Many people that are contemplating divorce try to figure out when the best time would be to end their dysfunctional marriage. NY divorce attorneys frequently meet with potential clients that are convinced that their marriage is over, yet are conflicted when they should file for divorce and start the process of terminating their marriage. While the decision “when” is very personal and specific to each situation, there may also be strategic advantages and disadvantages tied to the timing of starting a divorce.
The law in New York holds that any actions by spouses prior to filing for divorce are considered to be marital decisions. This means that if one spouse makes a unilateral decision to sell or change the status of one or more marital assets and does so before the divorce starts, it will be deemed in most cases to be a marital decision made between spouses during the course of marriage on consent and the court will not be able to reverse the transaction, no matter how unfair it is to one of the parties. Certainly, if the transaction was done by one spouse in anticipation of divorce and without knowledge or consent of the other spouse, the court can look at such a transaction further. If divorce is filed in New York, it is accompanied by a “Notice Of Automatic Orders” to each side that include that marital assets may not be sold or otherwise disturbed until there is either consent by both sides or an order from the court. NY divorce attorneys must carefully analyze each situation. In cases where potential clients fear that marital assets may be dissipated or sold by their spouse, divorce must be filed immediately.
Another important consideration is retirement and pension accounts. These accounts are subject to equitable division. As such, the money generated in retirement accounts during the marriage are accounted for during the divorce. The date divorce is filed will be considered the last day for calculation of pension portions. Pensions often are one of the most valuable assets of the marriage and play an integral part in divorce. NY divorce attorneys must take this into consideration when advising their clients.
In general, it doesn’t matter who files for divorce first. Filing for divorce first tells the other side definitely that the marriage is over and that divorce has begun. It sets the tone and pace for the upcoming divorce process. Many NY divorce attorneys prefer being the plaintiffs as opposed to the defendants for strategic purposes.
At the end, the most important factor in determine when to file for divorce rest with each client. The client has to be emotionally and financially ready to take this step and has to be sure the the relationship has come to an end. If there are any hopes or actions to be taken to save the marriage, those must be done before the divorce is filed. NY divorce attorneys must put their client’s interest first and allow each client to come to the conclusion to proceed with divorce on their time.