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What will happen in Divorce Court?
May 6, 2018
This is a very generalized statement for educational purposes only as to what a divorce looks like if the parties are contesting the divorce. This guideline set forth below under New York State Law is what you might expect to see but no guarantees are to be read into this article as litigation is hazardous for both parties and wrought with uncertainty. Also, variations will occur as each couple’s divorce is different from the next. However, the steps are pretty much the same. Any divorce, is covered under the umbrella terms of a “Matrimonial Action”, that is, a divorce affects the marital status of the parties involved as well as the financial settlement of support and assets. Whichever spouse begins it is irrelevant. When an action is commenced an “Index Number” is assigned to the case for record-keeping purposes. Starting an action and “Purchasing the Index Number” are sometimes used interchangeably. We have already done this part.
After service of the Summons, and after settlement talks fail, the parties usually file a request for judicial intervention, or a motion, or both. The parties appear in court for some kind of OSC or motion for immediate or temporary relief. The relief requests may include a request for exclusive occupation of the parties’ home, payments for support, restraining orders, counsel fees etc. while these “Motions” may award only temporary relief, they are highly important to the outcome of the action. Courts like to continue patterns. If the “Motion” made by either party is necessary for some financial matter, then the parties will need to disclose (show the court) relevant financial documentation, including pay stubs, bills, bank information and / or recent tax returns. The Court has 60 days to rule on Motions. Sometimes it can take up to three to four months or more before they decide the motion, however, depending on the Judge and you never want to rush a judge or they might hold it against you.
During the first court appearance, the Court also holds a PRELIMINARY CONFERENCE. This first appearance is long as the court maps out a time line setting forth dates that the attorneys must follow to complete financial exchange and possible depositions. The parties’ attorneys and Court must all sign it. On this date the court also holds a conference with the attorney to narrow down the issues and try to solve them, and to encourage the parties to settle. The Court will impart how they see your case and how it should settle but you are not required to follow their suggestion.
We then go back to court every month or so as the court controls its calendar to ensure attorneys are making progress along the terms set forth in the preliminary conference Order. The Judicial Guidelines say this process should take 9 months max, but often it goes on beyond nine months This can go on for months to years depending on the complexity of the issues. In your case, though, depending on the Judge assigned, with no children I would say the range is 9 months to 1.5 years but do not hold me to it as I do not have a crystal ball. At any time during each court appearance the court will put enormous pressure on the parties to settle reasonably. Whoever caves in first and gives away the case at the demand of the other spouse usually loses on his position, so you need fortitude.
As stated above, the parties may choose to settle the action, at any stage, if it is at all possible for them to agree to the distribution of assets, property, and support matters, and any other outstanding issues. If such a resolution is possible at any time, the parties will sign an agreement known as a Stipulation of Settlement or Separation Agreement, which will dictate the terms of the parties’ separation. The terms of the agreement may be incorporated with the terms of any divorce granted and you no longer have to go to court, the lawyers do the rest. This can happen at any stage of the proceedings, whether in or out of court. Often life intercedes and one party or the other caves in and settles for a multitude of reasons.
If no settlement of the action occurs, or if wither party is unsatisfied with the financial documents produced and exchanged, the Court adjourns the case for two to three times more for the attorneys to exchange all the financial documentation they need from the other party. If dissatisfied the attorneys have the right to insist upon depositions or EBTs, which stands for Examinations Before Trial. During an EBT, each is asked to give testimony regarding the marriage, including any alleged grounds for the divorce, and the financial affairs within the marriage. The Defendant’s attorney asks the Plaintiff questions, and the Plaintiff’s attorney asks the Defendant questions. EBTs are recorded through a stenographer, who is present to transcribe a written record of everything that is said by each person in attendance.
Through motions, EBTs, and production of documentation regarding the marriage, each parties’ attorneys try to determine the manner in which the marital property ought to be awarded by the court, and the amount and duration of support, and they argue to the judge their respective positions. In NY, the marital property is divided pursuant through a process known as "Equitable Distribution", which divides the marital property based on a number of factors, including the parties’ current financial status, their health, and ability to be employed, among other items.
If after Depositions or during this process your action is not resolved through negotiations or settlement, you will go back and forth to the Court for what is called COMPLIANCE conferences. After a period of time the Judge loses patience and then the action moves into pre-trial court conferences and further negotiations before the assigned judge. This can go on for months to a year and a half, sometimes longer but only if the issues are complex. Again, no guarantees on time lines. If, once again, there is still no resolution to the parties’ disputes, then the case will proceed to a judicial trial, where you present your evidence and make your legal arguments wherein a judge or Referee will make a decision regarding any outstanding issues. Even at this stage, there is still opportunity for the parties to agree upon a settlement, which is “read into the record” before the court. The judge will then sign off on the terms of this agreement, which will make the parties bound to the terms of the divorce. Of course, the judge still retains the right to make any decisions regarding the divorce if no agreement is reached.
Every Divorce Case is Unique
Unfortunately, while this description may offer a simplified outline of a contested divorce proceeding, it cannot predict the course of your own divorce case. While some divorce actions are resolved in a period of a few months, others are not resolved for several years if the case involves complex issues of finance or custody. In general, the duration of any divorce action is dependent upon numerous factors, including the parties’ willingness to compromise, the financial assets of the parties, support, and the court’s ability to hear the action within a given timeframe.
Law Offices of Lisa Beth Older