Law Office of
Jeffrey B.Peltz, P.C.
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Brooklyn, New York 11242
Telephone: (718) 625-0800
A contested divorce means that the parties do not agree to divorce or to the terms of the divorce. Since New York now has no-fault divorce, it is very likely that, if a party wants a divorce, he or she will get a divorce. Accordingly, divorce is now almost always contested because of a disagreement over the terms of the divorce. Such terms may include spousal support, which was formerly known as alimony; equitable distribution, which refers to the division of property and other assets; child custody; visitation and child support.
If one of the spouses has much less income than the other, the court may direct the spouse with the higher income to pay the legal fees and expert expenses of the spouse with less income.
The “typical” contested divorce will usually involve the following process:
The party who initiates the divorce action is known as the plaintiff. The plaintiff commences the divorce action by buying an index number from the county clerk for $210 and by filing a summons with notice. A divorce action may also be started by filing the summons and complaint with the county clerk’s office. A process server then serves the summons with notice or a summons and complaint upon the other spouse, who for the purposes of the divorce action is called the defendant.
The defendant has 20 days to respond if served within New York. If served outside of New York, the defendant has 30 days to respond. If the defendant does not respond within the applicable period, the plaintiff may request a divorce by default from the court. The Court will not place the matter on the calendar until a total of 40 days have passed since the defendant was served. If the divorce involves issues of custody, child support, spousal support or equitable distribution, such issues must be decided by a judge after a hearing.
In most cases, the defendant retains an attorney, who will provide the plaintiff’s attorney with a notice of appearance. It is also possible that the defendant will respond without retaining an attorney, which can be problematic, because the defendant will most likely not know what to do. This can delay the process. The judge assigned to the case will no doubt urge the defendant to retain an attorney. If the defendant’s income is low enough, the judge may assign an attorney at no cost to the defendant.
If served with a summons with notice, the defendant will request a copy of the complaint. If served with the summons and complaint, the defendant must submit his or her answer. The defendant may also send the plaintiff the defendant’s counterclaims and demands for spousal support, equitable distribution, custody, child support and visitation.
A Request for Judicial Intervention, which is also known as an RJI, must be filed next. The cost of the RJI is $95.
If a decision regarding an issue such as custody, support or exclusive possession of the marital residence requires urgent attention, either party may request immediate relief from a judge. The judge’s decision will be temporary pending the final resolution of the divorce.
The parties are required to complete and exchange financial net worth statements. The financial net worth statement is extensive and must include all of each party’s assets and liabilities.
In New York, the first hearing before the judge is known as the preliminary conference, also known as the PC. At the preliminary conference, the attorneys for the parties will discuss with the judge the issues of the divorce, which may include equitable distribution, spousal support, custody, child support or visitation. If the parties agree about any of these issues, each agreed upon issue will be noted as resolved. The divorce will thereafter focus on the issues about which the parties cannot agree.
If child custody is disputed, the judge at the preliminary conference may appoint an attorney to represent each child. The judge may also order that a forensic mental health professional interview the parties. The judge may rely upon the report of the forensic mental health professional to make his or her decision regarding custody and visitation.
At the preliminary conference, if the equitable distribution of assets is contested, the judge may appoint one or more experts to appraise the assets. Assets that commonly need to be appraised include real estate, a business, pensions and jewelry. At the preliminary conference, the judge will direct that discovery, which is the exchange of financial and other information, take place between the parties and will set deadlines.
Depending upon the judge and the facts of the case, settlement discussions may take place at the preliminary conference. Even if a final settlement is not reached during the preliminary conference, the discussions may be useful toward resolving the differences between the parties.
At the end of the preliminary conference, the judge will issue a PC Order, which will include identification of the issues in dispute and a timetable for the exchange of financial information.
If the divorce has not already been settled, the next hearing in court is known as the compliance conference. As the name implies, the purpose of this hearing is for the judge to determine whether the parties have complied with the PC order. In addition, the judge will often discuss settlement with the attorneys. A settlement will often occur at this point with the urging of the judge.
The next step in a contested divorce in New York is the completion of discovery, the payment of the note of issue, which costs $30, and the scheduling of the trial.
It is common for a pretrial conference to be held to see if any lingering issues can be resolved with the court’s assistance.
At trial, the plaintiff will present his or her case first. The plaintiff will present witnesses and submit evidence in support of his or her position. The defense has the opportunity to cross examine each of the plaintiff's witnesses. At the conclusion of the plaintiff's case, the defendant will present evidence in support of his or her defense and of any counter-claim that the defendant has asserted. The plaintiff will then have the opportunity to respond to the counter-claim, if the defendant asserted one. Based upon the arguments, expert reports and the evidence, the judge will then make his or her decision.
In many cases, a settlement is reached before the matter actually gets to trial. Once a settlement is reached, the attorneys draw up concluding papers, which they submit to the judge for approval. Depending on how far the matter has progressed, all parties may be required to appear before the judge for an inquest to finalize the divorce.
Once the divorce is resolved through settlement or trial, the divorce papers are submitted for the judge’s approval. When the judge signs the judgment of divorce, it is entered at the county clerk, at which point the parties are officially divorced. They may then obtain certified copies of the judgment of divorce.
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