. The court can establish deadlines and address failures to comply with disclosure obligations. That can change a negotiation considerably. If the disagreement concerns a retirement account or the value of a business, we need enough reliable information to evaluate the competing positions. The court process provides procedures for obtaining that information when voluntary requests have not been sufficient.
Temporary Relief Can Address Problems While the Case Is Pending
A client still has a mortgage or rent due while the divorce is underway. The children still need care, and parenting arrangements may need to be established before the financial issues are resolved. When appropriate, a party can apply for temporary maintenance, child support, interim counsel fees, or temporary custody and parenting-time orders. The court considers the applicable law and the circumstances in deciding those requests. These awards and parenting arrangements do not arise automatically because someone files for divorce. They require appropriate requests and judicial determinations. The automatic orders governing property and certain financial conduct are different from an order directing a spouse to pay a particular amount of support or follow a parenting schedule. Divorce litigation is also not the only setting in which custody or support relief may be available. Depending on existing orders and the circumstances, Family Court may be an appropriate forum. Although, the family court is not available to file in for custody, parenting time or child support when a divorce is already pending. Part of advising my client is determining where and how to seek the relief needed.
The Court Helps Manage What Remains Unresolved
Once the case is before a judge, the preliminary conference helps identify what the spouses have resolved and what still needs attention. The court can address financial disclosure, scheduling and requests concerning temporary relief. Where custody is disputed, the court may consider appointing an Attorney for the Child or ordering a custody evaluation when appropriate. Those steps depend on the case; they are not necessary in every divorce involving children. The court can establish a schedule for discovery and further conferences so that unresolved issues move toward settlement or trial. The applicable rules and court orders guide that schedule, but clients should not assume that every contested divorce will finish within a particular number of months. The practical difference is that there are now procedures for addressing missing information, disputed requests and failures to cooperate. My client is no longer relying solely on the other spouse’s willingness to respond to correspondence.
Does Filing Mean We Stop Trying to Settle?
I keep negotiating after I file. In many cases, the court process gives us better information to negotiate with. Financial disclosure may finally produce the retirement statements we had been requesting. A temporary order may address immediate support needs while we work on the remaining terms. The spouses may resolve parenting arrangements while continuing to negotiate property issues. New York’s matrimonial rules also require attorneys, when both spouses are represented, to consult before the preliminary conference in a good-faith effort to reach agreement on the matters to be addressed. If a complete settlement becomes possible, we can work toward resolving the action by agreement. If issues remain disputed, the case can proceed toward a trial at which the court decides them.
When I send a matrimonial difficulties letter, I am exploring whether voluntary discussions can lead to a workable agreement. If those discussions are not sufficient, filing allows us to pursue the protections, disclosure and court relief my client may need. Throughout that process, I can continue working toward a settlement while preparing to address the issues that still require a judge’s decision.
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