Regardless of your views of the subject, it is impossible to deny the existence of divorce in our society today. All divorces, whether amicable or contentious, completed or drawn out for years, follow a shared set of procedures in New York State contained within the "NY Civil Practice Laws and Rules" and "Domestic Relations Law".
In the end, all New York States divorces are considered complete with the filing of the Judgment of Divorce. While the execution of this document may not end all unresolved matters, the Judgment of Divorce (commonly referred to as “the Judgment”) is the court way of deeming the parties to be separate and apart (no longer married).
Getting to this point follows a generalized pattern under New York State Law. Variations to this general frame work exist, as each couple’s divorce is different from the next. However, the steps are largely the same. It may help you to think of any divorce in terms of a “timeline”, with each specific “event” occurring only after the prior step is completed.
Any divorce, separation, or annulment action is covered under the umbrella terms of a “Matrimonial Action”, that is, affecting the marital status of the parties involved. Whichever spouse “starts” the action is deemed the Plaintiff, much in the same way that whenever one person is “suing” another, the person to file the first papers is the Plaintiff as well. The other spouse, who did not file the papers, is the Defendant.
Currently, as of the date of this article, the current fee to start an action in New York State is TWO-HUNDRED TEN DOLLARS ($210.00). When an action is commenced an “Index Number” is assigned to the case for record-keeping purposes. Starting an action and “Purchasing the Index Number” are sometimes used interchangeably.
When commencing the action, the first papers are filed with the court. These documents become part of what is known as the Pleadings, and may consist of a Summons and Complaint or another document known as the Summons with Notice.
The Plaintiff will serve (deliver) a summons to the Defendant, and at that point (if the Defendant contests the divorce) the Defendant will usually retain (hire) an attorney. The Defendant's attorney will then forward a Notice of Appearance to the Plaintiff's attorney, indicating that he or she is the attorney representing the Defendant. If a complaint was not served with the Summons, the Defendant’s attorney will request one.
The Plaintiff, if they have not done so already, then provides the Defendant with a Complaint , which outlines the grounds for divorce alleged by the Plaintiff. The Defendant will then serve his/her Answer, which may contain Counterclaims, and denies or admits the allegations made in the Complaint.
After service of the Summons, the parties may need to appear in court for some kind of immediate or temporary relief. The relief requests may include a request for exclusive occupation of the parties’ home, payments for support, or an award of custody of any of the parties’ child. While these “Motions” may award only temporary relief, they are highly important to the outcome of the action. If the “Motion” made by either party is necessary for some financial matter, then the parties will need to disclose (show the court) relevant financial documentation, including pay stubs, bills, bank information and / or recent tax returns.
After initial papers are filed, the parties may choose to settle the action, if it is at all possible for them to agree to the distribution of assets, property, custody and support matters, and any other outstanding issues. If such a resolution is possible at any time, the parties will sign an agreement known as a Stipulation of Settlement or Separation Agreement, which will dictate the terms of the parties’ separation. The terms of the agreement may be incorporated with the terms of any divorce granted.
If no settlement of the action occurs, then the parties will then go through depositions or EBTs, which stands for Examinations Before Trial. During an EBT, is asked to give testimony regarding the marriage, including any alleged grounds for the divorce, and the financial affairs within the marriage. The Defendant’s attorney asks the Plaintiff questions, and the Plaintiff’s attorney asks the Defendant questions. EBTs are recorded through a stenographer, who is present to transcribe a written record of everything that is said by each person in attendance.
Through motions, EBTs, and production of documentation regarding the marriage, each parties’ attorneys determine the manner in which custody of children and the marital property may be awarded by the court. In NY, the marital property is divided pursuant through a process known as "Equitable Distribution", which divides the marital property based on a number of factors, including the parties’ current financial status, their health, and ability to be employed, among other items.
If during this process your action is not resolved through negotiations or settlement, then the action moves into pre-trial conferences / negotiations before the court and an assigned judge. If, once again, there is still no resolution to the parties’ disputes, then the case will proceed to a judicial trial, wherein a judge will make a decision regarding any outstanding issues. Even at this stage, there is still opportunity for the parties to agree upon a settlement, which is “read into the record” before the court. The judge will then sign off on the terms of this agreement, which will make the parties bound to the terms of the divorce. Of course the judge still retains the right to make any decisions regarding the divorce if no agreement is reached.
Unfortunately, while this description may offer a simplified outline of a contested divorce proceeding, it cannot predict the course of your own divorce action. While some divorce actions are resolved in a period of a few months, others are not resolved for several years. In general, the duration of any divorce action is dependent upon numerous factors, including the parties’ willingness to compromise, the financial assets of the parties, child custody, support and visitation issues, and the court’s ability to hear the action within a given timeframe.
Regardless of whether your divorce is uncontested, highly contested, or in need of just a relatively minimal amount of court intervention, we are able to provide you with guidance, knowledge, and the attention you deserve to have the best chance of obtaining a divorce with the minimal amount of stress and financial hardship.
Please be advised that this article is only an outline of a typical divorce action in New York State. It is not offered as legal advice and is only offered for informational purposes. The timeframe and filings necessary for your action may differ significantly given the circumstances of your situation. The author of this document explicitly recommends that any person seeking any separation or divorce consult with and retain the services of an attorney. The contents herein are provided by Rory Alarcon, Esq. www.longislanddivorceonline.com