If you apply these 30 strategies consistently, you can make your journey through divorce faster,
easier and have a higher probability of getting the settlement package you want. Here they are.
1 – Each divorce is unique. Every marriage and family has its own distinct profile, and therefore
every divorce is different. Your legal strategy has to be tailored to your individual circumstances
and needs, and that takes time, thought and careful planning. What you envision that result to be
should be built around a long-term lifestyle choice you hope to maintain.
Beware of misinformation. The divorce landscape is littered with it, including books by attorneys
who advocate methods that heighten conflict and raise legal fees unnecessarily. Do not be
swayed by family members, friends and associates who are unlikely to know what is truly right
for you. They are not the ones who have to deal with your ex-spouse and children going forward.
Only you can make vital decisions about your life. This is especially the case if any of them have
been through a difficult divorce. Their negative experiences will invariably affect the advice they
give you.
2 – Hire a matrimonial attorney to represent you. Matrimonial law has many complex facets,
and divorce is usually a difficult process under even the best of circumstances. You want an
attorney who is experienced in handling divorce cases, and who has a problem solving approach
as opposed to an adversarial one. If an attorney’s orientation is to turn your divorce into a war,
you will ultimately be paying the bill for all the battles. It complicates an already tough situation,
can easily make legal costs spiral out of control, and prolongs resolution. That reduces your
quality of life.
If your goal is to achieve a fair, lasting settlement as quickly as possible, pick an attorney you feel
can accomplish this outcome for you. You also want to attain the result with a minimum of legal
fees. If the lawyer is experienced in matrimonial law, is a good listener, and suggests negotiating
in a reasonable, non-antagonistic way, these are good indications you’ve found the right
representation.
Most importantly, don’t try to be your own lawyer. If your spouse has hired a knowledgeable and
seasoned legal professional to represent him or her, what reasonable chance of success can you
expect as a non-attorney? More likely than not, you’ll be decimated, and the consequences may
affect you and your children for the rest of your lives. Borrow the money if you have to, but get
adequate counsel.
A knowledgeable matrimonial practitioner can sometimes win major advantages solely with
skillful handling of procedural issues. For example, McAdams Law represented a husband in a
child support lawsuit that had already dragged on for seven years. He was arrested for being in
arrears on child support payments. The firm proved he’d never received the Family Court papers,
and thereby got the case dismissed and judgment voided. He was released from jail, and saved
tens of thousands of dollars.
If you’re anticipating divorce, set up a fund for living expenses and professional fees. You’ll
want to insure that you have money to live on and to pay costs until it’s finalized. In the
beginning stages, it can be unclear what your living arrangements will be, and what the total
amount will be for legal and other professional fees. Your lawyer can assist you in making a
good estimate.
Once your spouse knows you want a divorce and hires a lawyer, you may have limited or even no
access to any joint funds for a while. Anticipate your financial needs for the worst-case scenario
and set aside the money in an account only you have access to.
The most basic preliminary step in discussions with your attorney will be establishing what
constitutes a good outcome for you. To do this, you’ll need to create a written account of items to
be negotiated between you and your spouse. Make three lists. The first category consists of things
you absolutely need, and would be willing to fight for in Court if necessary. These are most
important to you, and are required for your settlement agreement to be a workable deal long-
term. The second list is of items you want, but could do without if you had to. Your third list
includes things that can be viewed as extra perks or luxuries, and that you’d be willing to give to
your spouse in negotiating for the things you really need.
Review and refine these lists with your lawyer.
3 – Get the best team of advisors you can. In addition to your lawyer, other experts can play an
important role in achieving the result you want. An accountant who’s experienced with
matrimonial litigation can be essential for evaluating your spouse’s income and assets, advising
you on your own financial status, and handling the tax consequences of divorce. There are also
divorce financial planners who assist with establishing budgets and assessing settlement
packages.
When it comes to custody and visitation issues, a therapist who has a background and training in
handling divorce cases can be crucial to working out a suitable arrangement for your children.
You may also want a therapist with whom to discuss your own emotional issues.
Other experts may be needed to get the best possible settlement. For example, if a business is
involved, an appraiser or valuation specialist may have to be called in. Good planning suggests
that you address the need for all these professionals in advance. Ask your attorney what
additional assistance may be required.
Put this team in place as soon as possible. They’ll help you anticipate potential problems in
advance, and minimize their impact. As your divorce moves forward, it may be harder to gain
access to the data they need to help you most effectively.
In one divorce case, McAdams Law was retained by a woman who was initially receiving $350 a
month in child support under a prior settlement from her ex-spouse, for their ten-year-old
daughter. When she discovered her former husband declared in excess of $300,000 annual
income in the USA, derived from his international commodities exchange business, she sued him
in Manhattan’s Family Court for upward modification of his child support obligation. After
initiating this case she came to McAdams Law, and the firm represented her in moving forward.
The litigation went on for two years and McAdams Law used expert witnesses to challenge his
“explanation” for why the company went out of business after he was sued. He then agreed to
pay her legal fees, the child’s private education through high school, college, and graduate
school, and to increase his child support payments by a multiple of five. Knowledgeable experts
were crucial to achieving this outcome.
To be uninformed or misinformed in divorce proceedings can be deadly. The outcome of your
divorce will have a significant bearing on the quality of the rest of your life. Mismanaging any
aspect of it could cripple your opportunity for a good future, along with your children’s.
