The Divorce Process in New York
“What is the divorce process in New York like?” and “What is the timeline for a divorce?” are two of the most common questions asked by potential clients. These two questions seem simple enough, but there are far too many factors that must be taken into consideration before a more accurate answer can be given. This is why the staff at Brian D. Perskin & Associates P.C. always encourage New Yorkers to schedule a free divorce consultation.
That being said, we wanted to provide an outline for the process, so those facing divorce can have a better idea of what to expect.
What Kind of Case do You Have?
Contested and uncontested divorces are vastly different beasts. Uncontested divorce cases are fairly simple and straight forward, and can be completed in a relatively short period of time. Contested matters, on the other hand, are much more complicated. These cases often involve disputes regarding child custody or visitation, the division of marital or business assets, and claims to 401(k) and other retirement plans. Generally, contested matrimonial cases require extensive motion practice, litigation, and settlement negotiations.
Given their more complicated nature, contested divorce actions require more time to complete, so the process will be much longer and complex. Knowing what kind of divorce you have will help us to determine the appropriate course of action in order to get your divorced as quickly as possible.
Filing a Summons for Divorce
In order to initiate a divorce action, you must file a Summons with Notice, or Summons and Complaint, in the Supreme Court’s County Clerk’s Office. A Summons with Notice simply informs your spouse that you have filed for, and are seeking, a divorce. A Summons and Complaint lets your spouse know that you have started an action, and also lists the grounds for divorce, and any relief you may be seeking. Examples of relief commonly sought after in a Summons and Complaint can include, but are not limited to, custody, exclusive use of a marital residence, or the desire to remain on their health insurance plan.
There is a fee of $210.00 to file for divorce in New York. When you file your Summons in the Clerk’s office, you will be given an Index Number. The Index Number will appear on all future documents, and acts as an I.D. number in the court’s system. If you cannot afford to pay the $210.00 fee, you can request that the fee be waived. A representative at the Clerk’s office can provide you with more information and an application.
Serving Your Spouse
New York State has very specific rules for serving documents upon an opposing party in a court case. In a matrimonial action, the defendant (your spouse), must be personally served with the Summons within 120 days of the Index Number being purchased. An Affidavit of Defendant is served along with the Summons with Notice or Complaint. You are not allowed to serve documents on your spouse. Only a non-party to the action, who is over 18 years of age, is allowed to serve a Summons.
Most law firms, including Brian D. Perskin & Associates P.C., work closely with process serving companies and organizations to complete service requests in a timely and accurate manner. We will include a letter of instruction addressed to your spouse, explaining the documents and what steps are required.
Once personal service of a Summons is completed, an Affidavit of Service is executed and filed with the court. If the defendant is a resident of New York, they will have 20 days to respond to the Summons, or 30 days to respond if they reside outside of New York. Your spouse can either retain an attorney who will file a Notice of Appearance and draft a Verified Answer, or file a Verified Answer independently. If your divorce is uncontested, your spouse may sign the Affidavit of Defendant and return it to our firm within 40 days of being served.
Affidavit of Defendant vs. Verified Answer
Which step your spouse takes after being served will determine what kind of divorce you now have. If your spouse signs the Affidavit of Defendant within the 40 day deadline, then your divorce will remain uncontested. When this happens, our experienced staff will complete the rest of your required forms, which can include:
- Affidavit of Plaintiff and Defendant
- Note of Issue
- Child Support Worksheet
- Child Custody Agreement
- Judgment of Divorce with Findings of Fact; and
- Certificate of Dissolution of Marriage
If your spouse disagrees with any stipulation listed in your Complaint, then he or she will draft and file a Verified Answer and Counterclaim. In this document, they will detail which items in your Complaint they agree with and deny. Your spouse has the right to request any relief they may want or deem appropriate, but that doesn’t necessarily mean a judge will issue a Judgment in their favor.
Reasons why defendants disagree with a Summons and Complaint vary on a case by case basis, but typically include:
- Refusal to give up primary custody of children
- Unwillingness to relinquish rights to marital home
- Disputes over spousal support payments; and
- Disputes regarding equitable distribution
Preliminary Conference and Discovery
One of the first court appearances during a divorce action is the Preliminary Conference (PC). During the PC, the court will set a timeline for the case, address any issues that can be settled early, and issue preliminary or temporary orders. During the PC, a judge will also set a deadline for when the discovery process must be completed.
The discovery phase of a contested divorce begins after a Verified Answer is filed and served. The discovery process can be extensive and exhausting, but it is essential in determining the equitable distribution of marital assets. During this period, each party will serve their opponent with Discovery Demands. These demands require each party to produce relevant financial documents, tax returns, health and life insurance information or records, and a Statement of Net Worth. All requested documents must be produced in a timely manner.
It is important to make sure you hire an attorney who has an extensive background in analyzing discovery production, as it is common for estranged spouses to try to hide assets. Hidden assets can result in an unfair settlement, and a lower amount paid (or received) in maintenance or child support. At Brian D. Perskin & Associates P.C., we work tirelessly to review your spouse’s discovery production and look for any discrepancies. We strive to get you the fair and equitable settlement you deserve.
Motions and Trial
The filing and drafting of motions, as well as trial preparation and appearances, are the most time consuming aspects of the divorce process in New York. Types of motions and preparations for trial are case specific, and will vary on a case by case basis.
A motion is a request made to the court to rule on a certain issue, such as child custody, temporary spousal support, compliance with discovery demands, and requests for counsel fees. These kinds of motions are known as pre-trial motions. All motions will include supporting documents, known as exhibits. Your spouse has the right to disagree with any motion that you file, and they can do so by filing an Affidavit and Affirmation in Opposition.
All of your attorney’s previous work during the initial filing, the discovery process, and all motion practice leads up to the divorce trial. During trial, both parties and their respective lawyers will appear in front of a judge in a court room. Trials are open to the public. The plaintiff will present his or her case first by calling and questioning witnesses, forensic experts, and submitting evidence to the court. The plaintiff’s attorney will often question the defendant, and vice versa. After the plaintiff has presented their case to the court, the defendant will proceed.
There is no set time frame for a divorce trial. We have had trials conclude in a day or two, and some that have lasted multiple weeks. Motion practice and litigation are two aspects of divorce that require the keen eye of an experienced matrimonial or family law attorney. You are setting yourself up for disaster if you attempt to proceed to trial without proper representation.
Final Papers and Judgment of Divorce
After the contested divorce trial has concluded, the judge will issue a decision, either verbally on the record, or written. The decision will address all of the issues raised during trial and throughout the divorce proceeding.
We should not that you will not be divorced until final paperwork is submitted to the court and the Judgment of Divorce is signed by the judge. New York City courts are extremely backlogged, and it can take anywhere from 4 to 6 months for your Judgment to be signed and entered after the date of filing. We will take care of preparing and filing your final paperwork, and we will routinely follow up with the court to check the status of your Judgment. Once your Judgment is entered in the Clerk’s office, a representative from our firm will purchase a certified copy from the County Clerk, and forward it to you by mail.
The divorce process is full of challenges, and no two cases will play out the same. This is why it is critical to the success of your case to hire a qualified attorney to advocate for your best interests throughout the process. The family law firm of Brian D. Perskin & Associates P.C. specializes in divorce and child custody actions, with an emphasis on complex and contested matters. Brian and his team have over 50 years of combined experience negotiating, litigating, and settling cases throughout New York City. For more information, or to schedule a free consultation, contact us today!