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Articles: Divorce and Matrimonial Law

The Procedure of a Divorce in New York:
Charting the Procedural Waters in a Matrimonial Action

By J. Douglas Barics
Updated October 2019

The procedure of a New York divorce is the road map each case follows. Its an an element that is all too often overlooked, often needlessly so, as having a working knowledge of what to expect makes it much easier to fit the other pieces of a matrimonial action together.

In New York, the Supreme Court is the only court which has the authority to grant a divorce. Despite its name, New York Supreme Court is the lowest level trial court; each of New York’s 62 counties has one Supreme Court. Since each Supreme Court has multiple justices, there are literally hundreds of Supreme Court justices in New York.

Every type of matrimonial action is a case like any other. In broad terms, the same rules which apply to a breach of contract cause  and a personal injury case also apply to matrimonial cases, subject to certain exceptions.

1. The Rules of Procedure for New York Divorces

The rules of procedure are found in five sources:

  • The Civil Practice Laws and Rules (The CPLR)
  • The Domestic Relations Law (The DRL)
  • The New York Code of Rules and Regulations (NYCRR)
  • Administrative Orders
  • Judge Specific Rules

 a. The Civil Practice Laws and Rules (The CPLR)

The CPLR governs the legal procedure in all Court proceedings. It was enacted in 1962, and replaced the antiquated Civil Practice Act of 1921. The old CPA was often referred to as "A Brobdingnagian conglomeration of heterogeneous rules of law and practice" full of absurd procedural oddities.

Since 1962, the CPLR is the statutory authority on the procedure of all court actions, and cover aspects such as

  • How an action is commenced
  • How service of a summons must be made
  • The form of pleadings
  • Motion practice
  • Discovery
  • Judgments
  • Appellate Practice

b. The Domestic Relations Law (The DRL)

The DRL is the statutory basis that contains procedural rules, defines the various matrimonial cases and what is needed to bring them, and the relief that can be obtained in a matrimonial action. The Domestic Relations Law specifies the grounds for divorce (DRL 170), the grounds for an annulment (DRL 140), and the grounds for a separation (DRL 200). It authorizes the Court to award custody, parenting time, child support, (DRL 240) spousal maintenance and to divide marital property (DRL 236 B).

In addition, the DRL also mandates certain procedural requirements for matrimonial actions not found in the CPLR. For example, the Summons and service of process must meet the additional requirements of DRL 232 in addition to CPLR 308.

It is the DRL itself which defines what a matrimonial action is. Section 236 Part B defines the term “Matrimonial Action” as any case which seeks a divorce, an annulment, a declaration of a void marriage, a separation, or a special proceeding for equitable distribution following a foreign divorce.

c. The New York Code of Rules and Regulations (22 NYCRR 1400, 22 NYCRR 202 and 202.16)

The NYCRR are additional rules that apply to various courts. 22 NYCRR 202 applies to all trial courts and 22 NYCRR 202.16, 202.16-a and 202.16-b are specifically for matrimonial actions. These rules govern mandatory financial disclosure, requirements for pendente lite motions. 22 NYCRR 1400 governs retainer agreements and fees in all matrimonial cases. These rules include:

  • Mandatory use of the Statement of Client's Rights and Responsibilities
  • Mandatory provisions required in every matrimonial retainer agreement
  • The filing of retainer agreements with the Court
  • The filing of the Request for Judicial Intervention
  • Mandatory Disclosure
  • The Preliminary Conference
  • Statement of Proposed Disposition
  • Pendente Lite Motions

d. Administrative Orders

Administrative orders and orders from the appellate division both fall into this category. Specific forms, mandatory language, are determined by administrative orders.

e. Judge Specific Rules

Each justice may have his or her own specific rules. These rules are largely ministerial, and cover such matters such as adjournments, having a set day of the week for motions, additional rules involving motions, trial requirements, or even customized forms.

Example:

A non monied spouse wants to make a motion for pendente lite relief. That spouse must file a divorce action pursuant to the CPLR and DRL, make a motion that meets the requirements of the CPLR, DRL, 22 NYCRR 202.16, and include any required forms or language mandated by any administrative order. Upon filing, the case and motion is assigned to a judge who hears motions on Tuesdays, Wednesdays or Thursdays, and requires oral argument and for both parties to be present.

2. Commencing a Matrimonial Action

a. The Summons with Notice or the Summons and Complaint

All actions, including matrimonial actions are commenced by the filing of a summons and complaint or a summons with notice pursuant to CPLR 304. But see below for additional papers that must be filed as well.