Therefore, it pays to spend the time to become educated by asking good questions, preparing well
and assembling the best team in your corner you can.
4 – Negotiate or litigate. The reality of divorce is either you come to terms with your spouse, or
have a judge decide your future for you. You have more control over the process when you agree
to work things out directly with your spouse, assisted by your lawyer.
Going to trial is risky and expensive; trying to predict the outcome is dangerous. If you do go to
trial, expect the unexpected. No one can predict the outcome of even the most carefully prepared
trial strategy with 100% accuracy. There are too many variables involved in most divorces to do
so. The bottom line is that when you go to Court, you are turning over control of your life to a
third party. The judge may or may not see things your way.
Also, don’t expect the Court to make right what you feel is wrong. The Courts are overburdened.
The judge’s agenda is to encourage you to deal with your spouse and reach a settlement as
quickly as possible. Your idea of what is fair may be entirely different from the judge’s
conception of it, so do not expect fairness. If you don’t see the judge’s decision as favorable you
can appeal, but it may cost you a lot extra in legal fees, which is money you could otherwise use
to live on. Do a cost/benefit analysis especially with regard to monetary issues. Sometimes
fighting over money can cost you more than you can ever hope to gain. If you factor in your legal
fees, Court costs, expert witness fees, missed days from work, plus the fact that in the end you
may be ordered to pay your spouse’s legal bill, you can see it may be a losing battle even if you
win. Carefully review with your attorney what you can reasonably hope to gain concerning any
specific financial issues, and project the anticipated costs in advance. You may save yourself a
small fortune.
5 – Have a cooling off period. Starting negotiations too early about long-term issues can doom
your efforts to failure. Whether or not you initiated the divorce, you both need time to adjust to
the reality of your relationship being over, and to begin the process of rebuilding your lives.
Emotion clouds the detached frame of mind essential to good negotiation. The best initial
strategy is working out a temporary arrangement that minimizes emotional and legal conflict.
Think carefully about the terms of any temporary agreement. Keep in mind that the Court will be
reluctant to change any arrangement that appears to work. The deal you make now may be the
one you have to live with. Be cautious about what you agree to.
A reasonable time frame for transition ranges from a few months to a year. Negotiating a
separation agreement itself can take three or four months under the best of circumstances.
6 – Malice doesn’t pay in divorce. No one really “wins” in a divorce. Being confrontational and
vindictive takes a hard situation and makes it much worse. If you decide you’re going to engage
in war, you’ll make it difficult if not impossible for your partner to be reasonable and negotiate
with you. He or she is likely to respond in a similar way. Escalating conflict does nothing but
enrich lawyers. Don’t up the ante.
Also, don’t automatically assume that your spouse is acting with intent to harm and ill will. If his
or her attorney has a hardball, take-no-prisoner’s approach, it may be you’re your partner is going
along with that advice. This is one of the dangers of legal maneuvering. It can destroy any
remaining goodwill between you, and complicate your divorce needlessly. Be aware that the
attorney may be the ruthless one, not your spouse. Therefore, don’t impulsively respond in kind –
speak with your own lawyer about the most appropriate strategy.
It doesn’t help to focus on fault. As a practical matter, most judges conclude that both parties
contributed to the destruction of the marriage. So while the law may allow a judge to consider
extreme fault in determining maintenance and property division, that doesn’t means the judge
will. The more important elements are earning potential, financial need, age and health of each
partner and the children, and how long you were married.
Explosive outbursts of anger can ultimately be used as evidence against you in Court, especially
in custody proceedings. It is a common tactic of lawyers to bait the other side with the intention
of provoking a rage response. If you find yourself in this situation, the smartest strategy is to
distance yourself from it. Let your attorney or a mediator handle negotiations and act as a buffer.
A calm response is safer than an angry one, and no response is sometimes best of all.
Never alienate or emotionally poison your children against your spouse at any time, either during
or after your divorce. The Courts have a very severe view of this kind of behavior. It’s a mistake
that can result in your partner winning sole custody, even after it has been initially awarded to
you. Custody remains an open issue until children are of age to legally choose which parent to
live with, or are fully grown.
Concentrate on your long-term objectives: to emerge as financially intact as you can, and to
protect your children from additional trauma. Avoid provoking your spouse. If you want to save
money and preserve your financial well-being, be willing to negotiate, be fair and be reasonable.
Flexibility can achieve more than fighting.
If there is any winner in a divorce, it’s the person who thinks before acting.
7 – Think parenting instead of custody. Both for legal strategy, and more crucially for the
benefit of your children, focus on the quality of your parenting as opposed to custody. The Courts
are ultimately concerned with what is in the best interests of the children. If you want to win sole
or even joint custody, you’ll need to convince the judge you are a capable parent. Too many
parents focus on getting custody, and not enough on what constitutes good parenting both from
the Court’s and their children’s perspective.
If you’ve been an attentive parent, your attorney will assist you in documenting it. On the other
hand, if your spouse has genuinely performed most of the day-to-day parenting responsibilities,
you will need to learn more parenting skills and prove to the Court that you can make a
significant contribution.
Be an active parent. Earn the right to custody by being a good one, rather than through legal
maneuvering and courtroom battles.
