Can You Provide A Brief Timeline Of The Divorce Process?
A typical flow of the uncontested case will start with the filing of the case. You can either file with a summons with notice or a summons & complaint. I have always filed my divorce cases as summons & complaint, simply because the complaint is the actual “pleading” that you’ll need to get divorced. The summons with notice is similar to putting someone on notice that you are filing for divorce. It’s filed with the county clerk’s office in any given supreme court where the party resides.
The current filing fee as of 2017 is $210. Then, the filer has up to 120 days presumptively to serve the other side with the summons in complaint. You can do via either formal service or informal service. Formal service means you have a licensed process server attempt to serve them. Informal service means that either my client gives the other person the papers, or I email or mail it to them. Informal service requires his/her signature or an acknowledgement that they’ve actually received the summons, while formal service does not. So, if they are formally served by a licensed process server, you no longer need his/her signature or consent. If your spouse formally answers the summons, then a lot of times it means they’ve hired an attorney, though not always.
Once they answer the summons on an uncontested, the attorneys commence settlement negotiation and hope to resolve the case. From the point that the defendant files his/her answer to the complaint, the law gives another 120 days to presumptively negotiate a settlement. After the 120 days have passed, the law essentially encourages the filing of a contested case. At any point, however, either party can trigger a contested case. As such, if either party thinks the settlement negotiation isn’t going to result in a successful settlement, s/he can trigger a contested case any time before the 120-days lapses. If you exceed the 120-days because you were actively negotiating a settlement (which ended up being successful), in my experience no court is going to reject the divorce just because you exceeded the 120 days.
There are certainly cases where you attempt to serve the other side within that 120-day window, but you are not successful in doing so. Then the issue becomes, is the person found and you are not able to effectuate service? Or, is the other side’s whereabouts unknown? If a server attempts service a number of times and is able to verify they have the correct location, then you can apply to the court for a “substituted service.” This usually means a server will be authorized by the judge to leave a copy of the summons at the door, and then mail it to them – that’s still considered “good service.”
If the server is not successful in verifying your spouse is actually at the address you thought they were, then there’s a need to hire a private investigator to look for the person and attempt to get a good address for the person. The private investigator will either be successful or not. If they are not successful in that process, then they will produce a diligent search report. This report will then be submitted to the judge with the request that the judge approve publication notice. Before one goes the route of a publication notice, one is highly encouraged to exhaust every single avenue one can possibly think of to locate a good address (even if it’s an email address or a Facebook address). If one can locate something, one may able to get cooperation in effectuating service.
If one can’t find the spouse anywhere, then the only other thing a court can do is to authorize publication notice. Unfortunately, here in New York, publication notice means running a copy of the summons in the legal notices section of the newspaper. Oftentimes (especially in the greater NYC-area) Judges approve either the Daily News or New York Times – which will run a party somewhere in the neighborhood of $6,000 to $8,000. So, it’s an extremely expensive procedure – and that is why I highly encourage all of my clients to exhaust every single avenue before they have to go down that road.
If you need money to pay for your attorney, pay large bills, etc., you’re best advised to secure those funds before the divorce is even filed. Once the case is filed, as stated, you may be restrained from accessing certain funds without consent of your spouse. As such, if there’s a house which needs to be sold, go ahead & sell it (with, of course, the consent of your spouse) before the case is even filed. If there is a dispute as to credits owed to 1 party, or debts which need to be paid, then evenly split the undisputed funds & place the remainder in the escrow account of 1 of the attorneys.
If you have a large amount of money in a bank account, or investment account, you can handle it the same way. Split the undisputed money evenly, and any remaining funds you can either leave it in the joint account, or deposit it in 1 of the attorneys’ escrow accounts. I have handled far too many cases in which the parties do not do this, then file their divorce case – only to discover they cannot then access the joint funds to pay for their attorney or pay large bills. Better to act now than pay your attorneys to fight it out!
After service of the initial paperwork is complete, the “defendant” usually serves either an Answer and/or a “Notice of Appearance.” Bear in mind the “requested relief” (claims specified in the complaint) are usually just “boilerplate,” umbrella terms, and are mere reservation of the filer’s rights to pursue such claims. This “ancillary relief” section in the complaint does not constitute the filer’s settlement offer.
In any event, after the “pleadings” are served (pleadings are the complaint & the Answer), then the attorneys (on behalf of their respective clients) attempt to negotiate a settlement of the case. As described briefly in Chapter 1, the attorneys will go back-and-forth between themselves and their clients to see if a middle ground can be reached on all possible claims. If it can, then it results in a settlement agreement, which is usually a 20-50+ page document resolving all possible issues between the parties. One attorney or the other then completes the “judgment package” and then submits the package to the Court for the Judge’s signature.
If the attorneys are unsuccessful in negotiating a settlement – meaning there’s a disagreement on 1 or more issues – then either party may “contest” the case (as described below).
I will also very briefly go through the process of a contested case.
