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Should Weddings Come with a Warning Label? – Part III – Mommy doesn’t always get custody of the children when you get divorced – That pension you worked so hard for isn’t all yours

In my last post I continued to lament that many people faced with a divorce would have benefitted from a bit of education on divorce laws even before they got married.  In this post I continue down the aisle….  more things people should know before they utter “I thee wed.”

  • If you have children and then get divorced, Mommy doesn’t always get custody of the children.
    New York’s custody laws have been gender neutral for many years.  However, there still exists the common misconception that the Mother always has an edge when custody becomes an issue in a divorce.  Things are changing however.  More and more Judges are approaching custody decisions with an open mind and a blank slate.  The factor that I have noticed Judges are really paying attention to in attempting to determine what is in the best interests of the child(ren) is, which parent is more likely to foster a positive relationship between the children and the other parent.  In other words, if one parent acknowledges the importance of the children maintaining a good solid relationship with both parents, and the other parent has only negative things to say about his or her spouse, the parent who appears to be willing to co-parent, however difficult, will get a leg up in a custody determination.  From a lawyer’s point of view, this can raise some serious tactical issues, when the “other parent” truly isn’t a good parent.  My point here, however, is that when a Mom comes to my office with two or three young children and starts to tell me how much time “he” will have with the children, I have to stop her and tell her to take a deep breath, because, she isn’t in charge and has no greater say in the process than the father.  This can be very difficult for some parents to accept, but the sooner they do, the better for all concerned.
  • The pension you worked so hard for over the years isn’t yours
    I am always amused when I have a consultation, usually with the husband, and I listen to a careful and articulate analysis of the marital property and debt accumulated during the marriage.  Often the client has copies of the bank statements, credit card bills and sometimes I even get a spreadsheet.  However, after listening, I raise the question of retirement accounts and pensions.  I am often met with a murderous look, followed by a comment which is either, “I’m not giving her/him any of it.  I worked for that, he/she didn’t.”  Or, “We talked about that and he/she agreed he/she wouldn’t take any of it.”  Both statements bode poorly for the future.  Retirement and pension assets are no different than any other property acquired during a marriage, and if the intent is that it not be shared in the event of a divorce, the only way to insure this outcome is by signing a pre or post-nuptial agreement.  It can be a really bitter pill to swallow for a client newly facing the economic realities of a divorce.

To be continued.…  Join me next time for more on tales of the uninformed.