The filing of a Summons and Complaint commences the action for divorce.
Once a complaint is served upon a spouse you or your attorney must file and serve a Verified Answer. Thereafter, a reply or counterclaim may be made. Discovery, Depositions, Notices, and Authorizations for the release of records, pretrial conferences, settlement conferences, and other conferences must be had before a trial on the issues can be considered.
Next is the Order to Show Cause for pendent lite relief, which is an application for an order that seeks immediate relief such as child support, injunctions against the encumbrances or sale or transfer of the marital residence, and a possible award of counsel fees or expert fees and additionally an award of carrying costs on the marital residence. This application is made by your attorney if you are the spouse that is in need of immediate financial relief and said application must be accompanied by a net worth statement which is sworn to by you and certified by your attorney.
Divorce Pleadings: The cases which can not be settled with a telephone call can often times be settled after some very initial pleadings have been filed. Pleadings are a system of rules and regulations used by layers to present the issues to the court. It usually entails written and sworn statements which are presented alternately between the parties, each which responds to that party's contentions. In pleading practice, the courts hope to narrow down the issues upon which a trial may be had. Through the process, it appears that there are certain issues which both parties can agree upon.
All documents brought to the attention of the Court are generally sworn to by the submitting party. Pleadings are subject to proof at trial or may be proven by consent. In other words, if you allege (or plead) cruel treatment in your complaint, then in order for the judge to execute a judgment of divorce on this ground you will need to either get your spouse to consent to the grounds, or you will need to prove the grounds through specific testimony and proof alleging that which you put into your verified complaint.
Proof often takes the form of testimony, but sometimes it is done through exhibits. For instance, a complaint for cruel and inhuman treatment complaint may be proven through pictures of an injury inflicted upon you by your spouse, taken at the hospital or police station, or through the medical records of your treating physician or local hospital.
Thus, there are a number of cases which need to be brought further into the litigation process before securing the maximum settlement value under the law. How far along into the litigation process your case will go is largely dependant upon your preparation or lack thereof. Cases typically involving complicated custody or property distribution issues will require additional attention from both you and your attorney.
Research is an important part of any divorce action because the Courts will follow the law your attorney provides which backs up your version of the facts of your divorce case.
In the garden variety divorce, the proceedings are often times commenced with a summons and complaint. As such, if you are served with a summons and/or complaint, you should immediately seek the advice of counsel to determine what you need to do or should do next. Every State has there own time limits for filing answers to your spouse's pleadings and discovery efforts. You must not run the risk of running a deadline as this could cause a devastating outcome in your case.
Marriages that involve children or large amounts of property or assets could very well end up in a trial. A skilled and well-seasoned attorney will not go to trial without adequate preparation. Preparation entails several in depth conferences between you and your attorney and between your attorney and witnesses. It also involves an investigation into the financial and other issues of your marriage. The tools attorneys use to "discover" what assets are to be divided between the parties are various documents and procedures typically referred to as the “discovery" or “disclosure” phase of your case.
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Warning: The information contained herein is not intended to substitute for legal advice from your own retained lawyer in new york state. This article is merely informational in nature, and is based upon one attorney’s knowledge of the practice of family law, matrimonial law, domestic violence, child custody, child support and orders of protection.
Retain counsel before you do anything to affect your marital status and follow the advice of the lawyer you retain, not what is written herein.