I Am a Business Owner Going Through a Divorce. How Will My Business Be Affected?
In Manhattan and Westchester, the rule of thumb when handling a divorce in which one spouse has their own business or business interest, is that the non-titled spouse has a claim to 15-35% of the increase in value of the business or business interest, during the marriage. The percentage is determined after analyzing what, if any, contributions were made toward the business by the non-titled spouse during the marriage. These contributions can be made by the non-titled spouse working at the business or raising the children while the titled spouse was afforded the ability to build his or her business.
Usually, a forensic valuation expert will be retained to determine the value of the business, and typically, the non-titled spouse will be entitled to only a financial interest in the business. The non-titled spouse will usually receive a credit to account for the value of their interest in the business.
Do I Need a Prenuptial Agreement?
Entering into a prenuptial agreement has historically been a good idea; today, it is all but necessary in many circumstances. Prenups allow you to learn a lot about your partner you might not otherwise know. For example, you can find out your partner’s views on various matters such as one spouse taking a step back in their career to care for children, whether each spouse wants to have joint accounts or keep assets separate, and what assets or debt your spouse is coming into the marriage holding.
Each party usually provides financial disclosure of their assets immediately before getting married. This sets a baseline from which increases in wealth during the marriage are measured. Saving statements from accounts as of the date of marriage is very helpful, since these records can be nearly impossible to obtain later.
It is always better to make decisions with a clear head and with competent counsel. A lawyer can guide you through negotiating a valid prenup that serves and addresses your interests while considering what is also permissible to be included in a prenup in New York.
Will I Get Spousal Support if I Divorce in Manhattan or Westchester?
Alimony or spousal support is now called Maintenance in New York. In 2010, new statutes were enacted, which provided for a guideline calculation in determining the amount of maintenance to be paid by the monied spouse, and guidelines were set for the duration of said maintenance payments. These new statutes shifted the purpose of maintenance from providing the status quo for the lesser-monied spouse to being rehabilitative for the lesser-monied spouse, allowing them to get back on their feet and become self-supporting. Not everyone is entitled to maintenance just because they earn less than their spouse. Courts in Manhattan and Westchester expect those who can work, will work to support themselves sooner rather than later.
Should I Use Mediation to Settle My Divorce in Manhattan or Westchester?
In most scenarios, mediation is not an appropriate way to resolve a divorce action. I always say, if spouses could sit across the table from one another and resolve all of their issues, they probably would not be getting divorced in the first place! If mediation is unavoidable, retain a Manhattan or Westchester litigator to consult with on the side. A mediator tries to create an agreement that the parties think is fair. The concept is that the mediator does not represent either party. It is wise to have someone who can guide you through the process, advise you of your rights, and ensure you are aware of what compromises you are making. Mediation is not always cheaper, either! Having a litigator draft your settlement agreement is often invaluable because litigators have seen what language and arrangements ultimately work best and survive challenges by spouses after the divorce is finalized. If you select the right attorney to represent you, your experience can feel much like a mediation; however, you will have someone there to represent only your interests.
About Jill Spielberg
Jill F. Spielberg is a Partner at Abrams Fensterman, LLP, and leads the Family and Matrimonial Law department at the firm’s White Plains office.
Ms. Spielberg has been recognized as one of the top 10 Family Law Attorneys under 40 by the National Academy of Family Law Attorneys and the American Institute of Family Law Attorneys. She has been named a Super Lawyer or Rising Star since 2016. Top 100 Lawyers Magazine has named her as one of the most influential attorneys in America in the field of Matrimonial Law.
Ms. Spielberg is also an active member of the Westchester County community, serving on the Scarsdale Forum, the Scarsdale Citizen’s Nominating Committee, as well as a Representative for Scarsdale C.H.I.L.D.
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