Pursuant to DRL 232, the summons in all matrimonial actions must include a special notice stating it is one of the following matrimonial actions:

  • “Action for a divorce”
  • “Action to annul a marriage”
  • ”Action for a separation”
  • “Action to declare the nullity of a void marriage”

DRL 232 also requires that all requested ancillary relief be listed.

When the commencing papers are filed, a fee of $210 is charged and a unique index number is assigned to the case pursuant to CPLR 306-a. All subsequent papers filed with the court must bear that number along with the caption. The spouse who files the divorce is the plaintiff, and the non filing spouse is the defendant.

The defendant must be personally served with the divorce papers, unless the court grants some other means of service. Note that there are special requirements for service of process in a divorce action. See CPLR 308 and DRL 232.

b. The Automatic Restraining Orders

Whenever a matrimonial action as defined by DRL 236 B (2) is commenced, automatic restraining orders apply under DRL 236 B (2)(b) and 22 NYCRR 202.16-a. These orders apply to the Plaintiff upon filing and the Defendant upon service. A notice of these orders must be attached to the commencement papers filed with the clerk.

These prevent both parties from transferring or spending down assets except for customary and usual household expenses and for attorney fees.

c. DRL 255 Notice

In order for the Court to grant a divorce, DRL 255 requires that both parties be given notice that upon the judgment of divorce, they will not be eligible to be covered on their spouse’s health insurance.

No default can be taken unless the defaulting party was given the DRL 255 Notice

Therefore, for all matrimonial summons, notice is given to satisfy DRL 255

d. Notice of Guideline Maintenance

DRL 236 B (5-a)(g)(3) and DRL 236 B (6)(g) prohibits the court from issuing a maintenance order unless any unrepresented party is informed of the guideline amounts. The format of this notice is set by administrative order. It is not required to be served with the summons but it is best practice to do so and is usually included with the commencing papers.

3. Service of the Divorce Summons with Notice etc.

CPLR 308 provides how Service is made in all actions. Additional requirements for service of process is found in DRL 232.

4. The Pleadings

Pleadings are governed by CPLR 3001 to 3045, and are designed to give advance written notice to the opposing side as to what is being sought and proven at trial. This advance notice is to allow each side to prepare a defense and conduct discovery with this information at hand. For divorce actions, the complaint must set forth one or more of the grounds listed in Domestic Relations Law 170. In addition, the complaint must also state what additional relief is being requested. Failure to request a specific divorce ground or ancillary relief in the complaint will almost always preclude that party from seeking that relief at trial. It is possible to amend a complaint, but delay in doing so may result in the amended pleading being rejected. Poorly drafted pleadings can also result in the divorce being dismissed, although this tends to be rare, as CPLR 3026 provides that pleadings are to be liberally construed and defects ignored if there is no prejudice. Matrimonial pleadings must also comply with 3016 which requires that marital misconduct be specified in the pleadings.

With the addition of no fault grounds under DRL 170(7), many of the issues involving properly plead grounds have been eliminated.

The pleadings consist of either two or three documents listed in CPLR 3011, as follows:

a. The Verified Complaint

The verified complaint, which is prepared and filed by the plaintiff, must allege one or more grounds for the divorce (DRL Section 170), followed by any ancillary (secondary) relief. Some of the most common ancillary relief is custody and parenting time under DRL 240,  child support under DRL 240(1-b), post divorce maintenance under DRL 236B(6), equitable distribution under DRL 236B(5), an order of protection pursuant to DRL 240 and DRL 252, exclusive occupancy under DRL 234, attorney fees, expert fees, both authorized under DRL 237 or any other appropriate relief as circumstances require. Each paragraph in the complaint must be numbered sequentially pursuant to CPLR 3014. In addition, DRL 211 requires that matrimonial pleadings be verified pursuant to CPLR 3020.

b. The Verified Answer

The verified answer is the defendant's response to the verified complaint. For each numbered paragraph in the complaint, the answer will either (a) admit the allegation, (b) deny the allegation, or (c) state that the defendant lacks knowledge to form a belief as to the allegation. There is no requirement that the answer respond to the ancillary relief.

c. Affirmative Defenses

In addition, the answer may contain any affirmative defenses. CPLR 3018.

An affirmative defense is a defense which if proven, will prevent the plaintiff from prevailing on a given issue which the plaintiff would have otherwise prevailed.

Examples:

  • Statute of Limitations
  • Res Judicata
  • Affirmative Defenses to Adultery under DRL 171

Failure to plead an affirmative defense will prohibit the use of that defense at trial.

d. Counter Claims

A counter claim is a cause of action asserted by the defendant. Traditionally, a counter claim would be a claim for a divorce where the defendant alleged the plaintiff did some wrongdoing. That still applies today, and a counter claim under DRL 170(7) is also permissible.

e. The Verified Reply

Should the defendant file a verified counterclaim, the plaintiff is entitled to file a verified reply. This reply is nothing more than an answer to the counterclaim, and like an answer, may contain affirmative defenses. If no counterclaim is filed, the plaintiff is not permitted to file a reply.

