Frequently Asked Questions: Divorce
How do I file for divorce?
A divorce action is started by filing a document called a Summons with Notice with the County Clerk. The Summons with Notice states that you are seeking a divorce, the grounds for divorce, and other relief that you want the Court to grant you. You are called the Plaintiff and your spouse is the Defendant. A copy of the Summons with Notice is served on your spouse (hand delivered by a process server) after it is filed. Sometimes a more detailed document, called a Verified Complaint, is filed and served with the Summons with Notice.
What are the grounds for divorce in New York?
Divorce law is a matter of state law and each state has its own unique set of laws. Since October, 2010, when New York added a true no-fault ground, most divorce actions are based on the irretrievable breakdown of the relationship for six months or more. However, there are other grounds for divorce which remain on the books, as follows: (1) cruel and inhuman treatment; (2) abandonment (actual abandonment is when your spouse leaves the marital home or locks you out; constructive abandonment is when your spouse refuses to engage in sexual relations); (3) your spouse has been imprisoned; (4) adultery; (5) you live separately for a year after a judgment of separation is issued; and (6) you live separately for a year after a separation agreement is signed.
How will my spouse get notice of the divorce action?
The Summons with Notice or Summons and Verified Complaint will be personally delivered to your spouse by a process server.
What happens after the Summons is served?
If both parties and their attorneys feel it will be worthwhile, a four-way conference may be held in our office to negotiate a settlement. Otherwise, a Request for Judicial Intervention is filed, a judge is assigned to your case and a court appearance (Preliminary Conference) is scheduled.
What is an uncontested divorce?
An uncontested divorce is when both people agree that they want to get divorced, and they have reached an agreement on all issues, including occupancy or sale of the marital home, distribution of assets such as cars and bank accounts, payment of debts, custody and visitation of children, child support, maintenance (alimony) and medical insurance. We will prepare a Stipulation of Settlement and other documents for both of you to sign. However, we cannot represent you and your spouse. Your spouse can retain his/her own attorney or decide to proceed without legal representation. You will not have to appear in Court.
Sometimes a divorcing couple have worked out most, but not all, of the issues of their divorce. If you believe that the remaining unresolved issue or issues can be worked out, we will send a letter to your spouse advising him/her that we have been retained to represent you and that he/she should have his/her attorney contact us. The parties will meet at a four-way conference to "hammer out" these remaining issues. It is called a four-way conference because it is attended by both the parties and their attorneys. It is usually preceded by the exchange of financial disclosure documents called "Statements of Net Worth." If the four-way conference succeeds, one of the attorneys will draft a Stipulation of Settlement based on the outline of the agreement reached.
I think my divorce will be contested. What will happen after my initial consultation?
We can immediately start an action for divorce on your behalf and have your spouse served with the divorce papers. If you are in a situation which requires immediate court intervention, such as you have been cut off financially or your spouse is threatening to hide assets, a motion to the court may be brought simultaneously with the commencement of the action for divorce (see Pendente Lite Motions, below).
What should I do if I was served with a Summons for divorce?
You should contact an attorney immediately, as you have a limited amount of time to formally respond to the Summons either by Notice of Appearance (if you were served with a Summons with Notice) or Verified Answer (if you were served with a Summons and Verified Complaint). If you fail to respond in time, you are in default, and your spouse may be granted all of the relief that he/she has requested. By the same token, you will not be able to get the relief you are entitled to.
Will I have to go to Court?
In Suffolk County, divorce cases are handled in the Supreme Court in Central Islip. In Nassau County, the Supreme Court is located in Mineola. In New York, only the State Supreme Court has jurisdiction to handle divorce cases (Family Court does not issue divorce judgments). The first court appearance is called the Preliminary Conference, and there are several court conferences held periodically thereafter until the case is ready to go to trial. You are generally required to attend all conferences.
What will happen at the Preliminary Conference?