8 – Deal with secrets and sensitive issues in advance. Things you try to hide during divorce
proceedings have a mysterious way of coming out at the worst possible time, like during a cross-
examination by your spouse’s attorney. If you’ve had an affair, are developing an emotional
problem, engage in substance abuse, have undisclosed financial dealings, or any other potential
legal landmine, discuss it with your attorney. This way you can develop the best strategy to deal
with it in advance.
In some instances, the best strategy is to deal with the weak parts of your case openly. If you
appear to be hiding something and it’s dragged out of you in Court, it can be more damaging.
Presenting the problem in a forthright manner diffuses its impact, and contributes to an
impression of trustworthiness and honesty, which can strengthen your case.
Be careful who you speak to and what you say. It’s best to keep all information concerning your
divorce confidential. Only share information with those who need to know, and who will directly
assist you with achieving a favorable outcome. To do otherwise is to risk revealing information
that can make its way back to your spouse and his or her attorney, and may be used against you in
court. Your comments may be electronically recorded without your knowledge. Additionally,
your spouse may have hired a private investigator to collect information about you, including
anything you might have said in recent conversations.
For example, McAdams Law represented a father in his thirties who engaged in cross-dressing
and taking feminine hormones. This issue manifested after the World Trade Center disaster. He’d
escaped from Tower 2, then suffered posttraumatic stress and fell into a severe depression. His
physical health had deteriorated as well; he developed a heart condition, and required a stent.
Next, his wife threw him out. After that he went to live in a single room occupancy hotel, and
began dating another woman. To compound matters, he lost his job.
His wife’s lawyer demanded child support beyond his means and sought to severely curtail his
parental rights. McAdams Law negotiated an agreement in which he would not to discuss his
cross-dressing or hormones with the children, or to expose them to it in any way. The firm
protected his share of the marital home, which he receives when his wife sells it or the children
reach the age of twenty-one. Both spouses waived maintenance from each other, and child
support payments were limited to the legal amounts he could afford to pay when he found a new
job. This enabled him to get back on his feet and to maintain an important role in the lives of his
children.
Attempting to hide damaging secrets in this case would surely have backfired.
9 – Good records are essential to a successful result. Your financial records are evidence in the
economic valuation of your marriage. The best time to compile this information is before the
subject of divorce is raised. If you suspect divorce is in your future, begin now to collect and
organize your records. Evidence can easily vanish in a divorce situation, and facts become more
difficult to obtain as it progresses. If your spouse deliberately removes, conceals, alters or
destroys key documents that you have no other access to, it’s much more difficult to reach
resolution and closure successfully.
You must know your budget facts. You can’t make a case for or against maintenance amounts
that are not based on solid financial data. Get detailed information about specifically what it costs
to run your household, and to take care of children if you have them. Make a record of all costs
so that you can negotiate from a position of knowledge and strength.
Without good records and detailed knowledge of your financial situation, you could be in danger.
For example, your spouse can run up debts you may be responsible for. If you don’t collect the
data, your attorney will have to subpoena the information. That process is costly, time consuming
and exhausting. Worst of all, it is not infallible and critical facts may never be discovered.
You’ll need the last three years of financial documentation. That includes: your tax returns, a
personal balance sheet, your will and other estate-related documents, the deed to your house or
condo (or subscription agreement and proprietary lease for a co-op), your mortgage, insurance
policies, 401K, IRA, and pension, brokerage, credit and loan statements, car registrations, and a
list of any other assets like art, jewelry, antiques, etc.
If you have a business, you’ll also need to supply business and tax records, including any key
documents. Your attorney will fill you in on whatever additional material is needed.
Review and make copies of cancelled checks. These can reveal financial information of which
you were previously unaware, and may be critical later on.
Download all computer data to a disk and store it safely outside your home. E-mail and other
computer files can have vital data essential to achieving a successful result. You may be
surprised to discover what’s there. If you don’t know how to collect the data in electronic format,
hire a computer technician to come to your home and office to do it for you. Then store it in a
safe place only you have access to.
Take special care to document your spouse’s income and assets. However, compiling this data
does not include raiding his or her private papers. You’re looking for financial information about
the marriage to which you are entitled. It’s not a good idea to be invasive and go through your
partner’s personal property. If you do and it’s discovered, you’ll only incite more rage.
Sneakiness can backfire on you.
Write down everything you contributed to the marriage that had economic value, or in any way
added to the financial stability of your marriage and family. For example, did you pay for or
contribute to your spouse’s professional training? Were you actively involved in helping your
spouse manage a business? Did you host many important business dinners and meetings?
Put all this information into a binder, or an accordion file with labeled pockets. Taking the time
to organize your information in this manner can reduce your legal fees, since this is something
your attorney will otherwise have to do for you.
Keep your records in a filing cabinet or plastic container, where they’ll be protected. Keep copies
of all vital documents off premises, in case there’s a fire or flood and your records are destroyed,
or if for any reason you lose access to your home. Always protect against loss of your records,
remembering that the cause can be accidental or deliberate interference by your spouse.
Collecting evidence is particularly important if you are claiming abuse. After your spouse retains
legal counsel, the attorney will advise him or her to behave like a model citizen and parent. Keep
a written record of all abusive incidents, and speak with your attorney about additional steps to
take to document the harms suffered.
10 – Take photographs or make a video of all your possessions. Be sure to include a recent
newspaper in the view to establish the date. Make a list that includes all items, along with the
value of each one.
