Timing of Divorce

Experienced Family Law Attorney Representing Spouses in New York City

One of the first questions that people considering a divorce may address involves the timing of the divorce. There may be legal and financial factors that you want to consider when deciding when the right time is for filing the divorce papers in your situation. Ideally, you can work with your soon-to-be ex-spouse to strategize the best timing for both of you, but that may not always be possible. There may also be emotional or safety considerations that influence your decision. You should keep in mind that a divorce is a legal process, and you can still live separately while waiting for the right timing for your divorce. If you have specific questions about the timing of your divorce, New York City divorce lawyer Ingrid Gherman is ready to address them for you.

Filing for Divorce

When you should file for a divorce will depend on a number of different factors. In New York, in order to take advantage of the “no-fault” divorce statute, the parties must attest that the marriage has been “irretrievably broken” for at least six months. However, this will not usually be much of a hurdle because most couples will have had issues for at least six months. In the past, New York required couples to live apart for a certain time in order to get a “no-fault” divorce, but that is no longer a requirement.

Tax Considerations

The IRS will look at your marital status on December 31 of the tax year to determine whether you are eligible to file as a married couple. Depending on your tax liability, it may make sense to wait until after the New Year to divorce. If you have children, you will also want to determine who will be able to claim them on taxes. You may want to take into account any upcoming changes in the tax code as well, and your attorney can advise you on their impact.

Child Custody and Child Support

In New York, child support is generally paid until a child is 21. If you have children who are nearing this age, you may want to wait to get divorced because that is one less thing to figure out. Similarly, if there are disagreements over custody, and a child is about to reach an age at which they will leave home, you may want to wait until that has happened. Essentially, if there are any big changes coming, you may decide to wait until they have resolved naturally, since the divorce will be easier if there are fewer complex issues that need to be addressed.

Health Insurance

Many married individuals have health insurance through their spouse. If this is the case for you, it is important to include this consideration in the timing of your divorce. You will want to make a plan for health insurance coverage if you will lose yours during the divorce. If you are employed and are eligible for health insurance through your employer, generally a divorce will be a “qualifying event” that will allow you to access health insurance without waiting for open enrollment. Your employer’s human resources department will be able to tell you the specifics regarding your eligibility. Depending on your income, you may also be eligible for Medicaid or Obamacare.

Filing First

When thinking about the timing of a divorce, many people will wonder whether they should file for divorce before their spouse. The specific answer and whether it matters will depend on your situation. However, filing first can be beneficial if your spouse and you live in different states or jurisdictions. States and jurisdictions have residency requirements that you will need to meet in order to file there. Beyond the convenience of the proceedings, divorce laws are governed by the state in which the divorce takes place. Thus, if you have a choice of different states, you will want to be thoughtful about which state you choose.

Seek Guidance from a Knowledgeable Divorce Attorney in New York City

It is important to remember that each situation is different, and you should consult a divorce lawyer to figure out what may be best for your specific circumstances. Whether your divorce is amicable or contentious, Ingrid Gherman can help you determine the right timing for you. She practices divorce law, family law, and matrimonial law, and she is also a Certified Divorce Mediator with the New York State Council on Divorce Mediation. Ingrid Gherman, P.C. is located in New York City and serves Manhattan, Brooklyn, Queens, the Bronx, and Staten Island, as well as Rockland, Orange, Westchester, Nassau, and Suffolk Counties. Contact us today for a consultation by calling 212-941-0767 or using the form on this website.