The Questions Clients Actually Ask

Almost always, no — not until you have talked to a lawyer. I understand the impulse. Living in the same house as someone you are divorcing is miserable, and leaving feels like the decent thing to do. But moving out has consequences people do not see coming.

First, if your children stay behind, you have just created a status quo where they live primarily with the other parent. Courts pay attention to stability, and the longer that arrangement runs, the harder it becomes to change. Second, you may now be paying for two households while your spouse stays in the one you own. Third — and people find this counterintuitive — leaving does not forfeit your ownership interest in the house. Under New York’s equitable distribution statute, DRL §236(B), the marital residence is marital property regardless of who is sleeping in it or whose name is on the deed.

There is one clear exception. If you are unsafe, leave. Safety comes before strategy every time, and we can address the legal consequences afterward.

No. This is one of the most common fears I hear, and it is wrong.

New York decides custody on the best interests of the child — the factors the Court of Appeals laid out in Eschbach v. Eschbach. Income is not on that list. What is on that list: which parent has been the primary caregiver, the stability of each home, each parent’s ability to provide for the child’s emotional and intellectual development, each parent’s willingness to support the child’s relationship with the other parent, and the child’s own wishes depending on age and maturity.

The money question gets handled separately, by child support. That is the entire point of the Child Support Standards Act — the higher earner contributes financially so that income disparity does not decide where a child lives. A parent who makes less does not lose their child. A parent who has done the school pickups, the doctor’s appointments and the homework for ten years walks into court with something a paycheck cannot buy.

Less than you want it to, and I say that gently, because for most people this is the wound at the center of everything.

New York has been a no-fault state since 2010. Under DRL §170(7), one spouse swearing the marriage has been irretrievably broken for at least six months is enough. You do not need to prove adultery, and proving it will not get you a better share of the assets. Equitable distribution under DRL §236(B)(5)(d) looks at the length of the marriage, each spouse’s contributions, the age and health of the parties, the loss of health insurance and inheritance rights — not who was faithful.

Where infidelity can matter: if marital money was spent on the affair — the apartment, the trips, the gifts — that can be wasteful dissipation of marital assets, and a court can account for it. And if the affair involved exposing the children to someone who poses a genuine risk, that is a custody issue.

Here is the harder truth. Clients who go into a divorce needing the court to declare their spouse the villain usually spend more money and finish more damaged. The court is not a place where you get to be told you were wronged. That is what a good therapist is for, and I mean that as a serious recommendation, not a brush-off.

No. And doing it will hurt you badly.

Support and parenting time are separate obligations in New York. Withholding one because the other is being violated does not create leverage — it creates a violation petition against you. Arrears accrue, they are not dischargeable in bankruptcy, and the enforcement tools under the Family Court Act are real: income execution, license suspension, and in serious cases a willfulness finding that carries up to six months in jail.

Meanwhile the parent denying you access has committed a separate violation, and you have a remedy for it — a petition to enforce the parenting-time order. Use it. If you self-help instead, you walk into court having handed the other side the only thing they needed.

Keep paying. Keep a written record of every denied visit. Call your lawyer.

The honest answer is that it depends less on me than it does on the two of you.

An uncontested divorce where you have already agreed on everything is a matter of preparing papers correctly and getting them through the court. Mediation, where a neutral helps you reach that agreement, sits above that. A fully litigated case with motion practice, discovery, forensic accountants and a trial can be an order of magnitude more — not because lawyers are expensive per hour, but because conflict is expensive per hour. Every motion, every deposition, every fight over a subpoena is billable.

The single biggest lever you have over your legal bill is how much you are willing to negotiate. The second biggest is being organized — every hour I spend chasing a bank statement you could have sent me is an hour you are paying for.

I will give you a candid estimate at the consultation, and I will tell you if I think your case belongs in mediation instead of litigation. Turning away work I do not think you need is not charity; it is how I would want to be treated.

She gets to be heard. She does not get to decide.

New York has no magic age at which a child chooses. A child’s preference is one factor among the Eschbach best-interests factors, and it carries more weight as the child gets older and shows more maturity. A thoughtful fourteen-year-old with real reasons will be taken seriously. A fourteen-year-old who wants to live with the parent who has no bedtime will not.

