NY Divorce at a Glance. Part 1 of 8: The Procedure of a Divorce
In Part 1 of the At a Glance series, the procedure of a divorce is outlined. Learn about each step from the initial filing to the conclusion of the divorce.
The Initial Filing of the DivorceA divorce case is started by the filing of a summons with notice or a summons and complaint in Supreme Court. The filing fee is $210. These papers must be served within four months time or the case will be dismissed. This time frame can be extended if requested.
When the divorce is filed, the automatic restraining orders immediately apply to the person filing. They are not allowed to transfer assets or cancel insurance or spend money beyond normal expenses which existed during the marriage, other than lawyer fees.
In addition, two additional notices are attached to the summons in addition to the automatic restraining orders. The first is the notice of the loss of health care coverage once the judgment is issued. The second is the notice of the maintenance guidelines.
Once the other side is served with the summons, they too are bound by the automatic restraining orders.
The Preliminary ConferenceThe initial court date outside of an emergency is the "Preliminary Conference" Its function is to schedule the rest of the divorce, setting dates when various steps need to be done.
A preliminary conference order is prepared jointly by the attorneys and signed by the judge. This order will contain basic information, such as names, dates of birth, employer information, the names and ages of children and other background information. It will also list which issues, if any, are resolved or not relevant, and which issues the parties still need to settle or have the court decide.
The preliminary conference order will also address whether an expert is needed to value property, assist determining custody, and whether an Attorney for the Child needs to be appointed.
The Preliminary Conference Order also sets out a schedule for the exchange of information via discovery.
This order will also state when the case should be ready for trial.
It is usually signed by both spouses and the attorneys, and then signed by the judge which makes it a binding order.
DiscoveryDiscovery is the term used for the exchange of information. Discovery may be broken down into two parts; mandatory discovery which applies to all divorces, and optional discovery which is used if needed.
Mandatory Discovery consists of net worth statements, tax returns, W-2, and pay stubs.
Optional Discovery consists of any other documents, giving answers to written questions, giving answers to spoken questions in front of a court reporter, and experts.
Certification for Trial and Pre Trial ConferenceOnce discovery is complete, the case will be certified for trial. The exact procedure will vary from county to county. A pre trial conference is also scheduled. Both sides must also exchange updated net worth statements, a statement of proposed disposition, proposed custody and parenting plans, witness lists, exhibit lists, and if required, trial notebooks.
The Trial or SetlementThe parties can always reach an agreement on any or all issues, such as custody, parenting time, support and so on. If there is even a single issue they cannot resolve, the court will conduct a trial and the court will issue a written decision.
Any agreement on some or all of the issues is put in writing, or in some cases, said in court on the record.
The JudgmentThe judgment is prepared by one of the attorneys. The unsigned, proposed judgment, along with a host of other documents, is submitted to the Court. The judgment must match the decision or if applicable, the settlement.
Motion PracticeSometimes there are issues that cannot wait until the end of the case. If the issues is time sensitive and cannot wait, the court will hear "pendente ;lite" motions on any germane issues.