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Litigation. Collaborative Law. Mediation.

To File or Not to File


When COVID-19 hit and the Courts in New York shutdown in mid-March, new divorce actions could no longer be filed. Many couples contemplating divorce were left in limbo. However, as of May 25th, the Courts are now accepting new divorce filings. If you are ready to take the next step and move forward with your divorce, there are many strategic and personal reasons “to file or not to file.”

If you and spouse are looking to resolve your divorce amicably and think mediation or the collaborative divorce process could be a right for you and your family, you can move forward with a divorce without filing a summons and seeking court intervention. In her April 22nd blog post, my colleague, Heather Shulman, explained the different divorce process choices available. Through mediation or the collaborative process, you and your spouse can reach an agreement entirely out of court. Your final separation agreement, detailing the terms of your divorce, will then be submitted to the court for a “rubber stamp” so that you can become officially divorced. If you plan to pursue mediation or collaborative law, there may be no need to file an action for divorce, just because the courts have re-opened. However, you and your spouse may want to agree to a cut-off date for purposes of valuing your assets and liabilities for the reasons explained below.

If you think divorce litigation is the right process for you, it could be crucial to file for divorce as soon as possible. In New York, any income or assets acquired during the marriage are marital property and subject to division upon divorce. If you are employed and have not filed for divorce, everything you are currently earning is marital property (even if you and your spouse agreed to get divorced months ago). Similarly, if you own a business that is expected to increase in value, it may be important to file right away. Filing a new action for divorce triggers a “commencement date,” meaning that anything you earn or any increase in the value of your business after your action is filed, is your separate property.

The same goes for liabilities and debts. As the COVID-19 pandemic has created financial insecurity and rampant unemployment, if your spouse is accruing debt, or their business is plummeting, you may want to file right away so that their debts do not become your debts.

On the other hand, if you are unemployed and your spouse is currently working, or you own the business that is decreasing in value, the timing may not be right to move forward with a divorce.

At Berkman Bottger Newman & Schein, LLP, our experienced divorce attorneys address all your questions and concerns regarding process choices and filing for divorce. We provide knowledgeable guidance to clients in New York City, Westchester, and New Jersey. Schedule your consultation today by calling (212) 466-6015 or reaching out to us through our contact form.