How does a typical divorce litigation proceed in New York?

Each case is unique, however, I am writing this blog entry to give people a broad outline of how a New York divorce litigation might proceed on Long Island, New York City or the surrounding areas based on what I know and have seen in my practice. A divorce case can be initiated by either filing a Summons with Notice or a Summons and Complaint. The Plaintiff then has 120 days, without obtaining an extension of that time from the court, to have the summons served upon the defendant. If the summons is personally served upon the Defendant in New York, the Defendant then has twenty days to “appear” in the action. In the situation where a Summons with Notice is served without a Complaint, the Defendant’s lawyer would usually serve a “Notice of Appearance and Demand for Complaint”.

After being served with the “Demand for the Complaint”, the Plaintiff’s lawyer would then have twenty days to serve the Complaint. Upon being served with the Complaint, the Defendant’s lawyer would have twenty days to interpose an Answer and any Counterclaims. The aforementioned time periods are imposed by statute. Extensions of time are routinely granted to each side upon consent. Before, after, and while all the aforementioned legal documents are being exchanged, the settlement negotiations can be ongoing between the parties and counsel. Negotiations may proceed by telephone calls, letters, or four way meetings (conferences with parties and their counsel) outside of court.

If a settlement can not be reached out of court, the only way for a divorce to be finalized is by “Judicial Intervention.” The attorney for either side might file what is called a “Pendente Lite” motion, to ask a court to order certain things while the case is pending. Typically, the types of things requested in this motion are: temporary orders of custody and parenting time; temporary child support; temporary maintenance; exclusive use and occupancy of the marital residence; payment of carrying charges of the residence; payment of certain costs and fees that might be necessary in the case such as appraisal costs or forensic accounting analyses; orders of protection; requests for lawyer fees and various other possible requests.

A Preliminary Conference is scheduled by the court soon after the filing of a Request for Judicial Intervention. At a preliminary conference: a schedule for the case is made which usually outlines a schedule of discovery, the need for appointment of an attorney for the child(ren) is considered; the need for forensic professionals to investigate and report back about custody and parenting times issues or financial matters is weighed; deadlines for the making of a “Pendente Lite” motion if one has not already been made can be ordered; certain issues in the case might be ordered as resolved such as if there is an agreement on the grounds for the divorce or an agreement on the amount of child support to be paid; and future court dates are contemplated.

While the case is getting ready for trial, the parties and their attorneys usually continue to talk to see if a resolution can be made. Ultimately, if there are issues that are still unresolved, a trial on the open issues needs to take place. The open issues may include (but not be limited to): the ground of the case (which is rare since New York now has no fault divorce); custody and parenting time; child support; maintenance; equitable distribution of marital assets/debt and attorney fees. Within these major categories there can be many subcategories of things that need to be decided.

At a trial, each side is entitled to present witnesses and evidence. The rules of evidence apply so it is important to contemplate how to present admissible evidence. It takes lawyers years of training and experience to gain the skills required to navigate the rules of evidence. The length of time that it takes for a case to be ready for trial can vary widely. It can be anywhere from six months, a year to some years to be ready for trial depending upon the Court, the lawyers, the parties, and the complexity of issues involved.

Because of the length of time and investment of money that expands with the more issues that are unresolved, it is usually preferable for spouses to come to agreements in their divorce. Unfortunately, for whatever reason, it is sometimes not possible to agree on items. That is why courts are in place to deal with divorces. Feel free to inquire about your rights and options in a divorce. It would be our pleasure to speak with you about it.

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