5. Discovery

Discovery is governed by Article 31 of the CPLR, and is often the longest phase of the divorce. Discovery is the term used to describe how each side obtains the information they will need to proceed with the case. Usually, discovery occurs after the pleadings have been filed, but it can start before the complaint is served. A discovery schedule will be set during the preliminary conference.

a. The Preliminary Conference

The preliminary conference is held early in the divorce, and is a conference with the court to set a timeline for the case, identify which issues if any can be settled early on, to set up any preliminary orders, and to deal with any other preliminary issues. Preliminary conferences are governed by 22 NYCRR 202. Many preliminary orders are made on consent of both parties, covering such matters as scheduling dates for discovery. Any pendente lite requests, such as child support, maintenance, or other day to day expenses can be addressed as well. Any preliminary issue which cannot be resolved on consent may be dealt with in a pendente lite motion. Regardless if the parties consent or not, the court will issue a Preliminary Conference Order setting dates for the dates for the exchange of the following information.

  • Sworn Statement of Net Worth
  • Notice for Discovery and Inspection
  • Interrogatories
  • Depositions
  • Appraisal of pensions
  • Appraisal of real estate
  • Appraisal of business
  • Appraisal of any other asset of value

If there are children involved, the court will also determine whether the children need independent representation. If so, the court will appoint an attorney for the child to represent the children. The attorney for the child will be paid either by the state or by the parties, as determined by the court.

The date of the compliance conference is also set during the preliminary conference. Some courts will set a tentative trial date during the preliminary conference as well.

b. The Compliance Conference

The compliance conference is another conference to ensure that both sides have all the necessary information necessary to go to trial. At the compliance conference, each side will either agree that discovery is complete, or request additional time to complete discovery. Depending on why discovery is not complete, the court has the option whether or not to grant this request.

Once the court determines there is not outstanding discovery, it will direct the plaintiff to file a note of issue and a certificate of readiness, which states the case ready for trial. Shortly thereafter, the court will set a trial date.

6. Pendente Lite Motions and Other Pre Trial Motions

Motions are requests for a court order outside of the final disposition of the case, which simply means before, during or after the final judgment. Motions are usually written, but in some instances, the court may allow oral motions for relatively minor issues.

The purpose of most pre trial motions is to request an order for something that cannot wait until the conclusion of trial. One of the most common pre trial motions are pendent lite motions, which literally means "pending the trial. These motions may seek pendente lite custody, pendente lite child support, temporary maintenance under DRL 236 B(5-a), pendente lite attorney fees, or expert fees, pursuant to DRL 237 temporary exclusive occupancy of the marital home, or any other reasonable request.

Other motions will depend on the complexity of the matter. Motions to dismiss an action based on failure to meet any of the residency requirements of DRL 230 may wind up dismissing a case early on. Either a motion to dismiss under CPLR 3211 or a motion for summary judgment under CPLR 3212 may be used, depending where the case is procedurally. Summary judgment motions are also common when a marital agreement is involved. Often one side seeks to enforce it, while the other side seeks to have it set aside. Either side may request a judgment in his our her favor in advance of trial if they believe their evidence is so overwhelming that no trial is necessary. Complex matrimonial litigation may also involve other causes of actions outside of a dissolution of the marriage. One of the more common causes of action that often piggyback onto a divorce action is one for a constructive trust. In these cases, motions to dismiss under CPLR 3211, for summary judgment CPLR 3212, or to amend pleadings under CPLR 3025 may be necessary.

Temporary restraining orders to prevent the dissipation of marital assets requires a motion. These motions can result in restraining orders or the appointment of a temporary receiver under CPLR 6401 to preserve marital assets while the case is pending prior to judgment. For post judgment enforcement motions, a motion may also seek the appointment of a receiver under CPLR 5228 to sell property as directed by the final judgment.

Discovery motions are those which involve one side failing to comply with financial disclosure. Penalties can range from the payment of attorney fees which were expended to secure the information, an order directing the requesting information to be produced, an order of preclusion which prevents the non complying party from testifying or offering evidence at trial, to striking the pleadings, which has the effect of putting the non complying party in default for the entire case.

Once all motion papers are submitted, the court will issue a decision granting or denying the relief requested. In some cases, the court may allow oral argument to supplement the written papers.

