The steps that must be taken, from the moment that an index number is purchased from the clerk in the county where the divorce will be processed, to the finalization of the Judgment of Divorce, are prescribed in the Uniform Rules for New York State Trial Courts. So is the timeline. The difference is that while the steps are closely adhered to, the timeline is not.
The first step for the party who will commence the divorce is to file with the county clerk either a summons with notice, or a summons and a complaint. It is at this time that the party filing for divorce, who thereafter shall be referred to as the “Plaintiff,” will incur a fee of $210.00 for the purchase of an Index Number, which is the number that will be utilized to designate and track the case as it makes its way through the court system.
Whether the plaintiff opts to commence her divorce with a summons with notice or a summons and complaint, the documents must be served upon the other party, who will thereafter be referred to as the “Defendant”, within 120 days of the filing of the documents with the clerk.
The summons with notice is an abbreviated form of the summons and compliant. The summons with notice does not contain any sworn allegations made by the plaintiff, it simply notifies the defendant that a lawsuit has been commenced to dissolve the parties’ marriage, gives notice of the legal grounds that justify the dissolution of the marriage, gives notice of what the plaintiff is seeking: division of property, custody of children, child support, spousal maintenance, payment of the plaintiff’s legal fees, etc., and it directs the defendant to respond to the plaintiff’s summons with a “Notice of Appearance.” A notice of appearance is a formal acknowledgement of the existence of the divorce action, and a statement of address where all documents pertaining to the divorce will be sent, and contact information where either the defendant, or the defendant’s attorney, may be reached. A notice of appearance will usually include a demand for a formal complaint.
A complaint contains much of the same information as a notice, but is a more formal document that includes sworn statements of fact made by the plaintiff that will be sought to be proven in court if the divorce cannot be settled.
Whether the plaintiff opts to begin with the summons with notice or the summons and complaint, the defendant must respond quickly: within twenty (20) days of being served if served with the papers in person, or within thirty (30) days if not served personally. The penalty for failing to respond timely is to be held in default. The potential ramifications of being held in default, and the remedies that may be available to a party in default, will be reserved for a separate article. Suffice it here to say that tardiness will not be rewarded, and it is therefore very important to respond quickly when served with legal papers of any kind.
Once the papers commencing the divorce are properly served by the plaintiff, and properly acknowledged by the defendant, the question arises whether a judge is necessary to oversee the resolution of the matter. At all phases of the divorce process that parties will be encouraged, and at times pressured, to resolve their issues via mutual agreement. If either party believes that the intervention of a judge is necessary, a document called a “Request for Judicial Intervention” (“RJI”) must be filed with the county clerk, and an additional fee of $95.00 must be paid. Ordinarily, the RJI must be filed and paid for within 45 days of the service upon the defendant of the papers commencing the divorce (summons with notice or summons and complaint). However, if the parties agree that an amicable resolution of their issues is at least possible, either of them can instead file a document called a “Notice of No Necessity.” Once the Notice of No Necessity is filed, the parties can wait 120 days (as opposed to 45), to file an RJI and get a judge involved.
Once an RJI is filed, a Preliminary Conference (“PC”) with the judge will be scheduled within 45 days. Both parties, and their attorneys if they have them, must be present at the PC.
In preparation for the PC, both parties and their attorneys will prepare a document called a “Net Worth Statement.” A Net Worth Statement is a detailed report that sets forth each parties’ income, expenses, assets and debts. It is a sworn statement by the party who prepares it, and it must be certified by their attorney. It is the primary mechanism of disclosure between the parties, and will be extensively relied upon by both parties and their attorneys as they seek an amicable resolution of the divorce, or if that fails, at the trial of the divorce lawsuit. For this reason, the Net Worth Statement must be carefully and accurately prepared, and carefully reviewed before it is signed and exchanged. The Net Worth Statements for both parties must be completed and exchanged no later than ten (10) days before the PC, and the information contained in the parties’ Net Worth Statements will be among the primary topics of discussion at the PC. In addition to their Net Worth Statements, the parties must also exchange the retainer agreements that they have entered into with their attorneys.
