Divorce Process & Planning
The Divorce Process in New York State
The first question many people ask is how long the divorce process usually takes in New York State.
The answer is: "It depends." The duration of a New York divorce depends on whether it is a contested or an uncontested divorce.
In an uncontested divorce in New York, the ability of the parties to resolve their differences, agree upon any child-related issues, and all financial issues are the most important factors in shortening this divorce process. In New York State, the divorce process can take as little as a matter of weeks if the parties and their lawyers cooperate with one another to reach an agreement.
A contested divorce case in New York, one which involves court intervention to resolve, takes considerably longer – and obviously costs much more – than an uncontested divorce. A contested divorce case in New York begins when a spouse files a divorce action with the court. That spouse then has one hundred and twenty (120) days to serve the other spouse, who has twenty (20) to thirty (30) days to respond. A Request for Judicial Intervention is usually filed early on in such a case. According to the New York State Court System’s guidelines on standards and goals, a standard case should be resolved within 12 months from the filing of the Request for Judicial Intervention. Complex cases are allotted more time. During that time, the parties attend court conferences for the court to set, and monitor, discovery deadlines, issue orders regarding interim support, interim child custody and access, and agree to the use of experts that are deemed necessary. Most cases settle at some point along the way. In the event that the parties cannot reach an agreement, a trial date is scheduled.
The Divorce Summons in New York State
In New York state, you only have twenty (20) days to answer a divorce summons personally delivered to you under New York law, so you must immediately contact a divorce attorney to start working on your divorce case. Since it is unlikely that you already know which New York family law firm or divorce attorney you wish to retain, you will need to do your research and interview your top candidates quickly to get on board with a legal team that is a good match for you and your needs. Make sure to choose an experienced family law attorney who listens to you and answers your questions honestly, even if it isn’t the news you were hoping for, and who makes you feel respected and comfortable in their presence.
Divorce Process Pitfalls in New York State
The beginning stages of the divorce process in New York state can be the most important. It is critical to obtain as much information regarding family finances as soon as you are contemplating divorce as things tend to disappear as soon as it is clear that divorce is on the horizon. If the divorce came as a surprise to you, you may have to act fast to preserve financial documents and information, as well as your access to it. An experienced New York family lawyer can help you regain access to any documentation that is now missing. Also, it is just as critical to ensure that all communications with your divorce attorney remain confidential, so do not leave email passwords stored on a shared computer or on your phone during the divorce process.
Divorce Process: Discovery
In a contested case for divorce in New York, after one spouse files for divorce, the often tedious and sometimes torturous process of financial discovery in divorce case begins. Each side may send the other lengthy lists of questions called “interrogatories,” which have been drafted by the family lawyers and which must be answered under oath. Interrogatories are composed of questions about finances, assets, pensions, and similar financial issues. Through their divorce attorneys, the spouses can also serve notices to produce documents such as bank statements, credit-card bills, receipts, tax returns, paycheck stubs, and the like.
Unlike mediators and collaborative lawyers, divorce litigators in New York– such as those at Nolletti Law Group – can also serve discovery subpoenas on third parties for this type of information. Usually, the family lawyers will sift through the interrogatory answers and documents, then question the spouses in person while they are under oath, at what is called a “deposition". Third parties who have relevant information, such as business partners, bookkeepers, accountants, or other witnesses, may also be questioned at a deposition. A deposition takes place in the presence of a stenographer (a court reporter), who later transcribes what was said into a transcript.
Adultery and Divorce
In general, whether or not your spouse had an affair will not affect the procedural aspects of your divorce. Although New York was actually the last state in the United States to adopt “no-fault” divorce, the court views the dissolution of a marriage as the dissolution of an economic partnership, meaning that it doesn’t matter why the dissolution is occurring, only that each partner gets a fair share of the assets and debts. That said, if your spouse spent significant amounts of money on a paramour, or if they acted inappropriately with a paramour in front of your children, then a court may take appropriate action – to award a larger portion of the marital assets to the spouse who was cheated on to make up for the marital funds wasted on the affair, or to award legal and physical child custody to the spouse who is not behaving inappropriately in front of the children.
Preparing for Divorce Litigation and Court in New York
Clients need to be well-informed to help them prepare for divorce litigation and court in New York. Professional responsibility dictates that the divorce attorneys keep clients informed about all aspects and phases of their divorce litigation.
At Nolletti Law Group, our family lawyers work with the clients to define their objectives, outline the divorce process and our approach to their unique case, inform them about the likelihood of achieving those objectives, and provide experienced opinions as to how the court might rule on specific issues in their case.
As clients of Nolletti Law Group, we will make sure that you have a clear understanding of the discovery process and depositions. Before each and every court appearance, your attorney will explain to you its purpose, what to expect, and what issues will be addressed on that day.
If you have children, we make sure that you are aware that you may be “parenting in a goldfish bowl” – meaning that your child-related actions and decisions may be subject to court scrutiny.
At Nolletti Law Group, we prepare our cases and clients in anticipation of trial, even though the majority of divorce cases settle before trial. We have found this to be the most cost-efficient method of being ready for trial in the event settlement cannot be reached. Knowing courtroom procedures, as well as what is likely to occur, reduces your anxieties about divorce litigation and trials. When it comes to issues that will affect the rest of your life, experience demonstrates that you and your lawyer cannot be too prepared.
High-Conflict Divorce Process: Is Negotiation or Litigation Best?
Due to the high cost of a trial, all divorcing couples should try to resolve their conflicts through negotiation, if possible. Although most high-conflict cases start out with litigation, most of them can be resolved through skillful negotiation once the discovery process is complete, as long as the parties and their divorce attorneys are satisfied that they have all of the information necessary to effectively negotiate a divorce settlement.
When you settle your case out of court in New York, you maintain a degree of control over the terms which ultimately will bind you. Additionally, you will be in a position to better tailor the settlement to meet your specific needs and interests, as well as those of your children.
If you are unable to settle, you subject yourself to a court’s determination. The judge, who may not know or understand your family’s unique needs, will decide your and your spouse’s respective rights and obligations. Many times, neither spouse is entirely happy with the judge’s ruling.
Of course, there can be times when one or more issues warrant the expense of a trial. That is usually when the amount in dispute justifies the expense of a trial, and both the party and his/her lawyer believe that they have a good likelihood of success. In many instances, experienced New York divorce litigators can streamline the trial process, and related expense, by resolving the resolvable issues and limiting the trial to only the unresolvable issues.