CONTESTED DIVORCES

First, let me give you some good news. There is a very strong probability that most of you will not have to go through the anguish and expense of a full-blown divorce trial. Nevertheless, you can expect that you will have to move forward as though you were headed in the direction of trial even while your attorney is actively engaged in attempting to negotiate a favorable settlement.

Accordingly, in this two-track approach, your attorney must gather the legal and factual materials that form the basis of a successful trial. Thus, you should understand how the case will proceed:

A. The Summons. A divorce action is commenced by filing of a Summons by the plaintiff (the moving party) with the County Clerk. Thereafter, the plaintiff has 120 days to serve the defendant (the person who is being sued) with the Summons. The defendant must serve a Notice of Appearance within twenty days after service, or thirty days if it is served outside of New York. The Summons states the grounds upon which the divorce is sought as well as provides a brief statement of the kinds of relief that are being requested in the final judgment.

B. The Complaint. This is the first of the pleadings and sets forth in some detail the basis and framework of the action. The grounds (causes of action) for the divorce will be set forth in the Complaint as well as the relief requested which may include equitable distributions, maintenance, child custody, child support, insurance, etc.

C. The Answer. The defendant has 20 days after service to serve an Answer. The defendant may admit or deny specific portions of the Complaint and/or may serve a counterclaim, which is simply a responsive complaint on the part of the defendant. In some cases, the defendant’s attorney may move before the court to dismiss the Complaint on the basis of a procedural problem or insufficient pleadings or a number of other issues.

D. Preliminary Conference. Under the rules of the New York courts, the plaintiff must file a request for a preliminary conference and for the assignment of a judge to supervise the case. The court will then hold a conference which the parties and their attorneys must attend. The court will require that the parties agree to a specific time schedule to undertake and complete certain discovery. The court will also attempt to resolve certain issues and will, at least briefly, meet with the parties. If there are issues involving children, the court may appoint a lawyer for the children (a Guardian) and may also order a mental health examination. The court may also appoint an appraiser for the parties’ real estate, businesses or advanced or professional diaries.

E. Discovery. Each party must provide a sworn Net Worth Statement, which spells out all of the financial information pertaining to assets and living expenses. As part of this financial exchange, the parties are required to provide copies of tax returns, pension plans, life insurance policies, pay stubs and other financial information. These documents should be exchanged by the parties ten days prior to the Preliminary Conference.

F. Interrogatories. Written questions to the other party requesting answers to financial issues. They must be answered in writing and under oath.

G. Notices of Discovery and Inspection. Requests for the other side to produce documents for examination and copying, such as credit card information, partnership agreements, real estate documents, monthly brokerage statements, leases, etc.

H. Oral Depositions. This involves an attorney’s oral questioning of the adverse party under oath. The purpose again is to ferret out information regarding assets and/or standard of living. Virtually anything that sheds light on either the assets or the party’s standard of living is discoverable.

I. Motions. The party’s attorney may move before the court (make a motion) seeking certain financial or procedural relief. Such applications may include a request for temporary maintenance and child support, custody, visitation, counsel fees, exclusive occupancy of the marital residence, a temporary restraining order and/or an order of protection requiring that an abusive spouse be required to stay away from the marital residence or from family members.

J. Pretrial Conference. The court holds a conference to ascertain that all appropriate discovery steps have been undertaken and that the case is actually ready to proceed to trial. At the pretrial conference the court will usually attempt to settle the case.

K. Trial. If all negotiation fails, the case will proceed to trial at which the parties and their witness will offer testimony and exhibits. The judge at the conclusion of the trial will render a decision.