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The Matrimonial Action - An Introductory Tour
When the parties cannot agree to settle their marital dispute, the next step is for the court to resolve the issues. This is known as a contested action. Each case necessarily differs on its facts but the following outline illustrates the process.
Commencement of the Action
New York requires personal service of a Summons, a legal document whereby the plaintiff informs the defendant of the type of action being brought (Divorce or Separation or Annulment). The defendant then usually retains a lawyer who sends a Notice of Appearance to the plaintiff's attorney demanding to know the specifics of plaintiff's case, i.e., the Verified Complaint.
The plaintiff now serves the verified complaint. It sets forth the basis for each claim (cause of action) that plaintiff has against the defendant. The defendant responds by way of a Verified Answer which either admits or denies the allegations of the complaint. The defendant may also include a Counterclaim for divorce against plaintiff or affirmative defenses. If the defendant sets forth a counterclaim, the plaintiff must serve a Verified Reply or the counterclaim will be treated as undefended.
The Preliminary Conference
Each attorney can file a demand for a Preliminary Conference which asks the court to schedule discovery dates. The courts require that both parties and their attorneys attend this conference which is usually held with the judge or the judge's Law Secretary. At this conference, if custody is in dispute, the court may order a forensic psychologist or psychiatrist to interview the parents and the children, thereafter furnishing the court with a report. This report sets forth the expert's opinion as to what custodial and visitation arrangements would be in the best interests of the children. The court will also appoint a Law Guardian, an attorney who represents the children. The parties are required to pay for these professionals.
For the most part, discovery in matrimonial actions is confined to financial matters. The law views marriage as an economic partnership which must be dismantled by the conclusion of the divorce action. The analogy often used is a that of a corporation undergoing bankruptcy and its assets being distributed to creditors.
The length of the discovery process varies depending on the complexity of the parties' assets. The discovery phase typically takes at least three (3) months.
During the discovery phase, it is often necessary to retain experts to evaluate certain marital assets for the purpose of equitable distribution. These assets can include the marital residence, a business, pensions, or educational degrees.
During the action, it is very common for one or both parties to file an application for temporary (pendente lite) relief. This motion often seeks temporary maintenance or child support, temporary custody, exclusive occupancy of the marital residence, etc.
There are many other kinds of motions or applications that can be filed in an action; they are confined only by the facts of the particular case and the creative energies of the attorneys.
The Compliance Conference
At this conference the court will determine (1) whether any financial disclosure remains to be done, and (2) if the case can be settled. If the case is certified for trial, a Note of Issue is filed by the plaintiff and a trial date is set. Mindful of past horror stories where matrimonial cases dragged on interminably, the courts are increasingly inclined to hold attorneys and their clients to these scheduled trial dates.
Conclusion of the Case
Some cases are disposed of by Trial. Trials are very expensive undertakings but sometimes necessary when the parties simply cannot agree. More commonly, matters are resolved by a written Agreement (stipulation) whereby the parties voluntarily agree upon all issues in writing. The terms and conditions of the Agreement may or may not be incorporated into a Judgment of Divorce.
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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