I have a female friend in NY state (advice specific to NY would be very helpful) that
is contemplating divorce. I realize you may or may not be lawyers, you’re not her lawyer, etc. Just practical advice is needed at this point. Some details below:
She has been married going on 20 years, not any of which would qualify as overall happy.
The husband works full time, she does not work at this time, full time at-home mom to an adopted child.
She has worked on and off at her own business during the marriage.
No reportable physical abuse, some things that may be considered that, more often emotional abuse. Would prefer not to go into detail here.
So for any of you that have gone through this, how does she go about the process in a practical manner? She has no money to spend on a lawyer that he won’t immediately know about. She has no place to go, or money to get a place, :dubious:and is concerned that he will basically kick her out of the house they live in without her child.
She is looking at a couple of law offices that have free consults, but any advice would be appreciated.
Yep, not a lawyer… nor am I specifically versed in NY law. But have been divorced and have developed a basic understanding of the system, So here goes.
NY is unique among US states that you have to have either agreed upon grounds for divorce or the filing party has to prove the grounds to the courts satisfaction. Emotional abuse could qualify, but your friend better be able to provide some documentation. Her husband can contest the grounds and theoretically prevent a divorce at all. If possible she may want to investigate initiating divorce in another state, as I think every other state has gone to no-fault divorces.
She should probably be able to get some alimony/spousal support, given the length of the marriage and the fact that she is a full time homemaker. But that will be reduced by the fact that she has worked during the marriage. The court will likely require her to work and support is unlikely to be huge or permanent.
If she does kicked out of the marital home and cut off of joint accounts, that would provide grounds for divorce on “abandonment” causes. But that requires a year or more to demonstrate. Not the most fun way to get cause. And in any case NY is “equitable distribution” state. So she will get a “fair” but not exactly equal share of assets. Fair usually does mean pretty close to equal, but there are a lot of significant exemptions that can be carved out, especially if the partners had very different wealth levels prior to the marriage. So if the husband is wealthy and has a good lawyer, she should be prepared to receive a lot less than half of their combined property.
Many lawyers will work on deferred payment. Basically they expect to be paid out of the final settlement. So there shouldn’t necessarily have to make any immediate payments. But it is reasonable to guess that a firm that is willing to risk fees up front is likely to charge a bit more in total. And a law firm can draft a temporary order for the court to prevent him from kicking her out… or to establish her in a secondary home until the proceedings are complete.
But as said, she really should hie herself to a lawyer. This may be educated guesswork, but it is still guesswork on my part. Divorce law is tremendously complicated.
My first thought upon reading this was: how medieval! How unamerican! Thankfully, New York passed a bill permitting no-fault divorce in 2010 (the last state to do so), according to Wikipedia. Cite.
OP, this is advice I’d give to anyone looking to escape an abusive relationship: she doesn’t need a reason to divorce the guy. Recommend that she start socking money away yesterday, however possible. Tutor during the day while her husband’s at work, steal singles from his wallet when he isn’t looking, reopen her business, buy stuff with cash from the joint checking account then secretly return it later, whatever it takes. Open a savings account at a bank she’s never banked with before, and have them put a note on the account that the husband is in no way allowed access to it (just in case). Go totally paperless, as well. A retainer shouldn’t cost more than a couple thousand dollars.
If the situation is dire, she should pack up a couple suitcases while he’s at work one day and go to a women and children’s shelter (leaving a note for the hubby so he doesn’t report them missing, but don’t tell him the location of the shelter of course). If she goes this route, she should get assistance finding a job, and will gain access to free or greatly reduced legal assistance. Or if there’s a friend/family member she can stay with temporarily, that’s also good. She can file a restraining order if she has reason to think he would come after/attack her. Emotional abuse doesn’t leave marks, but neither does stalking. And if you can file a restraining order against a stalker, she can file one against her husband.
Custody is rarely an easy battle, no matter who the breadwinner is. There is no way for her to guarantee that she will end up with custody… but, assuming she doesn’t have a drug problem or something like that, the courts *usually *assign at least 50/50 custody. She may have a better chance than average at full custody, though. Particularly if the child is young. Extra-particularly if there is a pattern of emotional abuse. Even if there’s not a trail of police reports littering the ground behind her, that doesn’t mean she won’t be believed.
Is there a way she can get her husband to let her see a therapist? She could pretend it’s from parental stress or friends or something. The therapist won’t tell her husband the real reasons for going, and this would be a good way to start the paper trail.
Many shelters for battered women have legal departments that may offer free advice even if she is not at the shelter. If nothing else, they should be able to refer her to local agencies.
When I went through a similar divorce, the shelter helped obtain a grant that paid for my divorce. It was with federal grant money, though, and may no longer be an option.
Is she on the deed of the house? If so, it would be difficult for him to legally kick her out. Is she not listed as an owner on their bank accounts (joint)? If so, then tell her take half the money out, change the locks on the house after the hubby goes to work and call him and tell him that she wants a divorce. And that until they can work out the details, he’s going to have to live somewhere else.
Thank you all for the input. I will point her to this to get some ideas as to how to get started. I think she is calling lawyers today, although I don’t know how soon she can actually get in to see someone with details.
I did mention to her that she is, in effect, part owner in everything they have, and I don’t think he can “Kick her out of the house”, but she has been beat down for so long, that getting her to stand on her own and see that she has rights is difficult.
No, she is an actual person I know and have known for 25 years. Know her family/history, not a terribly good story.
But I get where you’re coming from, and agree- If she wants to leave, she will. But she genuinely seems to not know what she can do, and I feel like I’ve done my part in pointing her in the direction of help (if she wants it).
The wiki article has oversimplified it. Yeah, they’ve moved closer. NY has added mutual consent. Prior to 2010 you had to prove one party to be at fault, even in an uncontested divorce. But barring mutual consent it is still possible for one party to refuse to consent… then you need to prove cause for divorce. Here is what the wikipedia article you linked to used as a reference. It is still possible to prevent one partner from unilaterally divorcing the other in NY.
No, not a contingent-fee basis. But it is legal and ethical to defer fees. My ex went that route during my divorce. I paid my lawyer a retainer up front, and paid for the additional time and fees as they accrued. My ex didn’t pay a single cent until after the settlement was signed. But there was no contingency basis. She would have been on the hook for the full amount regardless of the terms of the settlement.
In any case, yes a free initial consultation, is pretty common. And is a great place to start.
I find this a bit strange. On the one hand, you say since she’s on the deed it would be difficult for him to kick her out. Then two sentences later, you turn around and say she should kick him out.
[I actually agree with you that it could be practical - the laws as enforced give women the upper hand in these situations. But it’s an odd juxtaposition.]