Criminal Defense Lawyers

The intersection of criminal prosecution and divorce proceedings creates one of the most complicated legal situations anyone can face, but here’s what most people dont realize: you absolutely can pursue a divorce while criminal charges are pending, and understanding how these two legal processes interact is crucial to protecting yourself and your family.

In New York City thousands of people every year find themselves navigating this exact scenario. Criminal charges don’t pause your right to divorce, and divorce proceedings don’t stop criminal prosecutions. But the way these two cases intersect can have massive implications for custody, property division, support obligations and your constitutional rights. This guide breaks down everything you need to know about divorcing during criminal prosecution in NYC, with specific strategies to protect yourself in both proceedings.

Can You File for Divorce During a Criminal Prosecution?

The short answer is yes. New York law doesn’t require that criminal proceedings be resolved before you file for divorce, and pending criminal charges don’t create any legal barrier to dissolving your marriage. Whether you’re the one facing charges or you’re married to someone who is, either spouse can file for divorce at any time regardless of the criminal case status.

Under New York Domestic Relations Law § 170, there are several grounds for divorce including both “fault” and “no-fault” options. If your spouse has been convicted of a felony and imprisoned, that actually serves as specific grounds for divorce under the statute. But you don’t have to wait for a conviction – you can file based on irretrievable breakdown of the marriage (the no-fault option) even while criminal charges are still pending or under investigation.

One practical advantage when a spouse is incarcerated: service of process is actually easier because you know exactly where they are. The jail or prison facility can accept service on their behalf which eliminates the usual problems of trying to locate a spouse who’s avoiding papers. However, the incarcerated spouse still has full rights to participate in the divorce proceedings, file motions and contest issues like custody and property division.

The criminal case and divorce case will proceed on separate tracks through different court systems—criminal charges go through New York’s Criminal Court (for misdemeanors) or Supreme Court (for felonies), while divorce cases are handled in Supreme Court under its matrimonial jurisdiction. These cases dont legally depend on each other but practically they influence each other in significant ways.

Here’s what catches people off guard though. Even though the cases are technically separate, what happens in one case can dramatically affect the other. Bail conditions imposed in criminal court can effectively decide where you live and whether you see your kids before family court ever holds a custody hearing.

That’s because when a criminal judge orders “no contact” with your spouse or prohibits you from returning to the marital home as a condition of bail, you’ve just been separated from your children and excluded from your house—potentially for months before your divorce case even gets to a temporary orders hearing. By the time the family court judge considers custody there’s already a “status quo” established where the kids have been living primarily with one parent. Courts are really reluctant to disturb that status quo, even if the criminal charges are later dismissed or reduced. So temporary criminal court restrictions become permanent family law reality through simple procedural inertia.

How Criminal Charges Impact Child Custody and Visitation

If you’re facing criminal charges and going through a divorce your biggest fear is probably losing your children, and that fear isn’t unfounded. Criminal charges can absolutely impact custody determinations, but the effect varies dramatically depending on the type of charges, whether there’s been a conviction and how the alleged conduct relates to parenting ability.

New York courts decide custody based on “the best interests of the child” under Domestic Relations Law § 240. Judges consider many factors including each parent’s ability to provide a stable home, the child’s relationship with each parent, and any history of domestic violence or substance abuse. A criminal charge or conviction becomes one factor in this analysis but it’s not automatically disqualifying.

How Different Charges Affect Custody Differently

Not all criminal charges carry the same weight in custody decisions. Violent crimes especially those involving children or domestic partners raise serious red flags for judges. If you’re charged with assault against your spouse, child abuse or domestic violence, expect those charges to heavily influence custody – even before conviction.

Judges err on the side of protecting children, so merely being charged with violence against a family member can result in supervised visitation or temporary loss of custody pending the criminal case outcome.

Drug offenses fall into a gray area. Simple possession might not disqualify you from custody if you complete rehabilitation but drug trafficking or manufacturing charges suggest an unstable environment that courts won’t risk exposing children to. The key question judges ask: does this criminal activity create danger or instability for the children?

Non-violent crimes like fraud, embezzlement or white-collar offenses typically have less direct impact on custody. A parent facing tax evasion charges can still be an excellent parent. However these charges can indirectly affect custody through financial instability—if you’re facing restitution obligations or asset forfeiture, your ability to provide stable housing and financial support gets called into question.

Sex crimes and sex offender registration create the most severe custody restrictions. If you’re required to register as a sex offender you’ll face significant limitations on custody and visitation, potentially including prohibitions on overnight visits or requirements that another adult be present at all times. These restrictions often continue long after the criminal case concludes.

Conviction vs. Mere Charges

There’s a big difference between being charged with a crime and being convicted. Charges are allegations—they haven’t been proven beyond a reasonable doubt. However, family court operates under a different standard: preponderance of the evidence (more likely than not). This means a family court judge can consider alleged criminal conduct and make custody decisions based on it even if you’re ultimately acquitted in criminal court or the charges are dismissed.

That said a conviction carries much more weight. Once you’ve been convicted, there’s a judicial determination that you committed the crime and family court judges will give that finding significant deference. A conviction for a violent crime or crime against a child will almost certainly result in restricted custody, supervised visitation or in extreme cases, termination of parental rights.

