When one spouse decides to seek a divorce, he or she will speak with attorneys to find an advocate for his or her interests. One can find attorneys through personal recommendations, professional referrals, or through professional organizations, such as the American Academy of Matrimonial Lawyers or Super Lawyers. While researching, it is wise to pay attention to the kinds of clients the attorney represents and if the attorney practices exclusively matrimonial law: these answers may provide insight as to the attorney’s focus on and experience with negotiating similar divorces.

After finding an attorney to represent him or her in the settlement negotiations, one should advise his or her spouse to find an attorney as well. It is common practice for the individual seeking divorce to notify his or her spouse directly; in these cases, the individual’s attorney will follow up with a more formal notifying email.

Once both parties have retained counsel, they will consider filing a summons, a legal document submitted to the court that initiates the divorce action. The decision of whether to do so is made with their attorney. This is known as the date of commencement, which has ramifications for maintenance and marital assets. While the summons is a legal document filed with the court, it does not indicate that the divorce will be litigated. In a negotiated settlement, often parties wait until the end of the case to file the summons, which is a necessary step in obtaining a divorce.

As an alternative, sometimes parties will agree to choose a date of commencement on their own instead of filing a summons. This is commonly called a “commencement date agreement.” Parties may choose a commencement date agreement for various reasons including not wanting the case to “feel litigious” or a desire to choose a prior date for the date of commencement that is agreeable to both parties.

Alongside their attorneys, the parties often complete statements of net worth. This is a document that outlines the parties’ assets, liabilities, a monthly overview of expenses, and basic financial information. It is also common, but not necessary, for the parties to exchange financial documents such as paystubs, tax returns, bank statements, and documentation about real estate or businesses as part of the discovery process.

In some cases, the parties may decide that they don’t want or need to exchange a statement of net worth or discovery. It is possible to waive this step of litigation so long as it is done so knowingly and with full understanding of the option to gather information and documents.

If necessary, the parties work with appraisers as necessary to determine the value of any real estate, personal business, or valuable personal property.

Once the parties have all the financial information they need, their attorneys will begin negotiation. There is no one way that negotiations have to take place, and it may involve a combination of letters, phone calls, and meetings between the attorneys and the parties.

Negotiation addresses all elements of the divorce, including the equitable distribution of assets, custody of children, child support, spousal maintenance, taxes, and any business interests.

Once the parties have resolved all outstanding issues, the attorneys draft a settlement or a separation agreement. If the parties have not already done so, the summons will be filed with the court prior to the final execution of documents.

The parties sign the final settlement or separation agreement. If the parties are moving forward with a divorce, the attorneys prepare all of the requisite divorce documents to be filed with the court.

Parties will determine whether they will distribute marital assets equally or equitably. The current statute in New York calls for the equitable distribution of assets; however, the longer the parties have been married, the more equal the distribution of marital assets tends to be, particularly if the parties have children. 

Appraisers may be consulted to value the various assets, such as real estate or jewelry. Once the assets have been appraised, the parties can determine how they will be distributed.

In New York, spouses have the right to inherit one third of the other’s estate if he or she has been disinherited by the spouse. Through the settlement agreement, the parties can waive this right or provide alternatives.    

Maintenance, commonly known as alimony or spousal support, may be payable by the monied spouse to the non-monied spouse and is pursuant to a statutory formula. The parties’ incomes will be used to determine the amount of maintenance to be paid. This income could come from a W-2 or K-1, from capital gains, interest, or dividends, etc. If one party receives routine gifts from family or trust distributions, that may be imputed as income to that person. Similarly, if one party is out of the work force and is capable of working, the court may look at that person’s education and past experience and impute income to him or her as well.

As of 2024, in New York maintenance is capped at $228,000. The court can look at a series of factors to determine if spousal support is going to be paid in an amount different from the cap. In such cases, the court may look at the standard of living before the divorce action as well as the health and needs of one of the parties. 

The duration of maintenance is also formulaic and based on the length of the marriage. For marriages under 15 years, spousal support is paid between 15 and 30 percent the length of the marriage. The longer the couple was married, the longer maintenance may be paid. 

If the parties have children, they will determine custody, both legal custody (decision making) and physical custody (where the children spend their time overnight). 

They will also determine to what extent child support is payable. If the parties share physical custody equally, child support flows from the higher earning spouse to the lower earning spouse. Otherwise, if they do not equally share physical custody, support is paid by the parent who has the children less frequently, regardless of whether that party’s income is lower. The court requires that a statutory minimal amount be included in the agreement, even if the parties decide that child support will not be payable. Additionally, child support is payable until the child turns 21, and most parties agree that it is payable until the child turns 22 if they are still in college. As of 2024, in New York child support is capped at $183,000. Like with maintenance, the court determines if child support will be payable in excess of the statutory cap by considering statutory factors. 

The parties will also make determinations regarding the payment of statutory add-on expenses for the children. These include health insurance, unreimbursed medical expenses, childcare, and education. These expenses are paid proportionate to income. Many people in New York also add such expenses as extracurricular activities. 

Most settlement agreements address taxes. The parties can file their taxes jointly if they are still married as of December 31, but after that they must file their taxes separately. Additionally, the agreement can govern what happens if a party is audited for previously filed tax returns and how liabilities and refunds will be distributed and divided. If the parties have multiple children, the agreement can determine how the children will be claimed as dependents on the parties’ tax returns.

While a couple may determine that they will divide their marital assets equally, business interests are often handled separately. The titled spouse typically retains most of the business’s assets. For example, the titled spouse might keep 75% of the business interests and the non-titled might receive 25%. This often depends upon the non-tilted spouse’s efforts to increase the value of the business. These efforts could be indirect, such as taking care of children while the titled spouse worked long hours. A valuation expert will help determine the business’s value for the purposes of distribution.