Understanding the procedure in a New York divorce action.

 

A New York action for divorce starts with the Plaintiff (the person starting the action) purchasing an index number from the County Clerk’s Office for a filing fee of $210.00. The Plaintiff files a Summons with Notice, or a Summons with Verified Complaint. The Plaintiff at the time of filing receives a file stamped copy which will have the index number purchased on the face of the Summons with Notice or the Summons with Complaint. The next step in this process is to arrange personal service of the documents on the Defendant (the other spouse). If personal service is not possible for any reason such as the Defendant cannot be located or the Defendants whereabouts are unknown then the Plaintiff can make an application to the court for alternative service such as service by publication in a newspaper. Personal service needs to be made by someone who is at least 18 years old and not a party to the action which is why we send a licensed process server to provide us with an affidavit of service.

The Summons with Verified Complaint must be served on the Defendant within 120 days of the purchase of the index number unless an application for an extension of time to serve is granted by the court. Now, once the Summons with Verified Complaint has been served, the defendant will have 20 days to submit an Answer or 30 days depending on the nature of service. Once issue is joined, meaning the Defendant has served an Answer and filed a copy with the Court the Plaintiff will have 45 days to file a Request for Judicial Intervention (“RJI”) must be filed . The cost associated with the RJI is $95.00. The filing of the RJI will trigger the preliminary conference. The preliminary conference will generally be scheduled within 30 days after the filing of the RJI and no later than 45 days. A formal notice will be mailed to the parties and/or counsel notifying them of the upcoming court date.

Most of our New York divorce actions take place up these steps at the New York County Supreme Court at 60 Centre Street in Downtown Manhattan. 

Most of our New York divorce actions take place up these steps at the New York County Supreme Court at 60 Centre Street in Downtown Manhattan. 

 

The preliminary conference will provide the Judge an overview of the circumstances and general facts of the divorce action. The Judge will be able to meet the husband and wife face to face as well as the counsel and informally make an assessment of the present status of the case. The preliminary conference also provides the judge the opportunity to address immediate issues such as Temporary maintenance (spousal support), Temporary child support, Temporary child care, health insurance, etc…

For many divorce actions in New York City, the preliminary conference will be the only court appearance. This is because the preliminary conference details the timeline for the exchange of financial documents and other discovery. When the financial documents are exchanged, the Plaintiff and the Defendant are in better decision to ascertain the potential outcomes at trial and weigh the risks vs. rewards of continuing to litigate the matter.

Often times, the Plaintiff and the Defendant will not see a judge during the preliminary conference and will be dealing exclusively with the court attorney or clerk, there may be a brief encounter with the Judge to put something on the record. The Plaintiff and his or her attorney, as well as the Defendant and his or her attorney must be present at the preliminary conference and must sign a binding agreement entitled a preliminary conference order. Each judge has their own specific part rules that must be followed regarding check in in, adjournments, and preliminary conference guidelines.

Preliminary conference orders are governed pursuant to 22 N.Y.C.R.R. 202.16. At a minimum, the court will want to make sure that the plaintiff and defendant have submitted a sworn statement of net worth as of the date of the commencement of this action and a signed copy of each party’s attorneys retainer agreement.

The court will want the attorneys full contact information. The court will want the Plaintiff to provide the date the summons was filed and the date of the marriage. The court will want the Defendant to provide the date they were served and the date of the separation. The court will want to know the name and dates of birth of all children (if any) of the marriage.

The court will want to know if there is an order of protection in this case and if so from what court and whether it is a temporary or final order. The court will want copies of all active orders. The court will also want to know what other orders are outstanding between the parties and what the issues that were addressed in the orders. The court will want to know whether the plaintiff or the defendant is requesting a translator. The court will want to know whether there was any premarital (prenuptial), marital, or separation agreements that will be an issue in this case. That court will want to know the nature of each agreement and the date of the agreement.

WHAT ARE MY GROUNDS FOR DIVORCE?:

One of the preliminary issues in any divorce is the grounds. This is the legal reason under New York law for obtaining the divorce. The Court will want to know whether the issue of grounds are resolved and if so on what grounds. Generally, if the divorce is to proceed on an uncontested basis the parties will agree that irretrievable breakdown of the marriage for at least six months under DRL 170(7) will be the legal grounds. If the issue of grounds is unresolved, a trial on that issue will be held on a certain date and that a jury is or is not requested.

CUSTODY, PARENTING TIME & LAW GUARDIAN:

The court will want to know whether the issue of custody is resolved. The court will want to know whether the issue of parenting time is resolved. Parenting time is the phrase used to describe the non-custodial parents time to be spent with the children of the marriage. This is the same as visitation. The court will want to know whether the issue of decision making is resolved. If all of the issues relating to custody, parenting time, and decision making are resolved the parties will submit a stipulated parenting plan to the court by a date certain.
If any issue related to custody, parenting time and decision making is unresolved. Each party is to serve and submit a proposed paring plan by a date certain. After the court has received the proposed parenting plans, if the parties do not notify the court that all issues relating to custody are resolved then a conference will be scheduled for a date certain and which time the court shall determine the need for a law guardian/guardian ad litem and/or a forensic evaluation and set a schedule for resolving all issues relating to custody. If the court decides to appoint a law guardian/guardian ad litem or forensic evaluation shall be by separate order which shall designate the law guardian appointed, the manner of payment, source of funds for payment and each party’s responsibilities for such payment.

Judges generally go through the preliminary conference order and either mark items as resolved, unresolved, or reserved.

ALTERNATE DISPUTE RESOLUTION/MEDIATION:

The court will want to know whether the parties are aware of the existence of alternate dispute resolution methods of resolving their matrimonial action, including but not limiting to mediation and collaborative lawyering and if they are open to exploring these non-judicial methods of resolving divorces.

FINANCIAL DISCOVERY:

One of the key issues that is resolved at the preliminary conference is the timeline for exchanging financial documents and related information. This is what is referred to as discovery under the Civil Procedure Law & Rules, as well as the Domestic Relations Law. Prior to the preliminary conference both parties will have to prepare, sign under oath, and file a Statement of Net Worth. This is a comprehensive document that in theory provides the court and the opposing side with an overview of your income, expenses, debts, and assets. This document should be prepared by the client and reviewed by the matrimonial attorney. Clients should also provide two years of tax returns, W2’s, and recent pay stubs. When the Statement of Net Worth and accompanying documents are exchanged, the Judge will want to schedule a discovery schedule. This will allow either side to investigate further the information provided on Statement of Net Worth or on the W2’s or on the New York State or Federal Tax Return.

FINANCIAL ISSUES:

The court will want to understand the specific financial issues in this case, and what matters are yet to be resolved:Spousal support (maintenance), Child Support, Equitable Distribution, Attorneys Fees, Expert Fees

PRESERVATION OF EVIDENCE:
The court will order that each party maintain all financial records in his or her possession through the date of the entry of a judgment of divorce.

METHODS OF DISCOVERY IN DIVORCE CASES:

  • Interrogatories
  • Notice for discovery and inspection
  • Notice for examination before trial
  • Appraisals and experts

This is a general overview of the process of divorce, every case is different. To discuss your divorce with an attorney, Contact Law Offices of Mindin & Mindin, P.C. at 888-501-3292 or e-mail us by visiting our CONTACT page.