Supervised Visitation and Temporary Orders

When criminal charges raise safety concerns but the court doesn’t want to completely terminate parental contact, supervised visitation becomes the compromise. In NYC, supervised visitation can occur at designated facilities with trained monitors or it might involve a trusted family member acting as supervisor. The parent usually bears the cost of professional supervision, which can run $50-$100+ per hour.

Temporary orders during the pendency of both cases are critical. If you’re facing charges, file a petition for temporary visitation immediately even if it’s just supervised access. Months without contact with your children creates a devastating gap that judges interpret as evidence you’re not invested in the children’s daily lives. Don’t let bail conditions or fear of the criminal case stop you from asserting your parental rights in family court.

Rehabilitation as Mitigation

If criminal charges involve substance abuse or anger management issues, proactively entering rehabilitation programs can significantly mitigate custody impacts. Courts want to see acknowledgment of problems and concrete steps toward change. Completing an inpatient treatment program, attending AA/NA meetings taking parenting classes, or participating in anger management counseling all demonstrate to the family court judge that you’re addressing the underlying issues.

Document everything—get letters from program directors, keep attendance records, obtain certifications of completion. This evidence can be the difference between supervised and unsupervised visitation.

The Custody Evaluator Trap

Here’s something most people don’t realize: court-appointed custody evaluators conduct extensive interviews, home visits and psychological assessments to make recommendations to the judge about custody arrangements. Parents are encouraged to be cooperative, transparent and forthcoming with evaluators. But there’s a huge problem when you’re also facing criminal charges.

Statements you make to custody evaluators are not protected by attorney-client privilege. Your custody evaluator’s report can be subpoenaed by prosecutors and used as evidence in your criminal case. If you tell the evaluator about past substance use, anger issues or questionable decisions trying to be honest for the custody evaluation, those admissions can become ammunition for the prosecution. Being a “good” divorce litigant makes you a vulnerable criminal defendant.

You need to coordinate carefully with both your criminal defense attorney and divorce attorney before speaking with any custody evaluator.

Property Division When Criminal Charges Are Involved

New York is an equitable distribution state which means marital property gets divided fairly (not necessarily equally) based on various factors. When criminal charges enter the picture, property division gets significantly more complicated—and potentially more unfair to the spouse facing charges.

Criminal Activity as “Fault” in Property Division

Even though New York allows no-fault divorce, judges still have discretion to consider conduct during the marriage when dividing property. If your criminal activity involved dissipation or waste of marital assets your spouse can argue for a larger share of what remains. For example if you embezzled money from your employer and that income was marital property, or if you spent marital funds on illegal activities, the court can “charge” that amount against your share of the property distribution.

Essentially, you might get less than 50% of the remaining assets because the court considers that you already wasted your share on criminal conduct.

A criminal conviction provides documented, court-adjudicated proof of misconduct that’s nearly impossible to refute in divorce court. The same criminal act gets “counted” twice—once in your criminal sentencing and again in property division that favors your spouse.

Legal Fees and Criminal Defense Costs

Criminal defense in NYC is expensive. A serious felony case can easily cost $50,000-$150,000+ in attorney fees. If those legal fees are paid from marital assets (joint bank accounts, retirement funds, home equity) it becomes a major issue in property division. Your spouse will argue that your criminal defense depleted marital assets and they should be compensated from your share.

Courts generally treat criminal defense fees as your separate obligation (not a marital debt), meaning you effectively pay twice—once for the lawyers then again in reduced property share.

Divorce attorney fees are treated differently. In New York courts can order the monied spouse to pay the other spouse’s divorce attorney fees to level the playing field. But if you’re the one facing criminal charges and your funds are frozen or depleted by criminal defense costs, you might not have resources to pay your own divorce lawyer let alone your spouse’s.

Asset Freezes and Criminal Forfeiture

This creates one of the most unfair situations in divorce during prosecution: when prosecutors seek asset forfeiture for property allegedly connected to criminal activity, those same assets might be marital property subject to division in divorce court. Both courts assert jurisdiction simultaneously and the result is often that the innocent spouse loses their share entirely.

For example imagine the marital home was purchased partially with funds prosecutors claim came from illegal activity. The family court might award you 50% of the home’s equity in the divorce, but the criminal court seizes 100% of the home through civil asset forfeiture. You “won” your property division but you still lose everything because the criminal forfeiture takes priority. There’s no compensation from either proceeding for your lost marital property share.

Asset freezes create immediate practical problems too. If prosecutors freeze bank accounts pending the criminal case you can’t access those funds for living expenses, legal fees, or anything else—even though they’re marital property. You need to file immediate motions in both courts: in criminal court to release funds for necessary expenses, and in family court to address support obligations while assets are frozen.

Bail Money and Property Distribution

If bail is posted using marital funds or marital property that becomes an issue in property division. Who gets credit for the bail money? If cash bail is returned after the criminal case concludes is that marital property to be divided, or does it go back to whoever posted it? Courts have split on this, with some treating returned bail as marital property and others as separate property of the person who faced charges. Don’t assume you’ll get credit—document the source of bail funds meticulously.

Spousal Support (Alimony) Complications

Spousal support in New York is called “maintenance,” and it’s calculated based on income, length of marriage and various equitable factors. Criminal prosecution throws several wrenches into these calculations.