It’s best to create several sets of this data: give one to your attorney, keep one in secure location
only you have access to, and consider giving one to a trusted family member or friend for safe
keeping. Only share information with your spouse through your attorney. Revealing in advance
what you intend to show in court and how is not always to your advantage.
In addition to documenting all marital property, this strategy can help diffuse unreasonable
claims. For example, if your spouse claims to need additional money for clothing and you can
present a photo of an extensive wardrobe, it’s evidence suggesting the request is unwarranted.
11 – Document parenting ability. Courts determine custody according to what is in the best
interests of children. To win custody, you’ll have to show the Court that you are the more capable
and nurturing caretaker of your children. That takes preparation and planning.
To do this effectively, provide evidence of how much time you routinely spend attending to your
children’s needs on a day-to-day basis. A calendar is a good tool for this. For example, if you
have a baby, do you change the diapers, handle all the feedings, etc? Demonstrate a record of
time spent with your children, including your attendance to school events, recreational time,
vacations, etc. Include especially time taken off from work to take care of a sick child, or
extended periods away from your normal employment to be home with children.
Be an informed parent. For example, nothing is more ridiculous than trying to prove you are an
adequate caretaker for your children, when you don’t even have a handle on expenses.
Document your spouse’s parenting capacity also. Since people are on their best behavior during
custody proceedings, you’ll need to reconstruct his or her history of parenting as accurately as
you can. Ask your attorney about using the same procedure you’re using to prove your own
ability, or get recommendations as to the best approach. If you can show specific evidence that
proves you are the more attentive parent, you give your lawyer a powerful tool for winning your
case.
Consider hiring an independent custody advisor. Many judges appoint a custody evaluator at the
start of a custody case, and will often rely heavily on this expert’s advice. Good strategy is called
for in these circumstances. If you hire your own independent custody advisor to assist with
developing a court strategy, you can be coached on the best approach to dealing with the
evaluator the judge appoints, and have your expert review the reports provided to the Court for
weak spots.
Attend every court hearing, even if you’re not required to. It shows the judge you are dependable,
conscientious and responsible. The positive impression you create can help sway the Court’s
decision in your favor. In custody proceedings, it gives the impression of a capable parent.
Keep in mind that court rulings are becoming more favorable to awarding custody to fathers than
in years past.
12 – Hiding income and assets is not a good idea. Here’s the bottom line: they’re likely to be
found. Then you’ll look bad – to your spouse, your kids, and the judge. You could even go to jail.
Your tax returns can be subpoenaed. If the income you’re not telling your spouse about is on
there, it will be easily discovered. If it’s not on your returns, that’s tax evasion and is a crime for
which you can be fined and imprisoned.
Be completely clear about this: lying on Family Court or Supreme Court financial disclosure
forms is perjury. Perjury is punishable by fines and/or imprisonment. The Court will consider it
in ordering maintenance, support or distribution of property.
Your spouse’s attorney may hire a forensic accountant to go over every item of your finances.
This is a financial professional who investigates and reports on your financial background for
court purposes. Every check you wrote, credit card you used and cash advance you made will be
looked at, and that’s just for starters. It’s well known that husbands and wives attempt to hide
money and property in divorce situations. And forensic professionals are aware of all the tricks
people use.
Be forthcoming and upfront about your finances, and you’ll gain the respect of the Court as
someone who is cooperative and trustworthy. The ultimate financial impact of that positive
impression is likely to be more valuable to you than any cash or assets you hide, especially if
your deception is discovered.
McAdams Law once represented a woman whose husband was a cab driver. He received his pay
in cash and claimed poverty. They had a daughter and he was obligated to pay child support. The
wife claimed he sexually abused her younger sister, and obtained an order of protection
commanding him to stay away from her and the daughter. He violated the order of protection and
was arrested. The firm learned that he owned two cars and had bought a restaurant, and served
papers on him while he was in jail. He ultimately agreed to pay substantially more in child
support than he claimed to earn on his tax returns.
13 – Hire a financial professional to create your budget. You will have to produce a schedule
of living expenses to arrive at an agreed upon figure for both temporary and long-term
maintenance. It’s wise to have a financial professional assist you in generating this document.
Otherwise, you may find that a miscalculation leaves you with insufficient funds to live on, and
puts you at risk. The cost of retaining a financial professional is minimal in contrast to future
economic devastation because you forecasted your needs inaccurately. Hire a professional with
experience in divorce planning.
14 – Guard your credit. Each marital financial situation is different, and you will need to
evaluate yours carefully. If you fear that your spouse will run up joint credit cards or otherwise
incur debt, discuss with you attorney whether it is appropriate to have the accounts frozen or
canceled. If the accounts are in your name, but you’ve had a card issued to your spouse, you will
still be liable for any charges he or she makes.
Keep in mind that you don’t want to provoke animosity, yet you also want to avoid risk of
damaged credit and undue financial strain. Excessive credit card debts can destroy your finances.
Once your divorce is finalized, you’ll want to close all your joint accounts and notify each
creditor in writing. You can then reapply for your own accounts if you want to. Get a copy of
your credit report three months after your divorce is final and check it carefully. If you still see
joint accounts, write the credit-reporting agency about correcting errors along with anything else
that may need updating or investigation.
Once you move out, also remove your name from any utility bills.
15 – Revoke any powers of attorney on your personal accounts. If you don’t, your spouse
may empty them out. A power of attorney gives legal access. Check into canceling any that exist
relating to your own bank, securities brokerage and other important accounts.
