Nothing will increase the cost of your divorce case faster than failing to weigh the cost of the fight. Here are my top four tips about what is really worth fighting for and what you need to learn how to let go:
1. Affairs and other reasons for divorce. Won’t the judge throw the book at your spouse if s/he’s been sleeping with the yoga instructor for the last year? (or, uh, will you get in trouble because you’ve been sleeping with the yoga instructor?) Legally speaking, the simple answer is: No.
Affairs and bad marital behavior are not something that the courts want to hear about (unless those wrongs pertain to custody issues). For the most part, that means that taking a “lotus position” with the yoga instructor – as emotionally devastating as that might be for you – isn’t going to change the division of assets.
TIP: Channel your energy to other areas of the case and don’t waste legal fees fighting about misdeeds that don’t impact the division of your assets.
Still angry about that affair? Focus instead on recovering “marital waste” — aka, the money spent on the affair partner. For example: she bought the yogi a Rolex, which is a misuse of marital funds that you can recapture known as “marital waste.”
2. Alimony. If your spouse and the yogi are shacking up together will that hurt a claim for Alimony? Short answer: Oh yeah! Courts won’t want to award much alimony when the spouse seeking it has moved in with (and is being supported by) a romantic partner, especially when that person is paying their living expenses.
We talk about alimony as a tool to help one spouse get back on their feet when the other is earning much more, particularly in cases where one was a home-maker and sacrificed a career (or needs training to get back into the job force).
TIP: The longer the marriage, the longer the support. But, courts, for the most part, are moving away from the idea of lifetime alimony. And, when your soon-to-be-ex- is getting support from a new romantic partner, many courts find that means alimony should end.
And, some of my best advice for home-makers: getting a paying job will empower you to make your own decisions and be less reliant on a “provider” in the long-run. Get creative – a job doesn’t have to mean 9-to-5 hours these days!
3. Child Support. Your kids are still your responsibility, and that means even if a new partner is on the scene, you still may have to pay child support if the kids aren’t primarily living in your house.
TIP: The court isn’t focused on your financial bottom-line; the kids are the primary concern for the court.
Let’s get a little philosophical: maybe you feel like the “child doesn’t need” that level of support. But the extra funds might get your ex- into a better apartment, which in turn gets your kid into a better apartment and, perhaps, a better school district with peers more likely to attend college. See how these issues are tied together?
I hear this allot from male breadwinners: “what if she’s just spending the money on fancy shoes and fake boobs?” Well maybe those floatation devices will land her a new doctor-husband, who lives in a better apartment, which gets your kid back in a better apartment increasing the kid’s chances to go to college… #meta.
Maybe child support feels unfair, or maybe you just need a new way of thinking about spending for the child. Either way, be cautious about how much you fight over the numbers when the numbers are statutory. Use your legal fees on something else (like terminating alimony because of the doctor-husband; or showing that the boob-job was a misuse of marital funds!)
4. Retirement accounts. Your employer and you have been setting aside money for your retirement from your job. Retirement savings may feel personal, but they are really marital income.
But your spouse didn’t work, so why should s/he get YOUR pension? Really? A spouse who stays home has helped you get where you are – by doing your laundry, taking care of the kids and cooking (or burning) your dinners. These are all time-consuming tasks – and trust me, they interfere with the ability to work long-hours. You didn’t make it where you are alone my friend.
TIP: In New York, the law provides your spouse with half your pension from the date of the marriage to the date of the Summons for Divorce.
If you started working before the marriage, that income saved in those years will be yours. But, in all honesty, pension division is complicated and you will 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.
Have you wasted fees fighting about affairs or plastic surgery? Discuss in the comments.