Income During Incarceration

If you’re incarcerated your income drops to essentially zero (prison jobs pay pennies per hour). But here’s the harsh reality: spousal support and child support obligations continue accruing during incarceration at the same rate they were set before imprisonment. Courts generally do not treat incarceration as grounds for automatic modification of support obligations.

The legal reasoning is that incarceration is a “voluntary” condition—you chose to commit the crime that led to imprisonment so you’re responsible for the financial consequences. This means that if you’re serving a 5-year sentence you could come out of prison with $100,000+ in child support arrears, plus accumulated interest.

Upon release you immediately face contempt proceedings for non-payment, which can send you back to jail before you even establish employment. It’s a debt trap that’s nearly impossible to escape.

You can file for a modification of support based on changed circumstances, but you need to do it quickly—preferably before you’re even sentenced. Don’t wait until you’re already incarcerated and have months of arrears. File a modification petition showing that your income will drop to zero during incarceration. Some judges will reduce support obligations for the period of incarceration; others won’t. But if you don’t file the petition you have zero chance of modification, and arrears will pile up automatically.

Earning Capacity with a Criminal Record

Here’s another unfair aspect: when courts calculate spousal support they often consider “earning capacity”—what you could earn, not just what you currently earn. If you had a professional license or high-earning career before your criminal conviction, the court might impute income based on that pre-conviction earning potential.

But criminal convictions create massive barriers to employment. Professional licenses (law, medicine, accounting, real estate) can be suspended or revoked due to felony convictions. Many employers won’t hire people with criminal records. Entire industries are closed off.

Yet the family court may still order you to pay support based on income you’ll never be able to earn again due to your criminal record. You’re stuck with an obligation calculated on $100,000/year earning capacity when your actual post-conviction earning potential is $30,000/year. This creates perpetual contempt liability and enforcement actions that follow you for decades.

Criminal Restitution vs. Support Obligations

If your criminal sentence includes restitution (repaying victims), that’s a court-ordered obligation that competes with child support and spousal support. You have limited income and multiple court orders demanding payment. Which takes priority?

Generally child support takes priority over most other obligations, but restitution obligations don’t simply disappear. You’re expected to pay both even when that’s mathematically impossible given your income. This leads to cascading contempt findings in family court and probation violations in criminal court.

The Fifth Amendment Problem in Divorce Court

This is one of the most complex and least understood issues when facing simultaneous criminal and divorce proceedings: your Fifth Amendment right against self-incrimination exists in both cases, but invoking it has dramatically different consequences.

Fifth Amendment Basics

The Fifth Amendment to the U.S. Constitution protects you from being compelled to testify against yourself in a criminal case. If you’re facing criminal charges you have an absolute right to refuse to answer questions that might incriminate you. In criminal court, invoking the Fifth Amendment cannot be held against you—the jury isn’t even told about it and prosecutors can’t comment on your silence.

But divorce proceedings aren’t criminal proceedings. They’re civil cases, and the rules are completely different.

Adverse Inference in Family Court

In civil and family court cases if you invoke your Fifth Amendment right and refuse to answer questions, the judge can draw an “adverse inference” against you. This means the judge can assume that the answer you refused to give would have been unfavorable to you and rule accordingly.

For example, imagine you’re asked in a divorce deposition: “Did you take $50,000 from the joint bank account to pay for illegal drugs?” If you invoke the Fifth Amendment and refuse to answer (to protect yourself in your pending drug trafficking case) the family court judge can infer that yes, you did take $50,000 and spend it on drugs. That money gets charged against your property distribution share even though you never actually admitted to anything.

Or in a custody context: “Have you ever struck your spouse?” Invoking the Fifth to protect yourself in your pending assault case can lead the family court to assume yes, you have committed domestic violence and restrict your custody accordingly.

This creates an impossible paradox: protecting yourself constitutionally in the criminal case devastates your divorce outcome but answering questions honestly in the divorce case hands ammunition to prosecutors.

Strategic Coordination is Essential

There’s no one-size-fits-all answer to when you should invoke the Fifth in divorce proceedings. It requires careful strategic coordination between your criminal defense attorney and divorce attorney. Some factors to consider:

When invoking the Fifth might make sense: If the criminal case is going to trial soon and testimony in the divorce case would provide prosecutors with roadmap for cross-examination or reveal defense strategy. If the stakes in the criminal case (prison time) vastly outweigh the stakes in the divorce case (property division). If the question directly relates to the charged criminal conduct.

When answering might make sense: If the criminal case is likely to result in a plea bargain regardless, so there won’t be a trial where your testimony could be used. If the question doesn’t directly relate to criminal charges (for example questions about marital finances unrelated to the alleged crime). If the family court consequences of invoking the Fifth (losing custody) are worse than the criminal risk of answering.

Some attorneys use a “selective invocation” strategy where you answer questions about some topics but invoke the Fifth on others. But this can backfire—courts may view selective invocation as manipulative and draw even stronger adverse inferences.

Timing of Depositions and Discovery

When your divorce deposition is scheduled matters enormously if you’re facing criminal charges. If possible delay divorce discovery until after the criminal case is resolved (through plea, trial or dismissal). Once the criminal jeopardy is gone you can answer questions freely without Fifth Amendment concerns.

