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Procedure for Divorce (NY Specific)

A divorce is commenced by filing either a Summons with Notice, or a Summons and Complaint in the county clerk's office. The filing fee is $185.00, at which time an index number is assigned to the case. The spouse filing the divorce is the plaintiff, and the non filing spouse is the defendant. The defendant must be personally served with the divorce papers, unless the court grants some other means of service. Note that there are special requirements for service of process in a divorce action.  See CPLR 308 and DRL 232. 

THE PLEADINGS

The purpose of the pleadings is to give sufficient written notice to the opposing side so that they can prepare a defense. The pleading must set forth a cause of action for the court to grant a divorce, and must state what relief is being requested. Failure to properly request a specific relief in the pleadings will generally preclude that party from seeking that relief as part of the divorce, and may very well preclude that party from seeking that relief in the future. Failure to sufficiently plead can also result in the divorce being dismissed.

The pleadings generally consist of three documents.

1. The Verified Complaint.
   The complaint is prepared and filed by the plaintiff. In it, the plaintiff will allege one or more grounds for the divorce (See DRL 170), and any ancillary relief, such as custody, visitation, child support, maintenance, equitable distribution, exclusive occupancy of the marital home, an order of protection, and any other appropriate relief.
2. The Verified Answer
   The answer is the defendant's response to the complaint. It will admit or deny the allegations in the complaint, and assert any affirmative defenses to the allegations in the complaint. At the defendant's option contain a counter claim for a divorce. Failure to plead an affirmative defense will prohibit the use of that defense at trial.
3. The Verified Reply
   The reply is the plaintiff's response to the defendant's counter claim, if any.

The failure to file an answer, or serving an improperly drafted pleading can result in the divorce being dismissed or a default divorce, depending on which side made the mistake. If you are served with divorce papers, it is critical that the proper responding papers be filed in a timely manner.

DISCOVERY

The longest phase of the divorce usually occurs between the pleadings and the trial. It is possible that the discovery phase can start before the pleadings have been completed, and in some cases, motions will be filed along with the pleadings, or during the discovery phase.

After the defendant's verified answer has been served, the plaintiff is required to file for a Preliminary Conference.

(a) The Preliminary Conference

The preliminary conference is an informal meeting with a judge or judicial hearing officer to set a timeline for the divorce, identify which issues, if any can be settled, and to set up any preliminary consent orders. Generally, without such consent, an pre-trial order can only be granted by making a motion. The preliminary conference will set up the dates for the following exchange of the following information.

• Net Worth Statements
• Appraisal of Pensions
• Appraisals of Real Estate
• Document Requests
• Interrogatories (written questions)
• Depositions (also known as Examinations Before Trial) (oral questions)

If there are children involved, the court will also determine whether the children need independent representation, and if so, appoint a law guardian to represent the children's interest. The law guardian will be paid either by the state or by the parties, as determined by the court.

The date of the compliance conference is also set during the preliminary conference.

(b) The Compliance Conference

The compliance conference is another conference to make sure that both sides have all the necessary information necessary to go to trial. At the compliance conference, each side will either agree that discovery is complete, or request additional time to complete discovery. Depending on why discovery is not complete, the court has the option whether or not to grant this request.

Once the court determines that discovery is complete, it will direct the plaintiff to file a Note of Issue and a certificate of readiness, which states the case ready for trial. Shortly thereafter, the court will set a trial date.

MOTIONS

Motions are requests for an order from the court before a final judgment. Motions are usually written, but sometimes oral motions are allowed. (Post judgment motions, and motions made during trial are beyond the scope of this article. Suffice it to say that these motions exist.)

The purpose of a motion is to request a court order compelling the other party to do something which cannot wait until after the trial is over. For example, compliance with discovery demands (which is necessary to prepare for trial), temporary child support, and temporary maintenance, are some of the common issues which are handled by motions.

Once all motion papers are submitted, the court will issue a decision granting or denying the relief requested.

For further discussion, see the article on motions.

THE TRIAL

After the case is marked trial ready, the court will set a trial date. Very often, a pre-trial conference is held to see if any issues can be settled or stipulated. (For example, it is possible to stipulate to use photocopies instead of original documents.) The plaintiff presents his or her case first, calls witnesses, and submits any documentary evidence in support of their position. The defense will have the opportunity to cross examine the plaintiff's witnesses. At the conclusion of the plaintiff's case, the defendant presents his or her defense, and if a counter claim exists, presents it.

After the trial, the court will issue a decision, either in writing or on the record. The decision will address all issues of the divorce, and all temporary orders are incorporated into the decision. The plaintiff then prepares two final documents, the Judgment of Divorce, and the Findings of Fact & Conclusions of Law, both must mirror the terms of the decision. The plaintiff's attorney must serve a copy of the judgment and findings on the defendant's attorney, so that the defendant's attorney to review them and make sure they accurately reflect the decision. The court will then sign the submitted Judgment and Findings.

All original documents are located in the County clerk's office. Either party to a divorce can review the file and obtain a copy of any document therein. A certified copy is a certification by the court that a photocopy is a true an accurate copy of the judgment and findings, and is available for $8.00 per copy. Note that, divorce files are not a public record, and are available only to the parties, or their respective attorneys.

POST JUDGMENT ENFORCEMENT

Many judgments require one or both parties to take various acts in the future. If one party fails to do so, one enforcement mechanism is to file a post-judgment motion.

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