A contested case is where – at some point in the negotiation process – one party or the other does not think the negotiations will end in a settlement. They file what’s called a “request for judicial intervention,” which is just a long way of requesting that a judge be assigned to the case. With this filing, a court will schedule the initial court date called the “preliminary conference.”
At the preliminary conference, especially in New York City and the greater NYC area, generally the attorneys will meet first with the Judge’s Court Attorney (or Referee), which is similar to the Judge’s “right-hand man/woman.” This initial meeting is usually just with the attorneys present – though in some counties (e.g., Westchester) the parties may be involved at even this initial meeting. The Court Attorney/Referee will discuss settlement issues and make settlement suggestions.
The Court Attorney/Referee will also set up a discovery schedule, which is a formal exchange of financial documents and information. The court will also determine whether or not various forensic experts will be needed. If custody or visitation is an issue, they will decide whether or not to appoint an attorney for the child or children. They’ll also certainly discuss what issues are being contested, and how far apart the parties are on settlement negotiations. Oftentimes, the judge or the referee will make settlement suggestions to the parties to try and bridge the gap. If a settlement is not in the cards at a preliminary conference, then the court will set up what is commonly called a compliance conference, which is just a date to come back to make sure that all the discovery has been exchanged, and that all the forensic reports are in.
Additionally, if one party or the other is seeking interim relief – either an interim order of spousal maintenance or child support, an interim order than the other side pat for his/her attorney’s fees, or an order of protection – the requesting party must generally file this motion for it to be hear at the preliminary conference. While at times a Judge may overlook this rule, one should not count on it happening in your case.
In contested cases, people often do depositions of both parties, and sometimes third parties. Depositions are where the parties are grilled under oath in the opposing attorney’s conference room (with a reporter present). Some of the advantages in doing them are that they serve to lock in a party’s testimony (so the attorney isn’t questioning a witness for the first time at trial), and to learn information one cannot glean from financial documents themselves.
Oftentimes depositions are held off on until the very end of the case, simply because they are extremely expensive to do. I usually tell my clients that in order to do a deposition, they are looking at a $5,000 cost. I don’t want to incur this cost for them unless it seems like we’ve exhausted every other avenue and we just can’t settle the case. If the case still can’t settle, they’ll usually set up deposition dates at the compliance conference. If we still can’t settle at the final court date (called a “pre-trial conference”), all the discovery has been exchanged and all the forensic reports are in, then the Judge will schedule a trial.
Short of depositions, many times parties do “demands for discovery & inspection,” which is simply a demand to produce financial documents. As the law provides for an “extensive exchange of financial information,” one can expect to exchange several years’ worth of records, such as tax returns, bank account statements and credit card statements.
Additionally, parties to a contested case often do “interrogatories,” which is just a list of questions the party must answer “under oath.” Collectively these tools are called “disclosure.”
If either party fails to provide the disclosure to the other side, or the production is inadequate, the requesting party may file a “motion to compel disclosure,” which is a request that the Judge review their request and order (under threat of sanction) that the other side produce the missing disclosure by a certain deadline. Most of the time, however, the Court will want the movant to document his/her attempts to resolve the issues without the necessity of filing the motion.
Notably, these attorney’s tools are rather limited in discovering hidden income or assets. Ultimately, a party alleging hidden income or assets may need to hire a private investigator or – depending on the nature of the income/assets – a forensic accountant.
As mentioned, beyond the “preliminary conference,” the court usually conducts 2 other conferences – the compliance conference and the pre-trial conference (though any of these conferences may be adjourned more than once).
In brief, the “compliance conference” is merely the “middle-of-the-road” conference to check on the status of exchange of disclosure, and to set further deadline dates for disclosure and/or dates of depositions.
At a “pretrial conference” date, the parties will have to submit – among other things – a proposed statement of disposition, updated net worth statements, and in a growing number of courts (including Westchester), they have to submit what is called a “trial notebook.” A trial notebook essentially consists of pre-tabbed exhibits that each party intends to put into evidence – along with witness lists. It is very costly to put together a trial notebook, and oftentimes people are at the end of litigation at that point. Those fees mount really fast when parties are looking at doing a trial, and this is problematic if the parties are in need of money and do not have incomes that are well into the six-figures.
In that case, I usually have a discussion with clients – bringing them back to the cold hard cost-benefit analysis. If we are off in the negotiations by $10,000, $20,000 or even $30,000 (i.e., the difference between 1 party’s settlement offer & the other’s), then between paying my fees to do a trial as well as the other costs associated with it, some people may actually be better to offer his/her spouse the money than to give it to the attorney. Although the attorney’s wallet is always open to accept donations, oftentimes it’s better to offer the other side that money and make the issue go away. This is because you are going to have to spend the money anyway, and you’ll either win on the issue or you’ll lose. Either way, you will have still have spent $10,000, $20,000 or $30,000 (or more) paying the attorney. On top of that, you will still face the prospect of spending the same amount of money if you lose on the issue, whether it involves asset division or a maintenance issue.
That’s pretty much the flow of a contested case. You are looking at approximately three to five pretrial court dates, and typical trials are usually conducted between approximately two and five trial dates.
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