Your criminal defense attorney can sometimes negotiate with prosecutors for faster resolution of the criminal case to eliminate this conflict.

If you can’t delay the divorce proceedings, consider seeking a protective order limiting the scope of discovery to topics that don’t implicate the criminal charges or requesting that certain depositions be sealed to prevent prosecutors from accessing them (though this is difficult to obtain).

Evidence Sharing Between Criminal and Divorce Cases

Many people assume their divorce proceedings are private and separate from criminal prosecution. That assumption is dangerously wrong. Evidence obtained in divorce discovery can be shared with prosecutors and vice versa, creating strategic landmines that can blow up both cases.

How Divorce Discovery Feeds Criminal Prosecution

In divorce proceedings you’re required to produce extensive financial documentation: tax returns, bank statements, credit card records, business documents, retirement account statements. If you’re facing charges related to financial crimes (fraud, tax evasion, money laundering) these divorce-mandated disclosures can hand prosecutors evidence they couldn’t easily obtain through criminal subpoenas.

For example if you’re charged with tax fraud and you produce three years of tax returns in divorce discovery showing unreported income, the prosecutor can subpoena those documents from your spouse’s divorce attorney. What you were forced to disclose in the divorce becomes evidence in the criminal case.

Text messages and emails are another crossover danger. Spouses routinely exchange communications about finances, children, household matters. If those communications include admissions about illegal activity, substance use or anything else relevant to criminal charges, they’re discoverable in both the divorce and criminal cases. That angry text where you admitted to using cocaine to blow off steam? Admissible in both cases.

Financial Records and the Paper Trail

Divorce attorneys often hire forensic accountants to trace marital assets, uncover hidden accounts and identify dissipation of funds. These forensic investigations can uncover evidence of criminal conduct—unreported income, fraudulent transfers, money laundering patterns. Once that evidence exists in the divorce case file prosecutors can access it through subpoenas or voluntary cooperation from your spouse.

You might think: “My spouse won’t cooperate with prosecutors against me.” Don’t count on it. In a contentious divorce your spouse’s interests align with the prosecution—both want to prove you’re unfit, untrustworthy and have engaged in misconduct. Your spouse’s divorce attorney may proactively share evidence with prosecutors especially if it strengthens their custody or property division case.

Social Media and Digital Evidence

Social media posts are fair game in both divorce and criminal proceedings. That Instagram photo of you partying while claiming you’re too disabled to work? Useful in both cases. Facebook posts about drug use, weapons or threatening language? Admissible in both proceedings. Screenshots of dating app profiles while you’re claiming reconciliation isn’t possible? Relevant to both divorce and criminal cases involving adultery or domestic disputes.

Private investigators hired by divorce attorneys also create discoverable evidence. If a PI follows you, photographs you and documents your activities for the divorce case, that evidence can be subpoenaed for the criminal case too. Don’t assume anything your spouse’s legal team discovers stays within the divorce proceedings.

Attorney-Client Privilege Limitations

Here’s a critical point: attorney-client privilege protects communications between you and your criminal defense attorney, and separately protects communications between you and your divorce attorney. But privilege doesn’t automatically extend between your two attorneys.

If you tell your criminal defense lawyer something confidential and your criminal lawyer tells your divorce lawyer, that second communication might not be protected. Prosecutors could potentially subpoena your divorce attorney to testify about what your criminal defense attorney told them (though not what you told either attorney directly).

To solve this attorneys can use a “Kovel agreement” or joint defense privilege structure that extends privilege across your legal team. But this must be set up explicitly—it doesn’t happen automatically just because you have two lawyers working on related cases. Make sure your attorneys establish this privilege protection in writing before they start sharing information.

Managing Two Legal Teams and Two Court Systems

Facing simultaneous criminal prosecution and divorce means you need two separate attorneys and need to navigate two completely different court systems. This creates logistical, financial and strategic challenges that most people aren’t prepared for.

Why You Need Separate Attorneys

Criminal defense and family law are different specialties requiring different expertise. Criminal defense attorneys understand constitutional rights, evidence rules for criminal cases, plea negotiations and sentencing. Family law attorneys understand custody law, property distribution, support calculations and family court procedures. Very few attorneys are genuinely expert in both areas.

More importantly there are potential conflicts of interest if one attorney tries to handle both cases. The best strategy for your criminal case might hurt your divorce case and vice versa. An attorney handling both cases faces conflicting duties and can’t fully advocate for your interests in both forums simultaneously. You need separate counsel who can each focus on their specific case while coordinating strategy.

Can the Same Firm Handle Both?

Sometimes a law firm has both criminal defense and family law departments. Can they handle both your cases? Maybe but be careful. If the firm represents you in both matters, information sharing is easier but the firm still faces potential conflicts between the two cases. Some firms will refuse dual representation for this reason. Others will have different attorneys in different departments handle the cases with ethical walls between them.

More commonly you’ll have completely separate attorneys from different firms. This is usually better for avoiding conflicts but requires more active coordination on your part.