Additionally, to protect your privacy, have your personal mail sent to your own post office box or
mailbox service. Speak to your attorney about transferring any maritally related mail there, and
changing other addresses associated with your marriage. While you don’t want to seem as if
you’re concealing assets and conducting hidden financial dealings, you still need to protect
yourself and want to know about all crucial correspondence. This may have to be worked out
between your respective attorneys.
16 – Update your will, health care directives and all other estate-related documents. If you
die unexpectedly without a will, or if your spouse is named as sole beneficiary in your will, he or
she will inherit all your assets unless you have children. If you have kids, there are situation-
specific laws that determine what your spouse and children respectively receive.
If you don’t have a will, hire a lawyer to prepare one now. If you do have one but haven’t named
a new beneficiary, have your attorney update it with all necessary changes.
Even if you have an updated will, your spouse can challenge it before the divorce is finalized. If
you die, he or she is entitled to receive one third of the estate or $50,000.00, whichever is greater.
However, you may still want to make changes so that whatever your spouse could receive is
limited to these amounts. Again, if children are involved, different formulas may apply.
Similarly, any health care proxy or living will you have in force may need to be revised. These
documents allow your spouse to make health care and medical decisions for you, if you are not
able to yourself. Many people are not comfortable having these decisions made by spouses whom
they are divorcing. If you aren’t, appoint someone else.
These issues should be addressed immediately. Don’t wait until you reach a final divorce
settlement.
17 – Consider mediation and arbitration. These are alternatives to divorce litigation. Either
option may cost substantially less than conventional divorce. That preserves your financial
resources. If you want to accelerate resolution, one of them may be a better choice for you than
going to court.
In mediation, you have an independent third party assisting you and your spouse in working out
an agreement. You still have your lawyer advise you, and put the agreement into writing. Many
people find mediation is far less emotionally draining that litigation. Another benefit is that
mediated cases tend to be settled more quickly. Sometimes resolution can be accomplished in
months, as opposed to the multi-year scenario for many litigated divorces.
Like mediation, arbitration is usually faster than full-fledged litigation. With arbitration, you
agree to have your case decided by an arbitrator rather than a judge. The decision is binding, and
can’t be appealed. Even when arbitration is preferable to a lawsuit, it still leaves the final
decision in the hands of a third person. This is another reason why it’s advantageous to negotiate
with your spouse if possible.
Because each divorce case has its own special circumstances, you’ll need to consider these
approaches carefully with your attorney to see if one of them is a better choice than a potential
nasty, drawn out court battle.
18 – Don’t leave your home until your attorney advises you to. Leaving your home too soon
can have major repercussions. Your expenses immediately go up because now you’ll have to
maintain another home. Also, it’s harder to guard your financial interest in the marital property,
and other claims to it.
Once you’re out of your apartment or house, you may not be able to regain access, and you lose
some control over the property division aspect of your case. If your personal property is still
there, you might not be able to get it for a long time, or you may never get it back.
From the standpoint of custody of your children, leaving home may be regarded as abandonment,
and can severely damage your opportunity to win custody of your children.
Certainly there are circumstances in which is advisable to leave, such as if you are a victim of
domestic violence. Yet even in this case, it may be a better strategy to get an order of protection,
requiring your spouse to leave instead. Each case needs to be evaluated individually.
19 – Do not have sexual relations with your spouse while you are pursuing divorce. This
happens with some frequency and is not as outrageous as it sounds. If the grounds for your
divorce is adultery, having sex with your spouse after you learn of it can legally be considered as
forgiving the infidelity.
It also destroys the ability to use “constructive abandonment” as grounds for divorce.
Constructive abandonment means a spouse has refused sexual contact even though capable of
having sex, with the partner having requested it continuously for over a year. It is often
considered the gentlest of the fault grounds.
20 – Solve your problems or sacrifice your kids. If you suffer from mental illness or an
addiction, are abusive, a workaholic, or want to destroy your spouse’s relationship with your
kids, you need to get help and change these destructive life patterns. All of it will come out at
trial, and probably cost you custody of your children, especially if your spouse doesn’t exhibit
these behaviors. Be aware that if your spouse has these problems also and you fight over custody,
you may lose your children to foster care.
Being promiscuous, particularly in the presence of your children will also hurt you. Of course, in
some divorces one party has already established a serious relationship with someone else.
However, in the absence of serious intent you are better off curtailing any recreational romantic
liaisons. Cheating will cost you. If you feel your marriage is ending, be clear about it and make
some decisions. Either get counseling and address your issues, or see an attorney about planning
your divorce. If your spouse discovers your infidelity, it will be experienced as a betrayal and
make your divorce brutal and bitter.
If your spouse suspects you’ve been unfaithful, his or her lawyer will likely hire a private
investigator to collect evidence and prove it. There’s either a paper or electronic trail to almost
any interaction nowadays. Credit card transactions, cell phone bills, e-mail – all are traceable,
and can be subpoenaed. In fact, there are firms that specialize in capture of electronic evidence.
The legal name for cheating within a marriage is adultery, which is a crime in New York State.
Never threaten or be violent. If your spouse feels that he or she is in danger, or can supply
specific evidence to the Court, you can be removed from your home under a restraining order,
commanding you to keep your distance. It’s a crime if you violate it and you can be arrested.
