Here is my run-down of the four most common questions that I hear from primary bread-winners facing or contemplating divorce:
1. Adultery and other grounds for divorce. She’s been sleeping with her tennis coach for the last year – doesn’t that matter? (or, uh, you’ve been sleeping with your tennis coach, does that matter?) Legally speaking, the simple answer is: No.
Overall, the wrongs committed during the marriage are not something that the courts want to hear about (unless those wrongs pertain to custody issues). And, for the most part, that means that her tango with the tennis instructor – as emotionally devastating as that might be – isn’t going to change the division of assets.
2. Alimony. If she and the tennis guru are shacking up together will that hurt her claim for Alimony (called “maintenance” in New York)? Short answer: Yes, most likely! Many courts are reluctant to award much alimony when the spouse seeking it has moved in with someone else – particularly if that tennis coach is paying her living expenses.
Alimony is aimed at helping equalize the situation where one spouse’s income is much greater than the other, particularly where she stayed at home and sacrificed a career (or needs training to get back into the job force): the longer the marriage, the longer the support. But, courts, for the most part, seem to be moving away from the idea of life-time alimony. And, when she may be getting support from a new romantic partner, many courts find that means alimony should end.
Some of the best advice that I ever heard given to women (and worth repeating to men whose wives stay at home): getting a job will empower her to make her own decisions and be less reliant on you in the long-run.
3. Child Support. Wait, you said if she’s living with Sven, her Swedish tennis coach, I don’t have to pay, right? No. I said you don’t have to pay her – your kids are another matter.
I set out why child support (in theory) is fair in a prior blog that stirred much debate in the comments. My take-away from most child support schemes is that the children need to be the focus of the court’s concern. Perhaps you feel like you are paying her too much and the “child doesn’t need” that level of support. But the additional money might get her a better apartment, which in turn gets your kid into a better apartment and perhaps a better school district. These issues are tied together. But, even if you have shared time, you might get stuck paying child support to your ex-spouse. Maybe that feels unfair, or maybe it needs to be accompanied by a new way of thinking about spending for the child.
4. Pensions. Your employer and you have been setting aside money for your retirement from the job. But that is basically a form of marital income. Think about it: if she’s staying at home full-time, how could she be setting aside anything for her retirement? She’s helped you get where you are – by doing your laundry, tending to your dry-cleaning, preparing your meals, doing food shopping and cleaning, and taking care of the kids. These are all time-consuming tasks that you would have to handle alone without her – and trust me, they interfere with your ability to work long-hours.
In New York, the law provides her with half your pension from the date of the marriage to the date of the Summons for Divorce (or another agreed upon date – like the date you sign a separation agreement). If you started working before the marriage, those years are yours. But, in all honesty, pension division is so complicated that most of us need forensic accountants to help with the process. So, on top of sharing your pension, be prepared to pay an expert to help value and divide those assets.
Tell me about other issues you feel should be addressed in the comments.