Court Procedure in Divorce Cases
We hear a lot about the emotional aspects of divorce; feelings are not just a salient feature, but for many are the dominant feature of the process. But what, exactly, is the process? It may feel like a mess while it’s happening, but in procedural terms it’s actually pretty orderly.
In New York, the case (called an “action”) is commenced by giving legal papers named the Summons and Complaint to the other party, to let them know an action is pending against them and they must respond. This is called service of process. If you initiate the case, you are the Plaintiff and serve the other party; if the other party initiates the case, you are the Defendant and they serve you. The papers are also filed with the court, and the date of filing is called the “Commencement Date.”
The Commencement Date is an important date. Certain things change on that date:
- Items acquired after that are, not always but often, each party’s separate property rather than being part of the aggregate “marital estate.” This can be important because the marital estate is subject to equitable distribution between the parties, but separate property is not.
- Money earned by each party after the Commencement Date is each party’s separate property.
- The Commencement Date is the date of valuation for most marital assets.
- Future court orders, such as those determining spousal support and child support, may be retroactive to this date.
- From the Commencement Date, neither spouse may obligate the other monetarily.
No judge is assigned when the action is filed; that happens later.
Service of process does not mean you have to appear in court right away. Instead, at this stage both parties prepare statements of net worth and other information about the case. If a net worth statement is inconsistent with what the other party knows or thinks they know, the party whose net worth is being questioned may be asked to produce documents to demonstrate the accuracy of the statement.
Also at this stage there can be exchanges of information and maybe negotiations to resolve the case on terms satisfactory to both parties, rather than letting the case be decided by a judge. This type of negotiated resolution is called “settlement.” If settlement negotiations are undertaken and then break down, either party may file a Request for Judicial Intervention (“RJI”), at which time a judge will be assigned. You will have to appear in court within a month or so following the filing of the RJI.
Once at court, the parties complete and sign a Preliminary Conference Order, which sets dates for exchange of all financial information. The court will want to know which issues have been resolved and which still remain, such as child support, custody, retirement assets, marital home, etc. If children are involved, the children will be assigned an attorney.
During the weeks of implementation of the Conference Order, settlement negotiations may continue if the parties wish. If the case is not consensually settled, the court will schedule a trial, during which settlement negotiations may still continue. In fact, among cases that reach the trial stage, most are settled during trial.
The above is general and true in most cases, but there are still instances where a party commences an action for divorce and files the RJI at the same time, along with a motion for temporary relief, such as child support, attorneys fees, or spousal support. If this happens, the other party must respond and appear in court on the date specified in the motion papers.
When you file an action for divorce, you have 120 days to serve the other party. There are sometimes reasons to file the action and not immediately serve the Summons and Complaint. In this and other strategic aspects of your case, consultation with an experienced attorney can add real value in deciding how to proceed.