If the nature of your relationship is such that you feel you might be provoked to violence, it may
be best for you to find other living accommodations. This is something you should address
immediately with your attorney.
If you believe your spouse is endangering you, whether through physical violence, verbal threats
or abuse, stalking or any other type of harassment, take immediate legal action to protect yourself
and your children. Speak to your attorney about having your partner removed, securing your
premises and obtaining an order of protection.
In an emergency, you can go to Family Court without an attorney, and get a temporary order of
protection requiring your spouse to stay away from you, your home and your children. However,
to obtain one you must claim that you or your family is in immediate danger.
While it’s preferable to maintain a cordial relationship with your ex-spouse after the divorce, if
he or she has these kinds of problems it may be time to go your separate ways, or at least
minimize future involvement.
In one case McAdams Law was involved in, the firm represented a woman whose husband
suffered from bipolar disorder, a form of depression. They had a long marriage and an adult
daughter. The firm assisted in equitably dividing the marital property, which included three
houses in Queens. The wife got title to one of the houses wholly in her name, and sold another
house to get her half the value. In all other respects, they went their separate ways.
21 – Good negotiators are sensitive to the other party’s needs. Divorce always provokes
strong emotion, which tends to make people consider their own needs only. But nothing can be
more detrimental to a successful negotiation. As difficult as it may be at times, you’ll need to be
as objective as you can and look at the situation from the perspective of your spouse. How is he
or she likely to be feeling? If you were in the same position, facing similar demands, how might
you react? What would you direct your attorney to do?
Clarity is essential to successful negotiation. Sometimes it’s easier to be angry than it is to be
depressed. However, anger and vindictiveness blocks your ability to clearly evaluate your
options, and to plan effectively for the future. Let your actions be guided by your ultimate best
interests, not emotions and feelings. In some ways, you’re best off approaching your divorce as a
business transaction. Making financial and other adjustments on both sides is part of the reality
of divorce. Fighting leads to high legal fees and less money to live on.
Approaching interactions with your spouse this way gives you an edge. If you can successfully
anticipate reactions, you can tailor a negotiating strategy that has the highest probability of
success. It’s not just a question of having your attorney do all your talking for you. Your attorney
helps facilitate a successful resolution of the entire divorce process, but ultimately you must
decide among the options and approaches your lawyer outlines for you.
When negotiating, focus on points of agreement first. You want to establish a common ground
that serves as the foundation for productive discussion when it comes to the more difficult issues.
Thinking from this broader perspective always includes your children’s reactions. How you act
speaks volumes to them. Your choices and actions are eventually telegraphed back to them in
some manner. Think about their response to everything you say and do concerning the divorce
and your spouse. When they’re older, they’ll remember these things and it may affect your
relationship with them in a major way.
Never use your kids as a bargaining chip. For example, after you’ve worked out custody and
visitation, don’t tell your spouse you’ll give additional access to the children in exchange for
some other benefit. There could be legal repercussions, and an adverse impact on your children.
Have clear boundaries with your ex-spouse, especially when it comes to your kids.
22 – Don’t depend on your prenup. The validity of a prenuptial agreement can be attacked.
Two major issues are: a) whether you made full financial disclosure at the time the agreement
was signed; b) whether your spouse had an opportunity to be adequately represented by his or her
own lawyer. Certain changes in circumstances can also undermine it. Make sure you have all
supporting financial documentation collected and in a secure place, like a safe deposit box only
you have access to.
What you agreed to in your prenuptial agreement can have a bearing on estate planning
considerations. When you update your will, have your lawyer carefully review your prenuptial
agreement. You want to be sure any changes or amendments to the will are in accord with its
provisions. Otherwise, if there is any conflict or ambiguity between the two documents and you
die unexpectedly, the will may be open to challenge and your wishes may not be honored.
23 – Cap if you pay, open if you receive. If you pay maintenance, you want to negotiate a
settlement that puts a limit on the amount and time you’ll make payments. You want a reasonable
agreement that is acceptable to your spouse, to minimize incidents of future conflict, yet you also
want to be free and clear of the responsibility as soon as possible.
If you are to receive maintenance payments, you are best protected by having your agreement as
open-ended as possible, to cover any future contingencies with an upward adjustment. Again, this
is subject to negotiation, and it is not in your interests to alienate your spouse by attempting to
force an arrangement on him or her that appears to be an unfair and onerous burden. You’ll then
very likely have difficulty collecting your payments, and can look forward to additional court
visits and unnecessary venom between you.
There are various types of maintenance arrangements. Sometimes maintenance can be capped
and paid in a lump sum. In other instances, the Court will require the payments to accommodate
specific circumstances. For example, the judge may want determine what amount is needed to
assist your spouse in getting training and support to earn income independently. Courts try to
protect a spouse from the economic devastation of ending a long-term marriage, or against loss of
earning capacity due to the potential reoccurrence of an illness, such as cancer.
The timing of when spousal support obligations end can also vary. In some cases, payments stop
when a spouse remarries, or moves in with a new partner.
Consider hiring a vocational expert to assess your spouse’s earning potential. What your husband
or wife is capable of earning will influence the maintenance agreement that is worked out
between you. A vocational expert can assess skills, aptitudes and earning potential, and make a
credible recommendation to help your attorney negotiate the best possible deal on maintenance
for you.
