Winning at Divorce: A Contradiction in Terms
7/06
No matter how you slice it, divorce litigation is a lose-lose proposition for those going through it. In a highly contested divorce action, only the attorneys for the parties may consider themselves winners and, even then, some attorneys may consider the legal fees earned too high a price to pay for the emotional toll a bitter divorce can take on everyone involved. When children are involved, the stakes and the emotional turmoil are much greater.
While the initial instinct for those going through a break-up of a marriage is to fight as hard as they can to protect their rights, there are two factors that one going through a divorce must consider: (a) the concept of Equitable Distribution; and (b) the Child Support Standards Act.
Experienced divorce lawyers can almost predict the outcome of a divorce case before it ever starts because, in most cases, there is nothing worth fighting over. The concept of equitable distribution means that the Court is ultimately going to divide a married couple’s assets in an equitable manner. There are many factors to consider; however, in a long-term marriage, the end result is probably going to be somewhere near a fifty-fifty split. It does not matter if one spouse was the breadwinner and the other was the homemaker. It also does not matter if one party was a terrible spouse who lied, cheated and made no effort to promote a successful marriage. Equitable Distribution is pure economics. While fault may come into play in determining whether grounds exist for a divorce, fault will typically not play a role in how a Judge divides a married couple’s assets.
Where a Judge has discretion to determine the equitable distribution of the parties’ assets and where a Judge will ultimately determine the issue of child custody, once custody is determined, there is very little discretion that a Judge will exercise due to the existence of the Child Support Standards Act “CSSA.” Most experienced matrimonial attorneys will advise their clients that CSSA is non-negotiable. New York State has established a sliding scale for child support contributions based upon a party’s income and the number of children involved. Matrimonial Courts rarely deviate from the CSSA. For instance, if there is one child, the basic support level is basically 17% of gross income. This goes up to 25% for two children and 28% for three children. The non-custodial parent must make a payment each week or each month for this amount while the custodial parent is deemed to be spending the same percentage from his or her salary on child support. In addition, child support usually includes a pro-rata share of day care costs as well as a pro rata share of unreimbursed medical expenses.
Divorce is extremely expensive. A non-custodial spouse with two children who earns $100,000.00 per year may see approximately $33,000.00 deducted for taxes, an additional $25,000.00 spent on basic child support, an additional $15,000.00 spent on day care. This would leave the non-custodial spouse with approximately $27,000.00 from a $100,000.00 salary to cover his or her own housing, transportation and miscellaneous expenses.
When you add an estimated $10,000.00 to $20,000.00 or more in legal fees per party to litigate a divorce action and you add in accountant’s fees or even fees for psychological evaluations of children, the parties’ assets can be depleted rather quickly.
Divorce will cost both sides money. If you cannot reach an amicable settlement with your spouse before it starts, the only way to win is to retain an experienced matrimonial attorney who will honestly evaluate your case and honestly advise you on how a Court will most likely determine a given issue. Beware of any attorney who advises you that they can “rake them over the coals,” “teach them a lesson” or “bury” the other spouse. In that circumstance, only the attorney is going to come out a winner and its going to be at your expense.