You Received a “Matrimonial Difficulties” Letter. What Does It Mean?

A letter on a matrimonial lawyer’s letterhead has a way of making a marriage problem suddenly feel official, and frightening. If you open your mail or email and see that your spouse has retained an attorney “in connection with your marital difficulties,” your mind may immediately move several steps ahead. Has a divorce been filed? Am I about to be served? Do I need my own lawyer?

The first thing to understand is that what I refer to as a “matrimonial difficulties letter” is not a court paper or a document required by New York law. It is simply an initial communication from an attorney intended to open a discussion about marital issues and how they might be resolved.

When I send one of these letters, mine is usually short. I tell the other spouse that I have been retained, explain that my client would like to address the parties’ marital difficulties amicably if possible, and ask the spouse, or an attorney the spouse chooses, to contact me.

I’m not trying to argue the entire marriage by mail. At that point, I may know quite a bit about what my client believes is happening, but I have not heard the other spouse’s position. I may not know whether that spouse has already retained an attorney or whether the parties agree about the house, parenting, support, retirement accounts or anything else.

The initial letter is meant to open communication.  Sometimes the letter is sent with an eye towards negotiating a separation agreement and other times as a prelude to a divorce filing. What happens after the initial letter depends upon how the other spouse responds.

Why Send a Matrimonial Difficulties Letter Before Filing for Divorce?

In an appropriate case, I generally prefer to find out whether the parties can negotiate before immediately starting a contested divorce action.

That does not mean filing for divorce is bad or should always be avoided. There are cases where filing promptly makes sense. There may be an urgent need for court intervention, concerns about finances or property, custody issues, a need for temporary support, or simply no realistic prospect that informal negotiations will move the case forward.

But when the circumstances allow it, there can be advantages to first seeing whether the parties can reach an agreement.

If they can, we may be able to resolve issues involving custody and parenting time, child support, maintenance, property and debts, retirement assets and the marital residence before asking a court to become involved in those disputes.

Once the parties have reached a complete agreement and properly documented it, the divorce itself may be able to proceed on an uncontested basis.

There is another practical consideration. Commencing a divorce action has legal consequences. Among other things, New York’s automatic orders become binding on the spouse who files when the action is commenced and on the other spouse when the summons and automatic orders are served. Those orders generally restrict transfers or disposal of property, changes involving certain insurance coverage, retirement assets and the incurring of unreasonable debt while the case is pending.

Commencement is also significant in determining what constitutes marital property. Generally, New York defines marital property as property acquired by either or both spouses during the marriage and before the execution of a separation agreement or commencement of the matrimonial action. That does not necessarily mean every marital asset is valued as of the commencement date; valuation is a separate issue.

Those consequences can be important and are among the reasons I consider the circumstances of the particular case before deciding with a client whether it makes sense to negotiate first or file first.

What Happens After the Other Spouse Receives the Letter?

There is no single answer.

Sometimes the spouse retains an attorney, and the attorneys begin communicating. Sometimes we schedule a meeting involving both spouses and counsel. Depending on the circumstances, discussions may take place by telephone, Zoom, correspondence or some combination of these.

If the other spouse does not have an attorney, there may still be communications concerning possible settlement, subject to the ethical limitations that apply when an attorney communicates with an unrepresented person. I represent my client. I cannot give the other spouse legal advice, and I generally recommend that the other spouse obtain independent legal advice before signing an agreement.

The important point is that receiving the letter does not mean a divorce case has already been filed. It means one spouse has retained an attorney and is attempting to determine whether there is a way to address the marital situation.

Could the Discussions Lead to a Separation Agreement?

Yes. That is frequently one of the possible goals.

A separation agreement can address the issues that otherwise might have to be decided in a divorce case, including custody and parenting time, child support, maintenance, equitable distribution of marital property and debts, retirement assets, the marital residence, insurance and other financial issues.

There is no standard preprinted separation agreement that works for every couple. The agreement has to reflect what the particular parties have decided. Under New York law, a separation agreement must be in writing, signed by the parties and acknowledged with the formalities required by law.

If the parties reach a complete agreement, they can then determine whether they want to remain legally separated for a period of time or proceed with an uncontested divorce.

What About Mediation?

Mediation can also become an option.

If I have been retained to represent one spouse, however, I am that spouse’s attorney. I cannot simply switch roles and become the neutral mediator between the parties.

There are still ways mediation can be incorporated into the process. The parties can choose a different neutral mediator while each has independent counsel available for advice and review. In some circumstances, an attorney who had been involved in an advisory capacity may step back into a more limited review role while another professional conducts the mediation.

The important distinction is that a mediator is neutral. An attorney representing one spouse is not.

Mediation is also not appropriate in every case. Concerns involving domestic violence, coercion, child abuse or neglect, significant power imbalances, hidden assets or an unwillingness to provide financial information may make mediation inappropriate or require additional safeguards.

What If Negotiations Do Not Work?

Sending a matrimonial difficulties letter does not commit my client to negotiating indefinitely.

Sometimes the response is productive and the parties make real progress. Sometimes everyone says they want an amicable resolution, but financial information is not provided, positions do not move, or important issues remain unresolved.

At some point, the question becomes whether negotiations are actually moving the parties toward an agreement.

If they are not, filing for divorce may become the appropriate next step. Once an action is commenced, the case moves into the formal court process. Depending upon the circumstances, that can include financial disclosure and discovery, requests for temporary relief, court conferences and, if necessary, judicial determination of issues the parties cannot resolve themselves.

Importantly, settlement discussions do not necessarily stop simply because a divorce action has been filed. Many litigated divorce cases ultimately settle. Filing changes the process and gives the case a formal court structure; it does not mean the parties have lost the ability to negotiate.

Does Receiving a Matrimonial Difficulties Letter Mean the Marriage Is Definitely Ending?

Not necessarily.

I have had situations where a client came to me because the marriage was in serious difficulty but had not made a final decision about divorce. Sometimes the discussion ultimately involves family therapy, a postnuptial agreement or another attempt to address the problems in the marriage.

Other times, the parties determine that the marriage is ending but would prefer to resolve the legal and financial issues without immediately beginning contested litigation.

I have never thought that every troubled marriage needs to begin its legal chapter with a race to the courthouse. At the same time, there are cases where court intervention is necessary and delaying a filing would accomplish nothing.

That is why the initial letter is deliberately modest. It opens communication and allows us to see how the other spouse responds.

If the response is productive, we can explore negotiation and possibly a separation agreement. If both spouses believe mediation would be helpful, that may be another option. If the issues cannot be resolved voluntarily, a divorce action can be commenced and the unresolved issues addressed through the court process.

The letter itself does not determine which path the case will take. It simply starts the conversation.