What if we can't agree or my spouse won't sign? A Guide to Contested Divorce STAFF PICK

David Alexander Browde

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Divorce / Separation Lawyer

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Posted over 4 years ago. 10 helpful votes

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Every divorce case is different, but they all tend to follow the same types of procedures. Each state has its own procedures and processes for handling divorce cases, but ultimately the issues that must be decided such as custody and economics are the same for everyone filing for a divorce.

1

Every state's divorce procedure is different

The specifics in this guide follow New York rules - but the general principles are applicable everywhere. There are possible variations in the process that allow the Courts to handle the circumstances of any possible divorce case. So, your mileage may vary. But hopefully this guide will give you an overview of the contested divorce process and what you can expect.

2

Initial filing

A contested divorce is one in which at least one issue is unresolved on the date of the first divorce filing. In New York, that first filing can take one of two forms, either a Summons with Notice or a Summons and Complaint. Either form is designed to do two things: 1) Give the other party notice that their spouse is seeking a divorce, and 2) Formally end what's known as the marital period, that is, the period during which the marriage is viewed as a continuing economic partnership. After the filing of the first papers (in either form), the party who filed has a period of time (in New York, 120 days) to have the papers formally served on their spouse. Each state has its own rules on service and there are special rules for service overseas.

3

Service of process

Service of process must be followed by the filing of proof of service (in New York, in the form of an Affidavit of Service must be properly filed within 30 days of the service). This affidavit tells the Court that the other side has been given formal notice and is properly under the jurisdiction of the Court. If there's a good reason that service cannot be accomplished within 120 days, the filing party may return to the Court to request either more time or permission to use alternative means of service, such as service by publication.

4

Response

Depending upon which form is used, Summons with Notice or Summons and Complaint, the form of the response will be different - but in either case the response must be made within a specific number of days of service of the documents. In New York, that's either 20 or 30 days, depending upon the method and place of service. If Summons with Notice was used, the form of response is a Notice of Appearance, usually with a Demand for a Complaint. If that Demand is served, the Complaint must be served by the party seeking the divorce within 30 days. Service of the Complaint triggers a 20 day period during which the Defendant must respond with his or her Answer, or, in very unusual circumstances, a Motion. If the initiating papers were a Summons and Complaint, the response is an Answer (sometimes with Counterclaims) or, in very unusual circumstances, a Motion.

5

Request for judicial intervention

Once the Answer is filed the case is ready for the Court to start handling it. Some states, including New York, require filing of a special document advising the Court of that fact. In New York, the document is known as a Request for Judicial Intervention, or RJI. That RJI triggers the Court scheduling apparatus to assign the case to a Judge and to set up a preliminary conference. New York's Courts require that basic financial disclosure be turned over either before or at the Preliminary Conference. That disclosure takes the form of a document called the Net Worth Statement, a highly detailed list of assets and liabilities, two or three years of tax returns and current income information.

6

Morning of the preliminary conference

Depending upon the Court's procedures either the judge or a clerk or law secretary meet with the two sides to see what issues have been resolved and which will require the Court's attention, and to set a schedule for the case. There are a very limited number of issues in a divorce case - and the issues are always the same, even if the facts of the cases are different. In New York you have to resolve the grounds for the divorce (it's the only state in the nation in which no fault divorce is unavailable, so that issue comes first). If the couple has children then there are custody and child support issues. One spouse may also ask for spousal support (alimony). If the couple has property or other assets, including IRAs and 401k accounts, the question of how that property will be divided must be resolved (in New York this is called equitable division). One party may want some extra relief, such as permission to resume a previous name, or removal of religious barriers to remarriage.

7

Preliminary conference

Having none of the issues resolved will really start you off on the wrong foot with the court. Remember, the court has to deal with a huge number of cases. Fighting over who gets the wedding gifts isn't going to endear you to the judge. If you're both represented by an attorney, the attorneys may be asked to step into a private, off-the-record discussion about how the case's issues might be resolved. If what the court has heard is that there is no agreement on key issues and there are no substantial assets you can expect that the attorneys and you will get heavy pressure from the Court to compromise on as many points as possible, perhaps right on the spot. If at the end of the conference there are still unresolved issues the Court will have the attorneys agree to a schedule for discovery on those issues, There will be a discovery cutoff and a trial date set, most often within a year unless the case is unusually complicated.

8

Pendente lite

One possible variation that can alter the early case scheduling is a Motion for Pendente Lite relief. "Pendente Lite" means for the pendency of the case. It's a motion asking the judge to issue an order, typically affecting custody, visitation and/or financial support. This motion can be made at any time during the process, and can result in the judge making a determination that often closely resembles the final outcome of a divorce in which the Court is forced to make the financial decisions. For this reason, even though a Motion for Pendente Lite relief can seem expensive, it can be cost effective. If your spouse has a competent attorney and he or she sees the ruling on a motion for Pendente Lite relief, unless there's something truly and provably wrong about the decision (and that doesn't happen often) the attorney should be telling the client that it's as good idea to settle the case along the terms of the judge's ruling on the motion.

9

Discovery

If there is no motion or the ruling on the motion doesn't produce a settlement, the case moves on to discovery on any contested issues under the schedule set at the preliminary conference.

10

Resolution prior to trial

Because each state's laws on divorce are well understood by the attorneys, fewer than one in a thousand divorce cases are not resolved prior to trial. Unless someone is being completely unreasonable or the parties are hugely wealthy and have a great love of spending money on legal fees, there is rarely an incentive to go to trial in a divorce case. Issues that haven't been resolved by negotiation can often be settled pre-trial in a conference with the Court in which the judge is asked, "Under these circumstances, can you offer the parties any guidance on how you (the judge) typically rule in situations like this." If you hear an attorney ask this question, the answer will be important. It's the Court's way of saying "Based on what I know now, you can expect me to rule in this way." At that point you have to evaluate whether there is anything that the judge doesn't know that will be enough to change the ruling - and if there isn't, it's prudent to settle.

11

Default judgments

Sometimes a defendant doesn't answer at all. In that case the party seeking a divorce can seek a default judgment, including orders covering all the various forms of relief - the divorce itself, custody, child support, and spousal support can all be awarded by the Court on the basis of a default. Default judgments may avoid the fight at first, but can, under some circumstances, lead to a challenge later and a review of all the relief awarded. If you're moving for a default judgment your attorney will make sure that the service of process and affidavit proving that service is rock solid. If there's the slightest flaw in the service or the affidavit your divorce and all that flows from it may be subject to challenge, something that will be both upsetting and expensive...and then you'll likely face going back to the very beginning of the process and starting all over again. This is a mistake you don't want to make - going through a divorce once is tough enough!

Additional Resources

David A. Browde, P.C. represents clients in family law matters throughout the New York City metropolitan area, including all suburban counties. Please feel free to call or e-mail for a consultation.

David A. Browde, P.C. - New York Divorce Lawyer

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Related Topics

Divorce

Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Contested Divorce

A contested divorce is one in which the divorcing parties are not in agreement on all of the issues at the time the divorce is filed.

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