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New York Divorce Procedures
The procedure of a New York divorce is an important but often overlooked element in understanding the divorce process. While people are free to enter into a marriage, a divorce may only be granted by a court, and navigating through the courts means the rules of the court must be followed. The rules are contained in the Civil Practice Laws and Regulations, more commonly known as the C.P.L.R. To a much lesser degree, there are some procedural rules unique to divorces which are contained in the Domestic Relations Law, abbreviated as the D.R.L..
Starting the Divorce
The proper name for a divorce is "An action for a divorce." Like all actions, a divorce action is commenced by the filing of a summons and complaint or a summons with notice. C.P.L.R. Sec. 304. When the summons is filed, a fee of $210 is charged and a unique index number assigned to the case. C.P.L.R. 306-a. All subsequent papers filed with the court must bear that number along with the caption. The spouse who files the divorce is called the plaintiff, and the non filing spouse is called the defendant. New York Divorce law requires that the defendant 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 C.P.L.R. Sec. 308 and D.R.L. Sec. 232.
Other domestic relations actions are an "Action for a separation" D.R.L. 200, "An action to declare the nullity of a void marriage" D.R.L. 140 to 146 and a special proceeding to dissolve a marriage on the ground of absence. D.R.L. 220 and 221.
The purpose of the pleadings is to give advance written notice to the opposing side so that they are aware of the allegations and what type of relief is being requested so that a defense can be prepared if so desired and appropriate. In order to bring an action for divorce in New York, the complaint must set forth one or more grounds listed in D.R.L. Sec. 170. In addition to the grounds, the complaint must also state what additional relief is being requested. Failure to request a specific relief in the complaint will preclude that party from seeking that relief at trial. It is possible to amend a complaint, 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.
The pleadings consist of either two or three documents.
The longest phase of the divorce usually occurs between the pleadings and the trial. It is possible that the discovery phase can start before the pleadings have been completed, and in some cases, motions will be filed along with the pleadings, or during the discovery phase. The discovery schedule will be set during the preliminary conference, although discovery can begin prior to this conference.
Motions are requests for a court order outside of the final disposition of the case which is made at the end of the trial. There are pre-trial motions, trial motions, and post judgment motions. Motions are usually written, but in rare instances, the court may allow oral motions.
Most motions are pre trial motions. The purpose of these motions are to request a court order compelling the other party to do something which cannot wait until after the trial is over. For example, compliance with discovery demands, temporary custody, temporary support, temporary counsel or expert fees are among the most common pre trial requests made.
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.
After the case is marked trial ready, 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.) 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 decision, either in writing or on the record, which will address all issues of the divorce. At this point, most of the divorce is over, but additional paperwork is still required. It is important to note that the parties are still married at this point.
Following this decision, a judgment of divorce must prepared and signed by the court. It is only when a judgment is signed that the parties are actually divorced. One side will prepare actual divorce papers, which mirror the exact terms of the decision. These papers consists of the "Judgment of Divorce," and the "Findings of Fact & Conclusions of Law." To insure the proposed judgment and findings match the decision, the party who prepares the proposed papers must serve a copy of them to the opposing attorney to allow him or her to review them and make sure they accurately reflect the decision. This process is known as "settling an order or judgment." Most courts when they issue a decision will also direct that a judgment be "settled on notice."
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 judgement and findings, and is available for a nominal fee ranging from $4.00 to $10.00 per copy.
In New York, divorce files are not a public record and are available only to the parties or their respective attorneys.
Many judgments require one or both parties to take various acts in the future. If one party fails to do so, one enforcement mechanism is to file a post-judgment motion.
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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