The objective of the preliminary conference will be an attempt to resolve the following issues:
- Has the divorce been properly commenced;
- Have net worth statements and attorney retainer agreement been properly exchanged;
- Have both parties been given adequate notice of the various issues that, by law, they are required to be given notice of (i.e.: notice of financial restraints pending the finalization of the divorce, notice of the effect of divorce on health care coverage, notice of possible entitlement to spousal maintenance, notice of the availability of mediation or alternative dispute resolution, etc.);
- Are there any prior orders or agreements between the parties that will impact the resolution of the divorce (i.e.: premarital agreements, family court or criminal court orders, etc.);
- What issues, if any, are already resolved (i.e.: grounds for divorce, custody of children, payment of child support, payment of spousal maintenance and/or attorney’s fees, division of marital property, identification and segregation of non-marital property);
- What issues are unresolved;
- What steps must be taken by the parties to resolve outstanding issues, a schedule for the completion of the steps, and an assessment of how the steps towards resolution will be paid for by the parties (i.e.: exchange of documents, depositions of parties and witnesses, appointment of experts to conduct valuations of martial property, appointment of an attorney to represent the interests of children in the divorce proceedings, etc.);
- What, if any, preliminary orders must be issued by the Court (i.e.: temporary child custody, temporary child support, temporary spousal maintenance, temporary payment toward legal fees, etc.);
The preliminary conference will usually be held in a private conference room outside of the courtroom, and will usually consist of the judge’s assistant (the Court Attorney), and the attorneys for the parties. There will usually be a back-and-forth conversation between the parties with their attorneys, and then between the attorneys with the Court Attorney as the attorneys advocate their client’s positions, and then the Court Attorney will send the attorneys back to their clients to try to obtain compromises. The preliminary conference will usually conclude with a written document setting forth all of the issues resolved, all of the issues remaining unresolved, and a list of the tasks to be completed and the schedule for completing them that will hopefully achieve a resolution of the dispute. The document will clearly state that any issues not listed therein as “unresolved” cannot be raised later in the action without good cause for why they were not already raised at the conference. The document, called the “Preliminary Conference Order,” will be signed by both parties and their attorneys, and then signed by the judge, rendering it an Order of the Court that may lead to the sanction of Contempt of Court if its requirements are not met.
According to the rules, all discovery must be completed, and either the case resolved, or a trial date scheduled, no later than six months from the date of the preliminary conference. In my experience, this rule is honored in the breach. The court will make many allowances, and allow many extensions of time, to enable the parties to resolve their divorce without a trial. The reasons for this leniency range from the practical to the humane:
First of all, trials demand a lot of time and energy from the Court and its staff. The Courts simply don’t have the resources to provide trials to every divorcing couple who cannot resolve the termination of their marriage a mere fifteen and a half months after the purchase of an index number.
Second, trials usually do not serve the best interests of the parties themselves, much less the children involved. Trials cost a lot of money in legal and expert fees. Most people don’t have the money to spend on a trial, or even if they do, their money will be much better spent on themselves or their children as they embark upon their new and separate lives.
Third, divorce is hell. Best-case scenario: the parties will start over again, emotionally and financially intact. Maybe they need never see each other again. But often they will: recitals, games, graduations, weddings, birthday parties… If there are children involved, (God willing) those children, and their children, will outlive the parties. For the parties’ own sake and the sake of those they love, civility will be an important asset in the future. And the potential for future civility will be on trial at the trial, as opposing lawyers vie for advantage, each striving to take away from the opposing party what wasn’t relinquished by them voluntarily.
Fourth, human beings tend to comply with the agreements they have made, and they tend to resist orders that have been imposed upon them. Experience has shown that parties who leave court with an agreement are less likely to come back to court, and that’s good for everybody.
So, the agreement is king, and the Court will do whatever it can to help make it happen. In short, while the steps set forth in the rules are generally adhered to, the timeline depends entirely upon the circumstances, the assets, and the willingness of the parties to compromise. The entire process can take months, or years. I generally counsel clients to measure the process less in terms of time, and more in terms of stress. If you can emerge on the other side of a divorce with the feeling that you have been treated fairly, that your dignity is intact, and that you are prepared to go on with your life and be happy again, then you have succeeded.
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