Divorce can be stressful and confusing, especially if you’ve never gone through it before. Understanding the process will help you stay calm and make better decisions about your case. A great divorce attorney attorney will educate you about the process, and guide you through the inevitable pitfalls of divorce litigation.
This guide will arm you with the information you need to fully understand and successfully navigate the New York divorce process.
Retaining an Attorney
Why Hire An Attorney
The most important step you should take after deciding to file for divorce or being served with papers, is to hire an attorney.
While it is possible to represent yourself in court, it is extremely difficult for pro se litigants to be successful. Issues of custody, support and division of assets can be very complex, and without knowledge of applicable statutes, case law, and general procedures of the court, you will be at an extreme disadvantage.
A knowledgeable attorney will be able to spot red flags, advise you on a reasonable strategy and outcome, and will be familiar with the court and judges.
Where to Find An Attorney
Word Of Mouth
The best way to find an attorney is to ask friends and family. You can get the inside scoop on what what working with a particular lawyer is really like, things you won’t learn from a website.
Also, search google for law firm blogs and websites that provide useful information. This will give you a sample of a lawyer’s style and help you narrow down who you want to work with.
Another great resource is your local bar association. They can refer you to a local divorce attorney. Keep in mind that many attorneys, like Joleena Louis Law, work in multiple boroughs.
Manhattan (212) 626-7373
Brooklyn (718) 624-0843
Staten Island (718)-442-4500
How to Choose An Attorney
You will work closely with the attorney you hire so it’s important to make sure they are a good fit. When deciding on an attorney, consider:
- Your personality. Are you independent or will you need more guidance and hand holding?
- How would you like to resolve the case? Some lawyers are better at negotiating a settlement than litigating.
- Is it convenient to get to their office?
- Was it easy to reach them to make the appointment?
- Did they make you feel comfortable and answer all of your questions?
- Is family law their primary area of practice?
What Is a Retainer Agreement
Before starting the New York divorce process, the attorney you hire will ask you to sign a retainer agreement. A retainer agreement is a written contract between you and your attorney, detailing legal fees, services provided and other policies of the firm.
Carefully read the agreement and make sure you fully understand the terms. In most cases the initial retainer is only a fraction of what the entire legal fee.
Commencement of the Action
A matrimonial action in New York is started (commenced) by the personal service of a Summons With Notice or Summons & Verified Complaint. This is the legal document in which the spouse starting the case (Plaintiff) informs the other spouse (Defendant) of the divorce, states the grounds for the divorce, and states the relief they are requesting from the court.
The Defendant (or their attorney) prepares a Notice of Appearance or Verified Answer which informs the Plaintiff (and/or their attorney) that the Defendant appears in the action, 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 where they admit or deny the allegations contained in Defendant’s Counterclaim.
Financial disclosure is mandatory in all matrimonial actions and it is extremely important to be thorough at this stage.
The primary aspect of the financial disclosure process consists of the exchange of sworn Statements of Net Worth, which occurs about twenty (20) days after the service of Pleadings. The Statement of Net Worth is a form you use to disclose your income, expenses, assets and liabilities.
It’s important to remember that this is a sworn statement. Any misstatements of fact, lies or fraudulent omissions will be considered perjury.
The Statement of Net Worth must be submitted with a current pay stub, your most recent tax returns, and a copy of your retainer agreement.
The Preliminary Conference
The first court appearance in the New York Divorce process is the Preliminary Conference aka the PC. New York court rules requires clients to be present for every court appearance, especially the PC, since the parties will be addressed directly by the judge at that appearance.
The primary purpose of the preliminary conference is to identify the issues in the divorce. Any issue that has been identified as resolved in the preliminary conference order, cannot be litigated.
This is why it is extremely important to discuss case strategy with your attorney prior to the P.C and to attempt to resolve whatever you can at this point. If your case is resolved at the preliminary conference, this may be the only time you will need to appear in court.
At the P.C. the court may appoint: an attorney for the children, forensic evaluation, and/or experts to determine the value of marital property. In most cases the parties will share the cost of these professionals.
A timeline to have the case ready for trial will also be created at this appearance. Typically the attorneys choose dates and the judge signs off on it. There will be a deadline for the parties to complete discovery and compliance conferences will be scheduled to ensure that deadlines are met.
Depending on the specifics of your case, you may need to file a motion. A motion is a written request made to the court to get specific relief. In the New York divorce process the initial motion in a divorce action will be a motion for pendente lite relief. This type of motion requests temporary support, custody, attorneys’ fees or exclusive use and occupancy of the marital residence pending the action.
Discovery is the part of the divorce where information is gathered for trial by the exchange of information between the parties.
In addition to the Statement of Net Worth, you will also be required to produce original documents such as bank records, income tax returns for previous years, deeds, Statements for retirements funds, Real Property Deeds, etc.
You’ll be questioned about relevant issues in the case in the Demand for Interrogatories (written questions to be answered under oath) and/or at Depositions (where you will be questioned, under oath, by your spouse’s attorney).
Witness will be subpoenaed and assets will be valued at this point.
This can be a long and expensive process, so to aid your attorney please promptly provide any information requested in an organized manner. The information obtained through discovery will either help settle the case or support your trial strategy.
The Compliance Conference
The compliance conference is merely a date to check up on the status of discovery. Now is the time to advise the court if the other party is not being compliant. It’s also another opportunity to discuss what it would take to settle the case.
Note of Issue and Pre-Trial Conference
The Note of Issue and Certificate of Readiness is filed with the Court when discovery is complete and parties are ready for trial.
In some cases the Judge may schedule a Pre-Trial Conference which is basically a meeting between the lawyers and the court attorney to discuss the possibility of settlement. Typically the judge will provide an indication of what the ruling at trial would be on each issue and try to persuade the parties to continue settlement attempts.
The trial is the big show. Depending on the complexity of the case and the schedule of the court, a trial can take a couple of days to a few weeks. I know of trials that have gone on for more than a year (due to adjournments, medical issues and other reasons I don’t understand).
The plaintiff presents their case first. Both sides can offer witnesses and witness may be cross-examined by the other side.
At the end of the trial the judge will issue a decision. In most cases this decision is written and sent to the parties at a later date.
The only way to change the decision is to appeal, and the ability to appeal is limited to a mistake of law or fact. That means you have to prove the law was applied wrong or the facts don’t support a ruling.
The New York divorce process can be daunting. But with the guidance of a great divorce attorney, you can get through it with results you can live with.
If you need help navigating the New York divorce process, contact me today for a consultation.