The point of maintenance is to assist with financial transition. If your partner doesn’t work
presently but is capable of earning income, maintenance helps with moving from dependency to
economic self-sufficiency. This is also the case if your spouse is underemployed, and can earn
more than he or she is right now. The goal is for both parties to be independent and contribute to
the new financial needs of two households.
The best approach is to maintain an attitude of helping your spouse adjust to the new reality of
divorce. If you can afford it, it’s worth investing some money to help your partner adapt better to
new economic circumstances. This can include paying for a course of therapy, if adjusting to a
new work ethic or situation is traumatic. Also, help your spouse establish his or her own credit if
necessary.
For example, McAdams Law represented a wife with bipolar disorder. There were no children.
The firm obtained a divorce settlement after a five-year marriage, in which the husband bought
out her fifty percent interest in their marital home, and agreed to pay her maintenance until she
finished her masters degree.
Each situation is unique. Whether you’re paying or receiving, the rule is to anticipate future
needs and have your attorney write an agreement that avoids either of you having to go back to
court and litigate.
24 – Require payments towards your children’s education now. Educational expenses are
among the largest financial obligations parents have to sustain. Your children’s education is too
important to be subject to a future “promise to pay.” Your settlement agreement should include
specific allocations for education, with contributions beginning immediately, to avoid
disagreements that may arise later due to changed circumstances or poor planning.
It may be best to explore the use of different types of accounts to accumulate these funds, such as
a trust formed with the express purpose of providing for your children’s education. These
accounts can be managed by a designated third party under specific instructions to handle the
account in a preplanned way, thus minimizing the chance of future conflict between you and your
ex. However, trusts can be complicated, and you should speak to your attorney about a referral to
an estate-planning practitioner who can advise you.
In a case involving educational costs, McAdams law acted on behalf of a husband who owned a
house and earned a large salary. His wife had a smaller salary, but owned valuable properties.
The firm negotiated an arrangement in which the parties divided ownership of their properties,
and reached an equitable agreement for the payment of their son’s training and educational
expenses. Although there were still outstanding issues to be resolved, the settlement ensured the
child’s education.
25 – Amend your lease. If you rent, contact your landlord about changing the name on your
lease once your divorce is final. If you don’t and you are staying in the apartment, your ex-spouse
will have legal rights of access to it. On the other hand, if you’re the one leaving the apartment,
you don’t want to be responsible for paying any rent not required by your settlement agreement.
For example, if your spouse is sued by the landlord for non-payment, and your name is still on
the lease, you could be named in the suit. A money judgment could then be entered against you
for back rent due, without you even knowing it.
There is a recent issue in landlord-tenant litigation that has far more serious consequences than
just being sued for unpaid rent, and that’s blacklisting. Housing Court now sells the names of
litigants in cases to background checking agencies. That means if you’re named in a lawsuit
because your ex-spouse is being sued or evicted, you’ll also be on the blacklist. If you ever want
to move to another apartment, your new landlord is very likely to find out about your being
named in the case through a routine background check, and may not want you as a tenant. To get
into a new apartment, you may have to pay a significant amount of rent in advance, or a higher
security deposit.
You could be exposed to this after a divorce even though you may have followed the terms of
your divorce settlement agreement precisely, and are not at fault in any way with regard to your
spouse’s apartment. If you had a rent-stabilized or rent-controlled apartment, your spouse will
then probably move to a new location at a much higher rent, and may sue you to cover the
additional cost. If you have children, not only does it raise issues as to the suitability of their
living arrangements, but you can be more liable for additional child support payment based on
their increased needs.
There’s also the possibility your spouse may deliberately not pay the rent, to precipitate
circumstances that result in a move to a better apartment, which you have to pay for.
An additional concern is the luxury decontrol provision of the rent stabilization code. If the
apartment you shared while married is rent-stabilized, and the rent is currently over $2000 a
month, your spouse may lose rent-stabilized rights if the household income exceeds $175,000.
Here’s how that might happen. Let’s say your spouse makes $80,000 a year, and has a lover
move in who makes $100,000 annually. The combined household income is now $180,000. If the
lover stays two years, the landlord can have the apartment removed from rent-stabilization
protection.
If your spouse breaks up with the lover, and is stuck with the higher rent and just one income,
who do you suppose is the first person to be tapped for the difference? You. And the Court may
legally enforce your former spouse’s right to have you pay the increase, unfair though it may be.
Child support can be based on the children’s increased needs.
An experienced landlord tenant attorney can help you with these matters. The first issue to deal
with will be whether or not the landlord will change the name on the lease. Your divorce
settlement should be very clear and precise about changing the names on the lease to avoid your
being exposed to the liability of being sued for your spouse’s nonpayment of rent. Your
settlement could stipulate that any additional rent or security deposit payments you incur as a
result of nonpayment or being blacklisted is either subtracted from the maintenance you pay, or
are considered as a credit towards it.
Regarding the loss of rent-stabilized status due to luxury decontrol, your attorney can negotiate a
provision to your settlement agreement that says if your spouse jeopardizes the rent-stabilized
status of the apartment by cohabiting with another occupant, that he or she is responsible for any
increase in rent, or for the difference in rent at new residence.
No protective measure is foolproof. Even with this provision, the Court may still order you to pay
for the cost of a new home at a higher rent, in the form of increased child support. However,
you’re still safer having it in your settlement agreement than not.
Strategy # 20, “Don’t get blacklisted.” covers the topic. You’ll also find additional information
about potential loss of rent-stabilized status in that Report.