Her wishes reach the judge through the Attorney for the Child — her own lawyer, appointed by the court, who speaks for her position. (I serve on the AFC panels in Erie and Niagara Counties, so I have sat on the other side of that meeting.) Often the judge will also speak with her privately in a Lincoln hearing, on the record but out of the presence of the parents, so she can be honest without feeling watched.

One caution. If a child’s stated preference sounds rehearsed, or arrives suddenly after a period of one parent’s influence, courts notice. Coaching your child does not help you. It does real harm to her, and judges have long memories.

Yes, and this is exactly the situation where litigation earns its cost.

Both spouses in a New York divorce must file a sworn Statement of Net Worth. From there, discovery gives us subpoena power: bank records, brokerage statements, business books, tax returns, credit card histories. If the picture does not add up, we retain a forensic accountant, and forensic accountants are very good at finding the shape of a thing by the hole it leaves.

The patterns are not subtle once you know them — a business that suddenly has a bad year the moment a divorce is filed, ‘loans’ to a sibling, a deferred bonus, cryptocurrency that appeared and vanished. Note also that on the day a divorce is commenced, the Automatic Orders under DRL §236(B)(2)(b) take effect and prohibit transferring or dissipating marital assets. Violating them is contempt.

This is also the clearest case where mediation is the wrong tool. A mediator cannot subpoena anything. If you do not trust the disclosure, you need a process with teeth.

An uncontested divorce in Erie County typically runs a few months, most of which is the court’s own processing time rather than anything either of us is doing. Mediation usually takes a handful of sessions spread over a few months, and then the paperwork. A contested case is measured in the range of a year to several years, depending on how much is truly in dispute and how the court’s calendar is running.

What actually drives the timeline: how many issues are genuinely contested, whether either side needs valuations or forensic work, and — more than anything — whether both parties want it to end.

Something I tell people at the first meeting: the fastest divorces I have handled were not the simplest ones. They were the ones where both people decided, early, that they would rather be finished than be right.

You need someone who knows what you have not thought of.

The couples who tell me they agree on everything usually do agree on the things they have thought about — the house, the car, who gets the kids on Christmas. What they have often not addressed: how the pension is divided and whether a QDRO is needed to do it without a tax catastrophe; who carries health insurance and what happens when the divorce cuts off coverage; what happens to college costs, which under DRL §240(1-b)(c)(7) a court can order; how the child support number is actually calculated under the CSSA rather than guessed at; and what happens if one of you loses a job in three years.

A separation agreement is a contract you will live inside of for a long time. The cost of having it drafted properly is a rounding error against the cost of litigating an ambiguity in it five years from now.

That said — if you genuinely are aligned, an uncontested divorce or mediation is the right and affordable answer, and I will tell you so.

Safety first. Everything else is second.

If you are in immediate danger, call 911. Beyond that, you can petition Family Court for an order of protection, and you can seek one on an emergency basis by order to show cause when waiting is not safe. That order can direct your spouse to stay away from you, your home, your job, and your children, and it can be granted the same day.

Two practical things. Document — texts, photographs, dates, anything. And do not let anyone, including a well-meaning friend, tell you that mediation is the fair-minded choice. Mediation assumes two parties who can negotiate as equals. Where there is fear, that assumption is false, and a process built on it will produce an agreement that reflects the imbalance rather than correcting it.

You are allowed to need the court’s protection. That is what it is there for.

They treat the first sixty days as a period to survive rather than a period that sets the terms of everything after.

What happens in those first weeks becomes the status quo, and status quo is powerful in family court. Where the children sleep. Who pays what bill. Who stays in the house. Those become the facts on the ground that everyone argues from later.

The other thing — and this one is human, not legal — people negotiate from the emotion they are in. If you are in the acute phase of grief or rage, you will either give away things you needed or fight for things you did not want, and you will not be able to tell which one you are doing. There is no legal fix for that. Slow down. Get support. Do not sign anything, and do not send the email you drafted at midnight.

No. What you tell me in a consultation is privileged, and that is true even if you never hire me.

Two caveats worth knowing, because I would rather you hear them from me. Privilege protects the communication, not the underlying facts — if there is a bank account, the account still exists and is discoverable whether or not you told me about it. And privilege can be broken if a client seeks help to commit a fraud on the court.

Which is really an argument for telling me the bad facts early. I have never been ambushed by something a client told me. I have been ambushed by something a client hoped I would not find out.