Common Concerns In A New York Divorce

If you are considering a divorce, or you think your spouse might be considering a divorce, you probably have a lot of questions about the process and the next steps. You may be wondering whether you should be the first one to file in case filing first provides advantages, or how marital debts are divided. Or, maybe you have children and you are concerned about child support payments.We understand that the idea of divorce can be overwhelming and fill you with uncertainty. This article will address some common concerns people have about divorce, including:

• What you should do if your spouse has more debt than you, debts incurred recently, or debts you were not aware of.
• Whether or not you should move out before your divorce is finalized – and what to consider before moving out.
• The strategic reasons you might want to file for divorce before your spouse.

Can I Protect Myself from My Spouse’s Debts Or Ensure My Spouse Will Help Me Pay The Debts We Incurred Together?

In a New York divorce, the presumptive rule is that marital debts are divisible 50-50, as of the time of the filing. Under New York state law, names on accounts do not matter, which means that both parties generally share debt equally.

The only factor which matters (in terms of whether it is marital debt) is whether the debt was accrued during the time of the marriage. If it did, then the debt is presumptively divisible 50-50. However, there may be ways to avoid paying for high debts that were incurred solely by your spouse, and you should have a lawyer look into certain debt circumstances.

For example, imagine that your spouse informs you they have $30,000 on their credit card. You did not know anything about this debt, and you do not understand how it occurred since there is enough money for both of you to pay your expenses. In this case, you would want to communicate with your spouse and investigate how and when this debt occurred.

The best method for resolving this is to have a paper trail. You could do this by asking for credit card statements or account access. You may also want to work with a financial planner who can help you both look over the records and create a plan to pay off the debt.

Ideally, you want to find out how the debt accrued. In other words, did your spouse start purchasing a lot of expensive clothes for themselves, contrary to their ordinary behavior? While this is not always the case, it can be common for one spouse to hide money or debt when anticipating a divorce.

One technique you can use when reviewing debt statements is to check if there are high charges from particular stores. Your divorce attorney would want to look over receipts, invoices, and bills for specific purchases. Depending on the amount of debt, this can help determine whether it is worth sending a subpoena to the store where your spouse purchased items.

A subpoena can show whether a particular item was returned. Sometimes individuals purchase high-value items and then return them to get cash rather than putting the money back on the credit card. They can then hide the cash or give it to a friend or family member to keep for them.

For example, if your combined credit card debt is $30,000 – and because it is presumptively divisible 50-50 – you now presumptively owe your spouse $15,000. An unwitting spouse might agree to pay for half of the debt, not knowing the full situation. This is just one of several situations that you may want a professional to investigate, especially if there are suspicious charges on the debt statements.

Do I Need to Move Out Before My Divorce Is Final? Will Moving Out Revoke My Property Rights?

In general, you do not need to move out before your divorce is finalized, nor does this negate any of your property rights. Parties are not obligated to remain living under the same roof, but there are a few factors that should be considered before one party moves out.

For starters, you and your spouse should have an agreement about who will be paying the rent, mortgage, or utility bills for the property while the divorce is pending. You should ensure that there is confirmation or a stipulation in place to determine who is responsible for paying each bill.

You probably would not want to begin renting another residence if you still owe half of the mortgage on the shared property. Before you sign a lease on an apartment or another house, you would want to make sure that you can afford both payments.

In addition, if there are any spousal maintenance or child support issues, those should be confirmed before you move out. At the very least, you should get a stipulation through your divorce attorney.

In a recent case, a client signed a lease on an apartment, but the management office informed her that after running her credit check, they did not believe she could afford the apartment. They asked for either a co-signer for the lease or a certification from a divorce attorney stating what she was expected to receive from her divorce case.

These types of situations can cause a lot of problems, especially if you have already made plans to move, rented a moving truck, paid application fees, etc. Before deciding to move out or sign another lease, you should make sure to confirm any potential issues.

Will The Court Order Me or My Spouse To Pay Child Support From The Time Of Separation?

Usually, child support is paid starting from the date of the divorce filing and is not paid retroactively to the date of separation. If you and your spouse are separating, or if you anticipate a divorce in the future, it is crucial to communicate with your spouse and figure out child support sooner rather than later. This is especially true if one parent is a stay-at-home parent, or if one of you moves out.

If your spouse does not want to commit to child support payments or does not follow through on their commitment, you should file for divorce, or possibly even file an emergency motion. The courts generally respond quickly to emergency motions, and you will often get a court date in as soon as two to four weeks. Even in the greater New York City area, they should see you within a month or so.

Ultimately, if your spouse is moving out or you have limited income, you want to ensure you have confirmed financial arrangements. If you are not fully confident that your spouse will follow through, hire a divorce attorney and be ready to move forward with an emergency filing.

Is There Any Benefit to Filing For Divorce Before My Spouse In New York?

Generally, there are no significant benefits to filing for divorce before your spouse. There might be some strategic reasons why you may want to file first, such as if your spouse is filing in the county where they reside and you want to file in the county where you reside. If there are children involved, it is usually better to file in the county where the children reside.

Other reasons to file first might include ending a marital asset pool or starting the filing sooner to limit the potential duration of spousal maintenance. Waiting longer to file for divorce equates to additional accrual of assets that you will have to share with your ex-spouse. In addition, domestic violence issues or starting child support or spousal maintenance payments could be reasons to file divorce sooner.

These are some of the strategic reasons to file before your spouse, or just sooner in general. However, filing first is not a factor for the court in determining the distribution of assets or awarding spousal maintenance or child support. For more information on Financial Considerations in A New York Divorce, an initial consultation is your next best step.