Divorce

New York Divorce

By J. Douglas Barics
Suffolk and Nassau County Divorce Lawyer

In 2010, New York became the final state in the nation to adopt no fault, doing away with the needless right to a jury trial on grounds. As one court aptly put it, if you need to win a jury trial to stay married, you don’t have much of a marriage.

No fault divorce is very different than an uncontested divorce; no fault simply means the right to contest the divorce no longer exists and the parties can move directly to the terms of the divorce.

A divorce itself begins with filing a summons with notice or summons and complaint in the Supreme Court. Normally, this is done through New York’s electronic filing system, NYSCEF, but parties who represent themselves can still use the older paper filing method.

• The divorce complaint must allege the following facts.
• The date and location of the marriage
• Whether there are any minor children of the marriage
• Whether the marriage was religious or civil
• The grounds for the divorce
• A list of all ancillary relief  requested in addition to dissolving the marriage.

The most common ancillary relief is the following:

• Custody & Parenting Time
• Child Support
• Maintenance
• Equitable Distribution of the Marital Property
• Counsel Fees
• Expert Fees
• Exclusive Occupancy of the Marital Home

This list is not exhaustive. Custody, child support and maintenance may be maintained as separate proceedings independent of a divorce.

Once the divorce complaint is filed, it will be assigned an index number. The summons with notice, or the summons and complaint, along with health care notice, automatic restraining order notice, and right to maintenance notice must be served. If the case is filed on NYSCEF, notification of the electronic filing must also be served.

At the initial court date, the court will hold a preliminary conference. This conference sets the timetable for the divorce itself. Mandatory exchange of information is spelled out, and if additional information is required, the dates to make these requests are set forth as well.

Any issues which the parties cannot resolve are noted for the trial should one be necessary.

The dates for responding to the complaint in writing is also scheduled. While the answer to the complaint is fairly straightforward, the failure to file one can have serious repercussions.

Following the preliminary conference, the longest and often most expensive phase of the divorce begins; the discovery phase.

Discovery is the term used to describe the exchange of information. Both sides must make mandatory disclosure, such as their statements of net worth, tax returns, paystubs and W-2 forms. Additional information can be requested if the circumstances warrant.

Different counties will have their own way of tracking the divorce proceedings. Nassau and Suffolk tend to be very similar in their procedure, with the case staying before one judge. Queens and Kings county will often shuffle the case to different judges as it progresses. Manhattan will keep the divorce in front of one judge, but the rules are different than Long Island courts.

Once all discovery is complete, a form called a Note of Issue will be filed, and the divorce will be placed on the trial ready calendar.

Before the trial itself, there is a pre-trial conference. At this conference, both sides must submit updated statements of net worth, a statement of proposed disposition, witnesses lists, and trial exhibit lists.

Many judges will require both trial notebooks and to have all proposed exhibits uploaded to a trial room on the NYSCEF system. This area is not available to the public. The plaintiff uses numbers, the defendant letters, and for any exhibits that is deemed a court exhibit, roman numerals.

Following the trial, the court will issue a written decision. If the trial was before a special referee, then a motion to confirm or reject the referee’s report must be made as well.

The final step is to prepare the judgment package. This is the set of documents that are submitted in conjunction with the judgment. It is the judgment that officially dissolves the marriage. In addition, the provisions of the judgment must match any agreement between the parties or the trial decision.

When there are retirement accounts, a separate order must be submitted as well, the QDRO. This is an order from the court which allows tax deferred retirement accounts to be transferred from one spouse to another as part of a divorce, without any tax implications.

Following the judgment, a notice of entry is filed. This is the notation to the county clerk that the finalized judgment has been signed. It also starts the 30 day time to take an appeal from the judgment. This time cannot be extended.

For over 25 years, Long Island clients have been represented by J. Douglas Barics in Suffolk and Nassau counties. Many of our clients are referred to use by other satisfied clients covering all of Long Island.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any matrimonial action. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.