The order and decision resolving a motion made on notice may be appealed as of right pursuant to CPLR 5701(a)(2). Note that an ex parte order, such as a temporary restraining order, may not be appealed. It is subject to review by the appellate division under CPLR 5704, but if an appeal is sought, a motion to vacate the ex parte order must be made and any order arising from that motion may be appealed.

While non final orders may be appealed as of right under CPLR 5701(a)(2), the right to appeal them separately ends when the final judgment is issued. See Matter of Aho 39 N.Y.2d 241 (Court of Appeals 1976)

Any non final order which was not appealed separately can still be reviewed in an appeal from a final judgment as part of the appeal of that judgment, under CPLR 5501(a)(1) which provides for the scope of review for appeals.

7. The Trial

After the case is certified following the compliance conference, the court will set a trial date. Very often, a pre-trial conference is held to see if any issues can be settled or stipulated. (Example: to save time and expense, many times it is stipulated to use photocopies instead of original documents. Likewise, undisputed facts may be stipulated on as well.) During the trial, the plaintiff will present his or her case first by testifying, calling witnesses, and submitting any documentary evidence in support of their position. The defense will have the opportunity to cross examine the plaintiff's witnesses. At the conclusion of the plaintiff's case, the defendant presents his or her case, can testify, call witnesses and any documentary evidence.

At the conclusion of trial, the court will issue a written decision. At this point, most of the divorce is over, but additional paperwork is still required before it is finalized. It is important to note that the parties are still married at this point, and will remain so until the judgment of divorce is signed.

A trial decision may not be appealed directly as of right, as it is not considered an appealable order under CPLR 5512. It must first be reduced to a judgment, which may then be appealed.

Following this decision, a judgment of divorce must prepared by the lawyers, which is then submitted to the court for signing, along with a "Findings of Fact & Conclusions of Law." and other necessary forms, commonly referred to as the "judgment package." It is only when a judgment is signed by the Court that the parties are actually divorced. The proposed judgment submitted must mirror the exact terms of the decision or stipulation of settlement, either explicitly or by reference. To insure the proposed judgment and findings match the decision and conform to the facts, the proposed judgment and findings the judgment must be "settled." This term has nothing to do with a "settlement" but instead refers to the proposed judgment and findings being signed (i.e. "settled") by the court.

The procedure for settling an order or judgment is fairly straightforward. The party preparing the proposed judgment selects a settlement date which is the day the court will sign the judgment. The proposed judgment, along with the notice of the settlement date, is provided to the opposing side. If they agree that the terms of the judgment are correct to the extent that it conforms to the underlying stipulation or settlement, nothing needs to be done. But if the judgment contains wording or provisions that are not proper or in accordance with the decision or agreement, the opposing side may submit a proposed counter-judgment on or before the settlement date. The Court will then choose which proposed judgment to sign. Many judges require that if a counter-judgment is prepared, it must include a listing of the provisions which are different than the proposed judgment. This process is what is known as "settling on notice" and when most courts issue a decision, it will almost always include a provision that the judgment be settled on notice within a specific time frame.

The provision "settle on notice" is also very useful in determining whether an order is an appealable paper under CPLR 5512. A direction to settle an order of judgment shows the court's decision is just that, a decision and not an order of judgment. In the event an appeal from a decision is necessary due to extraordinary circumstances, an appeal may be taken under CPLR 5701(c) and CPLR 5515 by filing a motion for permission to appeal.

Once the final judgment is signed, the final step is for it to be "entered" with the county clerk and notice of this entry must be served on the opposing side. The court itself will forward the judgment to the clerk, but it is incumbent upon the parties to obtain a copy of the entry date stamp. This provides notice to the other side that the final papers now exist and are on file with the clerk's office. Service of the notice of entry also starts the time from which the right to appeal begins, which may be commenced by taking the appeal pursuant to CPLR 5515 within the time frame of 30 days as set forth in CPLR 5513. The time to take an appeal cannot be extended except under extremely limited circumstances, such as the death of the attorney.

All original documents are located in the County clerk's office. Either party to a divorce can review the file and obtain a copy of any document therein. A certified copy is a certification by the court that a photocopy is a true and accurate copy of the judgment and findings, and is available for a small fee which may very from county to county.

In New York, divorce files are not a public record and are automatically sealed for 99 years. During that time, they are available only to the parties, their respective attorneys, or by court order.

About J. Douglas Barics
J. Douglas Barics is a divorce lawyer located in Commack NY who regularly represents individuals in all divorce and family law matters.

For Additional Information
If you have any questions about this article, please contact J. Douglas Barics

Disclaimer: The article "The Procedure of a Divorce in New York" is provided as a free educational service and does not constitute legal advice.  For more information see the full disclaimer.