Communication and Coordination Strategy

Your two attorneys need to communicate with each other about case strategy but you need to control and facilitate that communication. Don’t assume they’ll coordinate automatically. Set up a three-way call or meeting early in both cases to establish:

• What information can be shared between them (establish joint defense privilege)
• How they’ll handle scheduling conflicts when you have court appearances in both cases
• Who takes the lead on which issues (custody evaluator coordination for example)
• How they’ll coordinate on timing of plea bargains vs. divorce settlement
• What your priorities are across both cases

Have them communicate in writing (email) so there’s a record, but ensure the privilege protection is in place first. You should be copied on communications between your attorneys so you know what each team knows.

The Cost Reality

Dual representation is expensive. Criminal defense attorneys in NYC charge anywhere from $350-$1,000+ per hour depending on experience and the severity of charges. A felony case going to trial can easily cost $75,000-$200,000 in legal fees. Divorce attorneys in NYC charge $300-$750+ per hour and a contested divorce with custody disputes can run $50,000-$100,000+.

You could be looking at $150,000-$300,000 in combined legal fees. That’s often more than the marital assets even available to fight over. This creates agonizing choices about where to allocate limited resources.

Paying Attorneys from Marital Assets

Can you use marital funds to pay your criminal defense attorney? Generally yes—you can spend marital funds on necessary expenses before property division. But your spouse will claim you’re dissipating assets and the court may charge those fees against your share in the final distribution. Keep meticulous records of what you spend on legal fees and from which accounts.

For divorce attorney fees New York courts can order the monied spouse to pay the other spouse’s attorney fees. But if you’re the one facing criminal charges and your assets are frozen or depleted, you might qualify to have your spouse pay your divorce fees—a rare silver lining.

Strategic Timing: When to File, When to Settle, When to Plea

The timing of decisions across your criminal and divorce cases can determine outcomes as much as the underlying facts. When you file for divorce, when you accept a plea bargain and when you settle divorce issues all create leverage points and strategic implications.

Filing Divorce Before vs. After Criminal Charges

If criminal charges haven’t been filed yet but you know you’re under investigation should you file for divorce immediately or wait? There are arguments both ways.

Advantages of filing early: Get temporary orders in place for custody and support before criminal restrictions complicate things. Establish your position as the filing spouse with initial control over framing issues. Potentially preserve some spousal testimony privilege depending on timing.

Disadvantages of filing early: Tips off your spouse that trouble is coming, potentially prompting them to hide assets or prepare for contentious litigation. May create adverse inferences if you’re filing right before criminal charges—looks like you knew charges were coming. Eliminates spousal testimony privilege for communications after filing.

If criminal charges have already been filed there’s less timing strategy around filing for divorce—the cat’s out of the bag. But you still need to decide whether to file immediately or wait for the criminal case to develop.

The Plea Bargain Timing Dilemma

This is where timing becomes critically important: accepting a plea bargain in your criminal case creates a conviction that can be used against you in divorce proceedings. That conviction becomes documented evidence of criminal conduct that affects custody, property division and support. But delaying a good plea offer to maintain divorce negotiation leverage risks the plea offer expiring and facing harsher criminal consequences.

Here’s the strategic calculation: if you’re offered a favorable plea bargain that avoids jail time do you accept it immediately even though it weakens your divorce position? Or do you try to settle the divorce first (while you don’t have a conviction on your record) knowing the plea offer might disappear?

There’s no universal right answer but consider these factors:

Accept the plea first if: The plea offer is unusually favorable and unlikely to remain available. The criminal consequences of going to trial are severe (significant prison time). The conviction from the plea won’t significantly change divorce outcomes anyway (for example the custody battle is already lost due to the charges themselves). You need certainty in the criminal case more than leverage in the divorce.

Try to settle divorce first if: The plea offer is likely to remain available for several months. You have strong bargaining position in the divorce currently that will evaporate with a conviction. The difference in divorce outcomes between charged vs. convicted is substantial (significant property division or custody at stake). Your criminal attorney believes they can renegotiate a similar plea later.

Coordinate this timing carefully with both attorneys. Sometimes your criminal defense attorney can ask prosecutors for more time to “handle personal affairs” before entering a plea, giving you a window to try to settle the divorce. Sometimes your divorce attorney can expedite settlement negotiations emphasizing that you need resolution before the criminal plea deadline.

How Allocution Can Haunt You

When you plead guilty as part of a plea bargain you typically have to give an “allocution”—a statement to the court admitting what you did. This allocution becomes a public record and can be used in your divorce case. If you allocute to striking your spouse as part of an assault plea, that admission will be used in custody proceedings. Be very careful about what you admit to in allocution and coordinate with your divorce attorney about the specific language.

Settling Divorce While Criminal Charges Pending

Some people prefer to get the divorce settled while the criminal case is still pending (charges filed but no conviction yet). The advantage is you avoid the impact of a conviction on negotiations. The disadvantage is significant uncertainty—neither party knows whether you’ll be convicted, sentenced to prison or have charges dismissed. That uncertainty makes it hard to negotiate support obligations, custody schedules and property division.

You might settle for supervised visitation now, but if the charges are later dismissed you’ve given up custody rights unnecessarily. Or you might negotiate property division based on current financial status but if you’re later convicted and sentenced to 10 years in prison, those terms no longer make sense.

Some divorce settlements include contingency provisions: “If party is convicted, custody reverts to sole custody for other parent” or “If party is incarcerated more than 1 year support obligations are modified.” But courts don’t always enforce these contingent provisions.

