Beginning the Divorce Process
The Residency Requirement
In order to file for divorce in New York State, the parties must meet one or more of the following residency requirements:
- The parties were married in New York AND either party is a resident for at least one continuous year;
- The parties have at some point lived together in New York as a married couple AND either party is a resident for at least one continuous year;
- The grounds for divorce occurred in New York AND either party is a resident for at least one continuous year;
- The grounds for divorce occurred in New York AND both parties are currently residents; or
- Either party has been a resident for at least two continuous years immediately preceding the commencement of the action for divorce.
Read below to learn more about beginning the divorce process or call to speak to one of our experienced divorce attorneys for a free and confidential consultation. Our firm serves Nassau and Suffolk counties on Long Island with the knowledge, experience and trust to give you the best advice.
Understanding the Summons with Notice
An action for divorce is usually started with the filing of a special form of summons called a Summons with Notice. The attorney for the plaintiff files this document with the County Clerk before a copy of it is served on the defendant. The mere act of filing the Summons with Notice is what makes the filing party the plaintiff, and gives the case its caption, along with an index number that will be affixed to all legal papers generated in the case thereafter. The other party is called the defendant. The date that the Summons is filed is the “date of commencement” of the case, which is generally considered the cut-off date for the accumulation of marital property.
There are numerous features of the Summons with Notice that should be understood. First, the Summons gives notice of the grounds for divorce that will be the basis of the Court’s power to dissolve the marriage. It also provides an addendum of relief that the plaintiff will be asking the Court to grant in the final judgment, in addition to the dissolution of the marriage. This is typically stated in a very general fashion, such as “equitable distribution, maintenance, custody of the children” etc., to avoid being committed to any particular disposition early in the case before there has been disclosure and an opportunity to provide a detailed statement of disposition to the court.
In recent years there have been some additions to the form of the divorce Summons that are designed to apprize the parties of certain important legal obligations. After the addendum, the Summons contains a recital of the Automatic Orders. These are standing restraining orders of the Court that restrict the transfer or other disposition of assets, and are binding upon the plaintiff at the moment the Summons is filed in the Clerk’s office, and upon the defendant once he or she is served.
The Automatic Orders should be read carefully by any person who is contemplating divorce, and certainly no later than the commencement of the divorce action. They are as follows:
- ORDERED: Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.
- ORDERED: Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court ; except that any party who is already in pay status may continue to receive such payments thereunder.
- ORDERED: Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbering any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with this action.
- ORDERED: Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.
- ORDERED: Neither party shall change the beneficiaries of any existing life insurance policies and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
Failure to follow the Automatic Orders can result in a party being found in contempt of court, which can result in fine and/or imprisonment. As such, it is important to consult with a divorce attorney about property issues before the divorce action is started. It would be a mistake to sell a car or buy a boat after an action is started, unless written consent (signed and notarized) is obtained from the other spouse. Failing that, an application to the Court must be made for permission to do anything prohibited by the Automatic Orders.
Other additions to the Summons with Notice include notice that the dissolution of marriage will result in the loss of medical insurance coverage for the non-employee spouse, as well as an explanation of the maintenance guidelines that may be employed to determine the presumptively correct amount of maintenance to be awarded in the final judgment.
What To Do When You Are Served With a Divorce Summons
If you are served with a divorce Summons (either a Summons with Notice or a Summons and Verified Complaint), you have twenty (20) days to appear in the action (thirty days if you are served outside of the state). You are not expected to actually physically appear anywhere. Instead, if you are served with a Summons with Notice, you or your attorney will serve and file with the County Clerk a Notice of Appearance that announces your participation in the divorce action. It is good practice for the Notice of Appearance to include an addendum of relief that will set forth in general terms the relief that the defendant is seeking in the divorce action. If you are served with a Summons and Verified Complaint instead of a Summons with Notice you will need to serve and file a Verified Answer that makes appropriate responses to the allegations of the plaintiff’s Verified Complaint.
Failure to respond in the appropriate manner will result in a default judgment being entered against you. This can have dire consequences, resulting in the loss of significant financial and custodial rights. It is therefore critically important that you contact a divorce attorney immediately upon being served with either a Summons with Notice or a Summons and Verified Complaint.
Necessary Financial Documents
There is no getting around the need for full disclosure in a divorce action. With the exception of custody and parenting issues, everything that needs to be resolved is financial and will require some paperwork to be properly divided or, in the case of separate property, to be retained by the party making a separate property claim.
The first step and sometimes the only step in disclosure is completing a form called a Statement of Net Worth (SNW) which is provided by the attorney to the client at the beginning of the case. The form is broken up into different sections for disclosing basic personal and family information, expenses, income, assets and debts, as well as any transfers of assets that have occurred within the past three years. It is designed to be a roadmap of the financial condition of each of the parties.
It is best to review the form with your attorney before signing. Once completed, it is signed under oath and can be used against the client if the entries are not accurate, truthful, or complete. For that reason, the attorneys at Petroske, Riezenman & Meyers, PC, review the client’s draft SNW with the client to be sure of its accuracy. In our experience, many other attorneys ignore this crucial step, and expose their clients to possible allegations of false reporting that can completely undermine a case. For example, a spouse who will need maintenance to be financially self-supporting must be careful that all of her/his expenses are carefully and consistently presented, since the amount of support received may depend on those expenses being reasonable and verifiable.
Once the Statement of Net Worth is completed, signed and notarized, it is filed with the court after a copy is served on the other spouse’s attorney. A copy of the parties’ most recent tax return and several recent paystubs are attached. In an uncontested divorce, the form is usually not filed with the court, but is simply sent to the opposing party or attorney.
For simple cases where the parties’ assets are limited and each party is fully employed and self-supporting, the exchange of Statements of Net Worth may be all the disclosure that is needed.
In cases where there are pensions, significant accounts and/or debts, or where there is a separate property claim, disclosure of actual documents can be important. It is also a good idea to be sure that a spouse has not depleted accounts or run up debt in advance of litigation, which only a review of statements can determine. For a multitude of reasons, it is standard practice to obtain statements of accounts and other financial documents going back at least a few years. Your attorney will advise you on what is necessary to produce.