The Early Stages of Contested Divorce in New York

In this article, you will learn about:

• What you should do if you have received a Summons via mail, e-mail, or in-person.
• What happens next if you can’t reach a settlement agreement in your NY divorce.
• How to handle custody issues in the divorce settlement process.

How Long Does Someone Have To Respond To A Petition Of Divorce After Being Served?

Generally speaking, you have 20 days to respond to a Summons. However, this timeframe will depend on the manner in which you were served.

Typically, divorce cases require defendants to receive a Summons via personal service. This refers to the act of a process server going to your house, place of business, or wherever else you may be – and handing you the Summons in person.

So, if you receive a Summons via the mail or email, it may not count as good service – and the 20-day response window will not likely begin.  Nevertheless, it is still advisable to consult with a family law attorney – however you receive a Summons. When you receive a Summons, you never know what actions the plaintiff has already taken.

For example, the plaintiff may have attempted service unsuccessfully and received permission from the court to serve you in an alternative manner.  Typically, this is done through a “fix and mail service” where the Summons is mailed or left by the door.

As such, it is best to contact a family law attorney as soon as possible to ensure that any legal action against you is appropriately handled.

What Is the Timeline For The Process Of A Contested Divorce In New York?

Divorce cases do not necessarily become contested immediately. The courts typically encourage the parties to negotiate a settlement first — and often, this is possible. However, when the parties cannot agree on the terms of their divorce, the matter will become contested.

Sometimes, there is simply no realistic chance for an uncontested resolution. For example, if the other party is immovably opposed to the terms of the separation, negotiation may be a waste of time. This tends to be especially common when one party wants sole custody of their child — and isn’t willing to settle for anything less.

In any case, contested divorces are those that require judicial intervention (“RJI”). If it appears this is the best course of action at the onset, it’s best to get the case moving along. One should file the request to have a Judge assigned to the case and schedule a preliminary conference as soon as possible.

If the parties do not agree on the terms of their divorce but may be able to come to a settlement, there are other options. The courts will typically give the parties 120 days (or four months) to negotiate an agreement.

If, after 120 days, you have not been able to reach a settlement — the courts have a “soft rule” requiring one to file for a preliminary conference at that point. This is referred to as a “soft rule” because there are rarely any consequences for those who do not file for judicial intervention at the 120 mark.

Whatever your choice, one should file at the RJI at the 4-month mark. If you cannot settle after 120 days of negotiation, any remaining issues will usually remain contested. Therefore, filing helps to keep the process in motion, allowing clients to resolve the matter as soon as possible.

What Are The Next Steps In A Contested Divorce If The Parties Cannot Agree On Custody or Division Of Assets And Property?

Custody is often the biggest roadblock for those who attempt to resolve their divorce in an out-of-court settlement. There is very rarely a middle ground for parents who have sharply differing ideas about what is best for their child. So, the next step is to file a request for judicial intervention.

Judicial intervention asks for a Judge to be assigned to the case. The court will then schedule a preliminary conference, which both parents and their attorneys will attend. (These hearings are now often conducted online – via Microsoft Teams – due to the COVID-19 pandemic. Eventually, the courts will likely return to in-person proceedings.)

You may see the Judge at a preliminary conference, but it is rare (at least in the greater NYC area). In some New York courts (including Westchester county), the preliminary conference is conducted before a Referee. Meanwhile, many other courts hold preliminary conferences before a Judge’s Court Attorney.

At the conference, you will discuss the disclosure of financial documents and other information. A schedule will then be established to create a deadline for these exchanges. Additionally, you will discuss the specific issues in the divorce that are being contested. This will allow the court to determine the problems that need judicial intervention and what disclosure is necessary.

There will also be time to determine whether any interim orders need to be placed during the divorce proceedings. These orders can include provisions for:

• Custody
• Visitation
• Child Support
• Spousal Maintenance
• And more . . .

Finally, there is the last step of the hearing. At the preliminary conference, the court will determine the need for any home studies, forensic psychological evaluations, or the assignment of a children’s attorney if custody or visitation is contested.

For more information on Responding To a Divorce Summons In NY, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (347) 797-1188 | (914) 362-3080 today.