Protective Orders and Marital Home Access

If there’s a protective order or order of protection in the criminal case prohibiting contact with your spouse this affects when and how you can negotiate divorce settlement. You can’t sit down for a four-way settlement conference with your spouse if you’re prohibited from being in the same room. All negotiations have to occur through attorneys which is slower and more expensive.

Sometimes courts will modify protective orders to allow contact for purposes of divorce mediation with attorneys present, but you need to specifically request this modification.

Practical Steps to Protect Yourself

If you’re facing divorce during criminal prosecution here are concrete actions you should take immediately to protect yourself in both proceedings:

1. Secure separate criminal defense and divorce attorneys immediately. Don’t try to handle either case pro se and don’t use a general practice attorney who “does a little of both.” You need specialists. Interview attorneys with specific experience in dual criminal-divorce cases.
2. Do not discuss your criminal case with your spouse—at all. Even if you’re still living together or on good terms, anything you say can be used against you in both cases. Spousal testimony privilege is limited and can be lost once divorce proceedings start. Communicate only through attorneys.
3. Document all marital assets immediately before freezes or seizures. Make copies of bank statements, retirement account statements, property deeds, vehicle titles, business valuations and any other asset documentation. If prosecutors freeze accounts or seize property you need to be able to prove what existed before the freeze for property division purposes.
4. File a modification petition immediately if you’re incarcerated. Don’t wait for support arrears to pile up. File a petition to modify support based on changed circumstances the moment you know you’ll be incarcerated. Some judges will grant modification retroactive to the filing date but none will reduce arrears that accrued before you filed.
5. Understand how bail conditions affect custody and act accordingly. If criminal court bail conditions keep you out of the marital home or away from your children, file immediately in family court for visitation orders. Don’t let months pass without custody contact—it creates a status quo that’s hard to reverse.
6. Request supervised visitation if there are legitimate safety concerns. If your spouse’s criminal charges involve violence or substance abuse and you’re concerned about child safety request supervised visitation immediately. Don’t wait for something to happen. The court will likely grant supervised visits pending the criminal case outcome.
7. Gather evidence of rehabilitation efforts. If criminal charges involve substance abuse, mental health issues or anger management problems, immediately enroll in treatment programs and document your participation. Keep certificates, attendance records, progress reports and letters from counselors. This evidence can mitigate custody impacts.
8. Protect all digital communications. Assume anything you text, email, post on social media or communicate digitally can and will be discovered in both cases. Don’t vent about your spouse to friends via text. Don’t post photos that contradict your claims in either case. Don’t use email for anything you wouldn’t want read in court.
9. Review and lock down social media privacy settings. Make all accounts private. Unfriend your spouse and their family members. Don’t accept friend requests from people you don’t know (they could be investigators). Better yet, stop posting entirely until both cases are resolved.
10. Establish attorney coordination protocols in writing. Have your criminal defense attorney and divorce attorney sign a joint defense/common interest agreement establishing privilege for their communications. Then set up a specific protocol: who they contact for what issues how often they update each other, and how they coordinate strategy. Put you in the communication loop so you know what each attorney knows.

Long-Term Considerations and Post-Conviction Modifications

Even after your criminal case and divorce are resolved the intersection between the two areas of law continues to affect your life. Understanding your rights to modify custody, support and other terms is important for long-term planning.

Modifying Custody After Conviction is Overturned

If you accepted restricted custody or supervised visitation because of criminal charges and those charges are later dismissed or your conviction is overturned on appeal, you can petition to modify the custody order. The changed circumstance (no conviction) is grounds for modification. However courts will also consider how much time has passed and what custody arrangement the children have adjusted to.

If your conviction is overturned after 6 months modification back to shared custody is realistic. If it’s overturned after 5 years, the children have now spent years primarily with one parent and courts will be reluctant to disrupt that established routine even though you’re no longer convicted. Time matters—pursue appeals quickly if there are custody implications.

Support Modifications After Incarceration Ends

When you’re released from incarceration you can file to modify support obligations based on your current income. However courts will impute earning capacity based on your education, work history and skills. If you’re not making reasonable efforts to find employment the court won’t reduce support just because you’re choosing not to work.

Here’s the unfair part though: courts often impute income based on pre-conviction earning capacity without adequately accounting for the employment barriers created by your criminal record. If you were a licensed attorney earning $150,000/year before your conviction but you’ve now been disbarred and work retail for $35,000/year, the court might still impute $100,000+ in earning capacity and set support accordingly.

You’re stuck proving that you genuinely cannot earn at your previous level despite good faith efforts.

Sealed or Expunged Records

If your criminal record is sealed or expunged can you prevent it from being considered in custody modification proceedings? It depends. If the record is sealed under New York’s sealing statute you’re generally not required to disclose it in civil proceedings. However if there’s already a custody order based on the criminal conduct and you’re seeking modification, the court will remember the underlying facts even if the conviction is sealed. Sealing helps with new proceedings more than with modifying existing orders based on the same conduct.

Sex Offender Registration and Ongoing Custody Restrictions

If you’re required to register as a sex offender those registration requirements typically continue even after you complete your criminal sentence and they create ongoing custody restrictions. You may be prohibited from living with minor children, having unsupervised contact or being present at schools or playgrounds. These restrictions are statutory and not easily modified through family court even if your underlying conviction is old or your offense didn’t involve children.