At the Preliminary Conference we will negotiate and assist in drafting a Preliminary Conference Stipulation and Order which sets forth a schedule of resolved and unresolved issues, directs the appointment of necessary experts to conduct appraisals, determines who will pay for them, appoints an attorney for the children (if needed), and determines when documents must be exchanged and depositions held. The Preliminary Conference Stipulation will be "so-ordered" by the judge, and is binding on both parties. It may also contain agreements resolving matters of immediate importance, such as agreements to support the household during the divorce, restraints on alienation of property, etc.
How long will it take to get divorced?
If you reach a settlement of all issues involved in your divorce and execute a Stipulation of Settlement, the divorce will be final when the judge signs your Judgment of Divorce, usually from 3 to 5 months after all of the divorce papers are submitted to the Clerk of the Court.
If you and your spouse are unable to reach a settlement, the amount of time it takes to get your case ready for trial can range, generally, from several months to a year, or longer, depending on the complexity of the issues involved, the amount of pendente lite motion practice that takes place, and whether you and your spouse comply with demands for document disclosure and pre-trial depositions.
Of course, your divorce can be settled at any time, and even a case where the parties remain opposed on fundamental issues (e.g., custody of the children) can be settled before trial where the parties remain open to compromise. Oftentimes spouses who were unable to settle their case in the beginning, are able to settle later during the litigation after preliminary issues have resolved, circumstances change, or their initial anger abates.
What if my spouse doesn’t respond to the Summons?
If your spouse doesn’t respond to the Summons in the time allowed, he/she is in default, which means he/she has waived the right to fight the divorce. An inquest may be held where you will testify about your grounds for divorce, and present evidence to support your requests for ownership and/or possession of property, custody of your children, child support, etc.
What can I do if my spouse has gotten a Judgment of Divorce against me by default?
You should contact our office immediately. You have a limited amount of time in which to ask the Court to vacate (or un-do) the divorce. There are no guarantees, but one thing is for sure – the longer you wait, the less likely it is that the Court will grant your request to vacate the default. Once the default judgment is vacated, the divorce action starts over again as if the default never happened.
What is a pendente lite motion to the Court?
A pendente lite motion is a request for the Court to enter an order granting temporary relief, that is, an order which is in effect during the time your divorce case makes its way through the legal system, until a final judgment is granted. Common requests for pendente lite relief are occupancy of the marital home, temporary child support, temporary maintenance, payment of carrying charges on a residence, continuation of medical insurance, child custody and visitation, and a restraint on selling or hiding assets. Financial pendente lite relief is usually retroactive to the date of the request. Please see Battle on the Homefront, an article by Clifford Petroske, for further information regarding pendente lite occupancy of the marital home.
What does Equitable Distribution mean?
Equitable Distribution is the manner in which the parties’ marital property is divided and debts allocated by the Court upon a divorce. Equitable Distribution is not necessarily equal distribution, and there are many complex factors involved.
What is marital property?
Generally, all assets acquired during the marriage are marital property. While marital property is distributed by the court, separate property is not. Separate property includes property owned prior to the marriage, property acquired after the commencement of an action for divorce or after the execution of a Separation Agreement, property acquired by gift or inheritance, and personal injury awards. Assets which may be subject to equitable distribution as marital property include real property, vehicles and other personal property, bank accounts, pensions and other retirement benefits, an interest in a business, and enhanced earning capacity (a license or degree earned during the marriage). For a more detailed discussion of separate vs. marital property, please refer to Separate (But Different) Property and The Marital Residence and Separate Property, articles by Clifford Petroske.
Can I get a divorce if I don’t know where my spouse lives?
If you are unsure of your spouse’s whereabouts, a search of public records will be conducted. A private investigator may be needed. Any information you can provide is useful, including last known address, date of birth, and social security number. If your spouse cannot be located after a diligent search has been conducted, or if we are for some other reason unable to personally serve him/her with the Summons, we will request that the Court direct an alternate method of service, such as publication in a newspaper. Regardless of whether your spouse is ever actually located, you can obtain a divorce, provided a diligent effort is made to locate him or her.
What are my options if I disagree with the Court’s decision after the trial?
Please refer to the Appeals FAQ's, or contact our office for further information.