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Chronology of a Matrimonial Action
The following is a general outline of the procedure which a matrimonial action usually follows including how a divorce or separation is procured and equitable distribution effectuated. It has been our experience that although matrimonial actions generally follow the same process, no two are exactly the same. Therefore, the following outline may not be followed chronologically and in fact certain stages may even be deleted. However, please review this document so that you better understand the stages that your matter may follow. Again, at any time during representation of you one or more of the stages that follow may become more important and deserving of more attention.
Commencement of the Action
A matrimonial action is commenced by the personal service of a Summons With Notice which is simply a one or two legal document by which one spouse (Plaintiff) informs the other (Defendant) of the type of action which they intend to prosecute and the relief which they seek. The party personally served with such Summons usually retains an attorney who thereafter sends a Notice of Appearance to Plaintiff's attorney by which he informs Plaintiff's attorney that he is representing Defendant and further demands a Verified Complaint as hereafter explained.
Pleadings are detailed papers verified by the parties and exchanged between their attorneys by which a party alleges, with particularity, his or her grounds for divorce or his defenses thereto.
The Verified Complaint is the pleading by which the Plaintiff alleges the nature and circumstances of the Defendant's misconduct including the date, time and place of each act complained of. In response to the Verified Complaint, the Defendant often serves a Verified Answer which either admits or denies the allegations contained in the Verified Complaint and either sets forth defenses to the Plaintiff's action or Counterclaims for divorce or both. In response to Counterclaims a Plaintiff serves a Verified Reply by which Plaintiff admits or denies the allegations contained in Defendant's Counterclaim. That is, a Verified Reply is similar to a Verified Answer.
A Verified Complaint is sometimes served with the Summons thereby consolidating the first two steps of this outline.
Financial disclosure is mandatory in all matrimonial actions without a showing of special circumstances.
The first step in the financial disclosure process consists of the exchange of the parties' sworn Statement of Net Worth which occurs approximately twenty (20) days after the service of Pleadings. As you will recall, the Statement(s) of Net Worth is a form by which the Court and the other party learns of your income, expenses, assets and liabilities of whatsoever kind and wherever situated. The Statement of Net Worth must be accompanied by a current and representative paycheck stub(s) and your most recently filed state and federal income tax returns.
Beyond the Statement of Net Worth, financial disclosure may also include the following, to wit:
Financial discovery may involve one or more of the foregoing and may continue for a few weeks or several months depending upon the complexity of the assets at issue and the cooperation or lack of it on the part of your spouse and his or her attorney.
Either after or simultaneously with disclosure, there may be a need to appraise or evaluate certain marital assets so that they may be equitably distributed. If real property is not going to be sold, it will usually have to be appraised. Likewise, a family owned business will need to be evaluated by an accountant or business evaluator. There may also be a need to have a pension evaluated by an actuary.
The need for retaining any type of expert depends upon the nature and complexity of your particular case and of course, the need to consult an expert, whether it be a real estate appraiser or an accountant to evaluate a business, will be discussed with you. Note Well! These experts commonly require retainers which are to be paid by you in addition to legal fees and customary costs and disbursements.
After the action has been commenced, i.e. the Summons with Notice has been personally served, there may be a need to make an application to the Court on your behalf or respond to an application made on behalf of your spouse by his or her attorney. An application is a request for an Order of the Court granting certain relief during the pendency of the matrimonial action, often called pendente lite relief. Such application(s) or request(s) are made by either a Notice of Motion or by an Order to Show Cause, which is similar to a Notice of Motion but which is signed by a Judge and may order certain relief pending the return date of the motion i.e. the date on which is argued.
There are a variety of applications in matrimonial actions, some of the more common include temporary maintenance or child support, temporary custody of or visitation with the children, exclusive occupancy of the marital residence, etc. Other types of motions include procedural aspects of the case such as motions to compel financial disclosure or for penalties for wilfully failing to disclose financial information.
Your appearance on the return date of the argument of the application is rarely necessary in the eyes of the Court, but I feel it is important to have the party present so that the Court knows not only that you are interested in the result, but also so that the Court understands that its Order will truly affect some real person. Furthermore, by attending the argument of the application you will have the opportunity to personally view what occurs during your matrimonial matter.
Throughout your matter there may be attempts by either side to amicably resolve or settle your case before it goes to trial. Settlement negotiations may take a variety of forms including telephone calls or letters between attorneys, conferences between attorneys, conferences in the Judge's Chambers at what may be known as Preliminary Conference or a Pre-Trial Conference as later discussed, etc. Of course, the terms, conditions and ramifications of any settlement will be fully discussed and explained to you prior to entering into such settlement negotiations on concluding a settlement. As your attorney I am your agent and, therefore, cannot act without your authority. I will provide you with advice and recommendations, but will expect you to make the final decision regarding any settlement offer. More often than not, you will be placed in a position of having to make a decision, sometimes in a very short amount of time, which may possibly involve concessions on the one hand in order to gain something on the other hand, but will almost always involve something which will have an impact on you or your children for years to come. Therefore, it is my advice that you be prepared to make such decisions by being knowledgeable about your financial circumstances and what aspect or aspects of your case are most important to you.
The Preliminary Conference
The preliminary conference is held at the court and you will be required to appear at the conference. The purpose of the conference is to set forth the issues of the case and a schedule for the exchange of financial information. The conference is usually held with the Judge's law assistant, or a court attorney. A date will also be set for a compliance conference.
The Compliance Conference
At this conference the Judge's law assistant will usually meet with the attorney and ask if there are any problems with obtaining financial disclosure. The court will inquire as to what is left to be done to settle the matter or to get the case ready for trial. Dates will be set to monitor the remainder of the discovery process. Once discovery is complete dates will be set to file a Note of Issue and for a Pre-Trial Conference.
Note of Issue and Pre-Trial Conference
Subsequent to the completion of the financial disclosure and the necessary appraisals or evaluations of all marital and possibly separate assets, a Note of Issue and Certificate of Readiness is filed with the Court by which the Court is notified that both parties are "ready" for trial.
In an effort to avoid a lengthy and expensive trial, the Judge may schedule a Pre-Trial Conference which is a conference held in the Judge's Chambers at which both attorneys appear before the Judge. In most cases, you and your spouse will be required to be available during such Pre-Trial Conference, but you will not be allowed to enter the Judge's Chambers. Instead, you will wait in a comfortable area in the main part of the Courthouse while the Pre-Trial Conference is conducted. During the Pre-Trial Conference, each attorney will advocate the position of their respective client and the Judge will thereafter offer his input by telling the lawyers what he thinks might be reasonable under all of the facts and circumstances of the case. Thereafter, the attorneys will go out to the waiting area and discuss the Judge's recommendations with their respective client so as to obtain the proper authority to settle the case.
The Pre-Trial Conference may take one-half hour or all day, again depending upon a variety of circumstances including the complexity of your matrimonial matter, the reasonableness or lack of it on the part of the other party, the Judge's schedule on that particular day, etc.
If your matrimonial matter is not settled during or after the Pre-Trial Conference, the Judge may schedule another Pre-Trial Conference if he believes the case is close to settlement, but most often will schedule the matter for trial. If your case is scheduled for trial, it does not mean that settlement negotiations must cease. Your case may be settled prior to the date of trial, at the time of trial, or even after the trial commences. However, once your matter is scheduled for trial, I will continue to prepare your case as if it will be tried to completion. While I may always hope for the best and that your matter will be settled without a trial, I must always be prepared for trial in the event your matter does not settle.
Final Disposition of Your Matrimonial Matter
Matrimonial matters, as other civil actions, are disposed of by one of the following, to wit:
New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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