Some states allow termination of sex offender registration after a certain period of compliance which can then allow for custody modification. But this is a lengthy process requiring demonstration of rehabilitation and poses no current risk.

Professional License Restoration and Support Modifications

Many professional licenses are suspended or revoked due to felony convictions. If you later get your license restored (through expungement, certificate of relief from disabilities or board reinstatement) your earning capacity increases substantially. Your ex-spouse can then file to modify support upward based on your restored earning capacity. Essentially your success in overcoming the consequences of your conviction becomes grounds to increase your support obligations.

NYC-Specific Resources and Court Information

If you’re dealing with divorce during criminal prosecution in New York City here are specific resources and court information for each borough:

NYC Family Court Locations

Manhattan Family Court
60 Lafayette Street, New York, NY 10013
(646) 386-5200

Brooklyn Family Court
330 Jay Street, Brooklyn, NY 11201
(718) 643-5300

Queens Family Court
151-20 Jamaica Avenue, Jamaica, NY 11432
(718) 298-0197

Bronx Family Court
900 Sheridan Avenue, Bronx, NY 10451
(718) 590-3506

Staten Island Family Court
100 Richmond Terrace, Staten Island, NY 10301
(718) 675-8800

NYC Criminal Courts

Misdemeanor charges are handled in Criminal Court; felony charges are handled in Supreme Court (Criminal Term). Each borough has its own criminal court.

Manhattan Criminal Court
100 Centre Street, New York, NY 10013

Brooklyn Criminal Court
120 Schermerhorn Street, Brooklyn, NY 11201

Queens Criminal Court
125-01 Queens Boulevard, Kew Gardens, NY 11415

Bronx Criminal Court
215 East 161st Street, Bronx, NY 10451

Staten Island Criminal Court
67 Targee Street, Staten Island, NY 10304

Legal Aid and Low-Cost Representation

If you can’t afford private attorneys for both cases these organizations provide free or sliding-scale legal services:

The Legal Aid Society – Provides both criminal defense and family law representation for low-income New Yorkers. Main office: 199 Water Street, New York, NY 10038. (212) 577-3300.

New York County Lawyers Association Referral Service – Can connect you with attorneys in both practice areas. (212) 267-6646.

Her Justice – Provides free legal services to women in family law matters including divorces complicated by criminal charges. (212) 695-3800.

Brooklyn Defender Services – Holistic criminal defense including family law support. (718) 254-0700.

Supervised Visitation Programs

Safe Horizon Supervised Visitation Program – Multiple locations throughout NYC. Provides supervised and monitored visitation services. (718) 943-9050.

Edwin Gould Services for Children – Parenting Resource Center – Offers supervised visitation in Manhattan. (212) 535-5106.

Child Support Enforcement

NYC Office of Child Support Services – Handles child support establishment and modification. Each borough has a location; call 311 for nearest office.

Reentry Programs

If you’re being released from incarceration and need help with employment, housing and family reunification:

The Fortune Society – Comprehensive reentry services including job training, housing assistance and family counseling. (212) 691-7554.

Center for Employment Opportunities (CEO) – Immediate employment opportunities for people recently released from incarceration. (212) 422-4430.

Frequently Asked Questions

Can pending criminal charges delay my divorce in New York?

No. Criminal charges don’t create a legal basis to delay divorce proceedings. Both cases proceed on separate tracks through different court systems. However as a practical matter, having two active cases simultaneously may slow things down because you and your attorneys are juggling multiple court appearances, discovery demands and strategic decisions across both cases. Some people choose to delay finalizing the divorce until the criminal case resolves to avoid uncertainty in settlement negotiations, but that’s a strategic choice not a legal requirement.

Will my spouse’s criminal record affect who gets the house?

It can but indirectly. Criminal records don’t automatically disqualify someone from receiving property in a divorce. However if the criminal activity involved dissipating or wasting marital assets (for example embezzling money, spending marital funds on illegal activities) the court can consider that waste when dividing property and award the other spouse a larger share. Also if marital funds were spent on criminal defense fees or bail, that depletes the assets available to divide. And if property is subject to criminal forfeiture it might not be available for distribution at all.

Can I get sole custody if my spouse is facing criminal charges?

Possibly, depending on the nature of the charges. If your spouse is facing charges for violent crimes, crimes against children, domestic violence or serious drug offenses you have a strong argument for sole custody at least temporarily while the charges are pending. Courts prioritize child safety and stability. However if the charges are non-violent and don’t relate to parenting ability (for example white collar crimes) they may not affect custody as significantly. You’ll need to demonstrate how the criminal charges impact your spouse’s ability to parent and how sole custody serves the children’s best interests.

Do I have to testify against my spouse in their criminal case if we’re divorcing?

It’s complicated. There are two types of spousal privilege: marital communications privilege (protecting confidential communications between spouses during marriage) and spousal testimony privilege (protecting one spouse from being forced to testify against the other). These privileges vary by jurisdiction and can be limited or lost once divorce proceedings begin. In New York the marital communications privilege survives divorce for communications that occurred during the marriage, but the spousal testimony privilege may not apply once you’ve filed for divorce. You should consult with an attorney about your specific situation. Even if you’re legally required to testify you can still invoke your Fifth Amendment right against self-incrimination for questions that might incriminate you.