26 – Consider work that permits a home office and flexible work hours. The reality of the
current legal landscape is that in many respects Courts do not view or treat women and men the
same. Some judges still feel a woman’s place is in the home, exhibiting prejudice against
working mothers or stay-at-home fathers. Successful professional women who work long hours
are especially at risk in front of these judges, as are fathers who bring home less money than their
wives. Expecting the Courts to be completely fair is somewhat naïve. Consequently, everything
you do especially up until custody is awarded, needs to be carefully thought out as to its potential
impact on the Court’s decision.
Your goal is to convince the Court you can do a better job of nurturing and raising your children,
and that you have a lifestyle that is stable and structured enough to do so. Working from home all
or even part-time can help both mothers and fathers in this regard.
27 – Have a financial professional evaluate your settlement proposal. Many long-term factors
have to be taken into consideration in analyzing whether the offer is a good one. A workable plan
takes into consideration how financial needs change over time. The future impact of inflation on
the cost of living is a factor few couples understand in a concrete way, and requires a computer
generated financial analysis to effectively calculate and comprehend. Your divorce settlement
must last a long time. For your own safety, you need a written, carefully projected, professionally
produced financial plan.
Keep taxes in mind. Don’t agree to any asset split arrangement until the after tax impact has been
calculated. Your tax situation may be quite different from your spouse’s. The goal in dividing
income and assets is to see that they are fairly, though not necessarily equally distributed. That
can only be determined once the tax implications for each party are carefully explored.
Also, be certain to insure your plan. If your ex-spouse dies prematurely or becomes disabled, it
may cut off your settlement income. Make life and disability insurance part of the package. That
way your financial security will be intact if your partner dies, or suffers a serious injury or illness.
28 – Create a log. Make a written record of the date, time and nature of all phone or other
conversations with your spouse. Keep an account of all child support and other maritially-
related bill payments. With well-organized data, you’re giving your attorney the tools with which
to prove and win your case, in any contested issue either during or after your divorce. The better
you document things for your attorney, the more likely you are to get the result you want.
Keep an ongoing calendar as a valuable historical record of how you spend time with your kids.
In particular, maintain a visitation log, including a written record of when you are supposed to
see and speak with your kids, and when you actually do. If your spouse isn’t sticking to your
visitation agreement, you’ll have evidence to show the Court. This is especially important if you
sense that your spouse is attempting to alienate you from your children from you.
If you believe that your spouse is emotionally poisoning your children against you, keep an
incident log of specific comments and behaviors your child exhibits, and certainly save all
relevant e-mails. Courts look very unfavorably on the parent who attempts to destroy a
relationship any child has with the other parent.
In New York State, any party to a conversation may record it without disclosing it. Tape
recording may be a necessary strategy if you sense that your spouse is attempting to turn your
children against you. However, speak to your attorney before making tapes of this sort, as various
legal restrictions and tactical considerations may apply. The judge may be uncomfortable in
dealing with secretly taped conversations, and your spouse is likely to be enraged by it.
Also, get receipts from your spouse. You need a written record of all financial and property
related transactions. So don’t give him or her cash or any property, such as silverware or an
expensive piece of furniture, without getting a receipt for it.
Keeping these ongoing accounts is especially important with regard to child support payments,
which have severe consequences on default. If you don’t pay child support you can even go to
jail.
A father retained McAdams Law in a child support case in which he was still being billed by the
Child Support Collection Agency, after his children had all exceeded the age of twenty-one. His
driver’s license, and a professional license and privileges were suspended by the agency. The
firm stopped the child collection order, and had all licenses and privileges reinstated. The Court
ruled that he did not owe his former spouse any more money.
29 – Never sign any agreement you don’t understand completely. When you are asked to
review any proposed agreement, photocopy it and then sit down with a highlighter and a ruler.
Highlight anything you don’t understand, then meet with your attorney and ask for an
explanation. Insist the sections that are unclear or seem ambiguous be re-worded into plain
English that is understandable to you. If necessary, ask your lawyer to draft and add language that
includes specific examples of how an agreed upon item is supposed to work. If you leave room
for other interpretations, it can work to your detriment in the future.
30 – Retain all important divorce documents. If your ex decides to go back to court to
challenge your agreement, you’ll need these papers to defend yourself and substantiate your
position. Ask your attorney which papers to save, and what can be discarded. Shred anything
you’re told to throw away. Keep everything else indexed and organized.
The golden key to your future…
Surprisingly, it’s not money. It’s staying calm, and not allowing anger to derail reason. That
doesn’t mean you shouldn’t have your feelings, just don’t bring them to the negotiating table. If
you can do that, the money issues will be resolved a lot more easily. You will be in a better
position to get the best possible financial outcome, because you’ll avoid fights that end up in the
courtroom, and huge legal fees that deplete your financial future.
With good planning, you’ll know exactly what to expect. You won’t be caught by surprise, and
can negotiate with your spouse in a calm, rational and mutually beneficial manner. This will
allow both of you to move on and build healthy new lives. It’s the path that leads to the best
monetary outcome. Isn’t that what’s really in your best interests, and healthiest for your children
long-term?
Think carefully about these principles. They’ve saved others from unnecessary heartache and
pain, and can do the same for you. Your lawyer only acts on your behalf and at your direction.
Your future is now in your hands.
