At the commencement of a divorce action in NYS, there are “Automatic Orders” that have the following effects:
- Restricting the ability of both parties to transfer property or money held individually or jointly, except under limited circumstances.
- Restricting the ability of both parties to change the beneficiaries of insurance policies;
- Restricting the ability of both parties to incur debts.
The orders go into effect against the Plaintiff as soon as he or she files for divorce. The orders go into effect against the Defendant as soon as they are served with notice of the orders, which takes place when they are served with the summons that commences the divorce against them.
Knowing this, a dishonest party who wants a divorce, or who expects to be served with divorce papers, has a motive to move money or property, change beneficiaries on insurance policies, or incur debts, before the automatic orders take effect against them. A party who violates the orders once they are in effect can be held in contempt of court. A party who wishes to protect their assets from a dishonest spouse should quickly file for divorce, and serve their dishonest spouse with notice of the orders before it is too late.
What Are The Options For Proceeding With A Divorce In New York?
There are three basic options, and the best one for each individual contemplating a divorce is dependent upon the unique circumstances of each.
- Mediation: When both parties are capable of being civil with each other, and working together to achieve a separation of property and family responsibilities that is fair to each, mediation is an excellent consideration. In mediation, a lawyer who usually has undergone specialized training will sit down with both parties and attempt to assist them in the production of a written agreement that will then be utilized by the parties to divide their property between them, resolve the issues of child custody, child support, and spousal maintenance, and then help the parties map the course that will actually terminate the marriage itself.
In most cases, when parties work with a mediator, they have already undergone marriage counseling, and have already discussed many of the issues that will be discussed with the mediator. However, as a lawyer both knowledgeable and experienced in the complexities of domestic relations law, the mediator will take the next step and confront the parties with the stark realities of dividing their wealth, the time that will be spent with their children, the cost of supporting their children, and often the cost of supporting the “less monied spouse.” A good mediator will not pressure the parties into concluding their marriage via divorce. Often, parties will leave the mediator with a clearer sense of what divorce actually means for them, and will opt for another attempt at marriage counselling.
However, while a mediator is obligated to be neutral, and may genuinely strive to meet that obligation, there is an inherent conflict of interest. The mediator cannot zealously represent both parties at the same time, and will not try to. Instead, the mediator will be meeting with both parties together, and will strive to get the parties to reach compromises. Because a divorce is an emotionally traumatic ordeal, as well as a financial transaction, a party may enter into unwise compromises simply to end the ordeal.
For this reason, while a mediator may be a good place to start, I always advise clients to seek individual legal counsel after the mediation, to review the resulting agreement with their own zealous legal advocate who will point out, in clear terms, the compromises that are being made without the other spouse present. In this way, with eyes free of tears, each party has the opportunity to conduct a cool-headed review of the terms of the life altering contract they are contemplating, which will bring the force of the law upon them once signed by a judge. Too often I have had clients come to me with mediated agreements that are already years old. Now they have a cool and clear-eyed understanding of the contract they are bound by, and now they find themselves hiring a new lawyer to help them fight it. Often it is too late.
A good mediator is a combination family counselor and divorce lawyer. A mediator is a good idea when the parties trust each other, have a good idea of what they possess, and are both interested in doing what is best for their children.
- Hire an attorney but don’t file for divorce right away: This is often the best approach. Many lawyers, while zealously representing their clients, nonetheless view each other as colleagues. If a client wants an amicable divorce to the extent possible, and importantly, wants to save money, I will often begin with a simple letter to the opposite spouse notifying them of the pending divorce, and advising them to hire a lawyer of their own choosing and have that lawyer contact me.
Once I am contacted, I will work with that lawyer to identify all of the assets and issues in the divorce, and then one of us will begin to draft a written agreement. Each of us will then sit down with our clients and review the written agreement, negotiating changes as appropriate. Often, if there is an impasse on an issue, the four of us will meet together, the parties and their lawyers, to discuss the issue and see if we can reach an acceptable compromise. There is no conflict of interest, each lawyer zealously represents their own client, but the approach is more cooperative than conflictive. Finally, when a full written agreement has been signed by both parties, one of the parties will file for the divorce. Often in this way the matter can be resolved without either party ever setting foot inside a courtroom.
- Immediately filing for divorce: Filing immediately is only advisable when there is a need for immediate court intervention. This need for court intervention can take many forms, and can be sought either in Family Court or Supreme Court.
In Family Court the moving spouse can obtain an Order of Protection, or an Order of Custody of the children, or an Order of Visitation with the children, or Spousal and Child Support. There is no cost for filing in Family Court, and the process is usually quicker than it is in Supreme Court.
In Supreme Court the moving spouse can obtain all of the relief that is available in Family Court, and can obtain additional relief that is not. For example, if the moving party is the “less-monied spouse,” they can get a court order requiring the “monied spouse” to contribute to their legal fee. Also, if the moving spouse is uncertain about the assets that the other spouse possesses, the court can issue orders and sign subpoenas forcing disclosure. In all divorce actions, there are “Automatic Orders” that take immediate effect, restricting the ability of both parties to move assets, change insurance agreements, and incur debts.
Filing for divorce immediately doesn’t mean that the attorneys won’t work together to try to reach an agreement that is mutually beneficial to both parties. However, it is definitely more aggressive, and sets the matter onto a tighter schedule, versus trying to resolve the divorce without court intervention. And in the rare cases where the marriage is a truly toxic relationship, it may be the only appropriate course.
Like all things in the field of domestic relations, there is no “once size fits all.” To determine the best course for you, it is worthwhile to meet with an attorney for an initial consultation and discuss your individual circumstances.
For more information on Filing First For Divorce In New York State, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 618-5995 today.
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