Can child support be reduced if I’m incarcerated?

It can be but it’s not automatic and many courts are reluctant to reduce support based on incarceration. The legal reasoning is that incarceration is a voluntary choice—you committed a crime that led to imprisonment—so you’re responsible for the consequences. However if you file a petition to modify support based on changed circumstances showing that your income has dropped to zero or near-zero during incarceration, some judges will grant a reduction for the period of incarceration. You must file this petition quickly ideally before you’re incarcerated, because courts generally don’t reduce support retroactively for periods before you filed. If you don’t file support arrears will continue accumulating at the original amount throughout your sentence.

What happens to our assets if they’re seized in the criminal case?

This is one of the most unfair aspects of divorce during criminal prosecution. If prosecutors seize assets through criminal forfeiture claiming they’re connected to illegal activity, those assets are typically removed from the marital estate available for division in divorce court. Even if the family court awarded you 50% of those assets in the divorce the criminal forfeiture takes priority. You lose your share entirely with no compensation. In some cases innocent spouses can file claims in the forfeiture proceeding arguing they had an ownership interest in the property and weren’t involved in the illegal activity but these claims are difficult to win. The best protection is to act quickly when you learn assets might be subject to forfeiture—consult with attorneys in both cases about how to protect your marital property rights.

Can my divorce attorney represent me in my criminal case too?

Technically yes if they’re licensed to practice criminal law, but it’s almost never a good idea. Criminal defense and family law are highly specialized areas requiring different expertise and skills. More importantly there are strategic conflicts between the two cases—what’s best for your criminal defense might hurt your divorce case and vice versa. An attorney representing you in both cases faces conflicting duties and can’t give you the best representation in either. You’re much better off with separate attorneys who can each focus on their area while coordinating strategy. In some cases a law firm with both criminal and family law departments might represent you in both matters but even then they typically use different attorneys with ethical walls between them.

Should I wait for the criminal case to finish before filing for divorce?

There’s no universal right answer—it depends on your specific circumstances. Arguments for waiting: You avoid uncertainty in divorce negotiations about whether there will be a conviction, what the sentence will be and how it affects finances and custody. If the charges are dismissed you’ll have avoided the stigma of divorcing while under indictment. Arguments for filing now: You can get temporary orders in place for custody and support before criminal restrictions complicate access to children and assets. You establish control over the divorce narrative. You avoid continued financial and emotional entanglement with a spouse facing criminal consequences. Consult with both a criminal defense attorney and divorce attorney about the strategic implications in your situation before deciding.

How do protective orders affect divorce proceedings?

Protective orders or orders of protection issued in criminal cases can significantly complicate divorce proceedings. If there’s a no-contact order prohibiting you from contacting your spouse you can’t participate in typical divorce activities like four-way settlement conferences, mediation sessions where both parties are present or direct negotiations. All communication and negotiation has to occur through attorneys which is slower and more expensive. Protective orders can also affect your access to the marital home and shared property. Sometimes courts will modify protective orders to allow contact for limited purposes (like divorce mediation or child exchanges) with specific conditions (attorneys present, neutral location). You need to request these modifications specifically from the criminal court that issued the protective order.

Can I modify custody after my spouse is convicted?

Yes, a criminal conviction is definitely grounds to file a petition to modify custody. The conviction represents a significant change in circumstances that can affect the best interests of the children. If your spouse receives a lengthy prison sentence they obviously can’t exercise physical custody. Even if they receive probation or a short sentence the nature of the crime (especially violent crimes, crimes against children or sex offenses) can justify modifying custody to give you sole custody or restricting their visitation to supervised only. You’ll need to demonstrate how the conviction affects their ability to parent and how the modification serves the children’s best interests. Keep in mind that courts will also consider rehabilitation efforts—if your spouse completes treatment programs, maintains stability and shows genuine change they may eventually be able to modify back to more expansive parenting time.

Conclusion

Divorce during criminal prosecution represents one of the most challenging legal situations anyone can face. You’re simultaneously fighting for your freedom, your children, your assets and your future across two different court systems with different rules and different stakes. The intersection of these cases creates constitutional dilemmas, strategic conflicts and practical nightmares that most people never anticipated.

But understanding how these two legal processes interact—that’s half the battle. Criminal charges don’t prevent you from divorcing. Divorce proceedings dont stop criminal prosecutions. Both cases can move forward simultaneously and with proper legal guidance and strategic coordination you can protect your interests in both forums.

Key takeaways: get separate specialized attorneys for each case immediately. Don’t discuss your criminal case with your spouse. Document all assets before they’re frozen or seized. File modification petitions quickly if your circumstances change. Coordinate strategy carefully between your legal teams especially around timing of pleas and settlements. Protect yourself from discovery sharing by being extremely careful about what you say and produce in either case. Understand that invoking the Fifth Amendment in divorce court has different consequences than in criminal court.

Above all don’t try to handle this alone. Whether you’re the spouse facing charges or the spouse seeking divorce from someone facing prosecution, your decisions in the next few weeks and months will affect your life for years or decades to come.

If you’re facing divorce during criminal prosecution in New York City contact criminal defense attorneys and divorce attorneys experienced in these dual proceedings. The initial consultation will help you understand your rights, options and can literally save you from years of legal consequences.