NY Divorce Essentials
The Procedure of a Divorce in New York
Civil Practice Law and Rules (CPLR)
Domestic Relations Law (DRL)
By J. Douglas Barics
Revised May 2016
The procedure of a New York divorce is an all too often overlooked element of the divorce process. Since a divorce may only be granted by Supreme Court, parties to a divorce action must comply with the appropriate court procedures. The New York procedural rules are found in several statutes. First is the Civil Practice Laws and Rules, more commonly known as the CPLR. To a lesser degree, additional procedural rules unique to divorce and matrimonial actions are found in the Domestic Relations Law, abbreviated as the DRL. Additional court rules are also contained in the New York Court Rules and Regulations, known as the N.YC.R.R..
1. Starting the Divorce Action
Pursuant to DRL 170, a divorce is properly called "An action for a divorce." Like all actions filed in New York, it is commenced by the filing of a summons and complaint or a summons with notice pursuant to CPLR. 304. When the summons is filed, a fee of $210 is charged and a unique index number assigned to the case pursuant to CPLR 306-a. All subsequent papers filed with the court must bear that number along with the caption. The spouse who files the divorce is the plaintiff, and the non filing spouse is the defendant. The defendant must 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 CPLR 308 and DRL 232. Other domestic relations actions are an Action for a separation, under DRL 200, an annulment, which is called "An action to declare the nullity of a void marriage, or annulling a void marriage" DRL 140, 5, 6 and 7, and a special "Enoch Arden" proceeding to dissolve a marriage on the ground of absence under DRL 220 and DRL 221.
Upon commencing a divorce action, automatic restraining orders apply upon the plaintiff immediately, and upon the defendant as soon as he or she is served with them. These orders apply to every matrimonial action, and prevent both parties from transferring assets. Previously, these restraining orders were available at the request of either side via a motion. Note however that the automatic restraining orders are directed only at the parties, and they may not be recognized by a non party such as a bank or other institution. Moreover, only the parties are notified of the automatic orders. If there are significant assets at risk of being improperly transferred, a traditional restraining order may be necessary.
2. The Pleadings: The Complaint, Answer & Reply
Pleadings are governed by CPLR 3001 to 3045, and are designed to give advance written notice to the opposing side as to what is being sought and proven at trial. This advance notice is to allow each side to prepare a defense and conduct discovery with this information at hand. For divorce actions, the complaint must set forth one or more of the grounds listed in Domestic Relations Law 170. In addition, the complaint must also state what additional relief is being requested. Failure to request a specific divorce ground or ancillary relief in the complaint will almost always preclude that party from seeking that relief at trial. It is possible to amend a complaint, but 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, as CPLR 3026 provides that pleadings are to be liberally construed and defects ignored if there is no prejudice. Matrimonial pleadings must also comply with CPLR 3016(c) which requires that marital misconduct be specified in the pleadings.
With the addition of no fault grounds under DRL 170(7), many of the issues involving properly plead grounds have been eliminated.
The pleadings consist of either two or three documents listed in CPLR 3011, as follows:
(a) The Verified Complaint.
The verified complaint, which is prepared and filed by the plaintiff, must allege one or more grounds for the divorce (DRL Section 170), followed by any ancillary (secondary) relief. Some of the most common ancillary relief is custody and parenting time under DRL 240, child support under DRL 240(1-b), post divorce maintenance under DRL 236B(6), equitable distribution under DRL 236B(5), an order of protection pursuant to DRL 240 and DRL 252, exclusive occupancy under DRL 234, attorney fees, expert fees, both authorized under DRL 237 or any other appropriate relief as circumstances require. Each paragraph in the complaint must be numbered sequentially pursuant to CPLR 3014. In addition, DRL 211 requires that matrimonial pleadings be verified pursuant to CPLR 3020.
(b) The Verified Answer
The verified answer is the defendant's response to the verified complaint. For each numbered paragraph in the complaint, the answer will either (a) admit the allegation, (b) deny the allegation, or (c) state that the defendant lacks knowledge to form a belief as to the allegation. In addition, the answer may contain any affirmative defenses. CPLR 3018.
An affirmative defense is a defense which if proven, will prevent the plaintiff from prevailing on an given issue which the plaintiff would have otherwise prevailed. See CPLR 3018(b). (Example – An affirmative defense to adultery is the plaintiff also committed adultery. DRL 171. If this affirmative defense is proven, the court will not grant the divorce based on the defendant's adultery even if proven by the plaintiff).
Failure to plead an affirmative defense will prohibit the use of that defense at trial. The failure to plead a counter-claim will prohibit the defendant from counter-suing for divorce, and the failure to file an answer will result in a default being taken against the defendant.
If the defendant wishes to counter sue for a divorce, the defendant may assert a counterclaim pursuant to CPLR 3019 as part of the answer. A counterclaim is exactly the same as a complaint in all respects, it is simply the defendant suing the plaintiff under the same index number.
(c) The Verified Reply
Should the defendant file a verified counterclaim, the plaintiff is entitled to file a verified reply. This reply is nothing more than an answer to the counterclaim, and like an answer, may contain affirmative defenses. If no counterclaim is filed, the plaintiff is not permitted to file a reply. Care must be taken not to confuse the reply with a reply in support of a motion; despite having the same name, they are two very different documents.
3. Discovery: Disclosure of Information
Discovery is governed by Article 31 of the CPLR, and is often the longest phase of the divorce. Discovery is the term used to describe how each side obtains the information they will need to proceed with the case. Usually, discovery occurs after the pleadings have been filed, but it can start before the complaint is served. A discovery schedule will be set during the preliminary conference.
(a) The Preliminary Conference
The preliminary conference is held early in the divorce, and is a conference with the court to set a timeline for the case, identify which issues if any can be settled early on, to set up any preliminary orders, and to deal with any other preliminary issues. Preliminary conferences are governed by 22 NYCRR 202. Many preliminary orders are made on consent of both parties, covering such matters as scheduling dates for discovery. Any pendente lite requests, such as child support, maintenance, or other day to day expenses can be addressed as well. Any preliminary issue which cannot be resolved on consent may be dealt with in a pendente lite motion. Regardless if the parties consent or not, the court will issue a Preliminary Conference Order setting dates for the dates for the exchange of the following information.
If there are children involved, the court will also determine whether the children need independent representation. If so, the court will appoint an attorney for the child to represent the children. The attorney for the child will be paid either by the state or by the parties, as determined by the court.
The date of the compliance conference is also set during the preliminary conference. Some courts will set a tentative trial date during the preliminary conference as well.
Preliminary conference orders are not appealable as of right, since it did not arise from a motion on notice. See CPLR 5701(a)(2). However, any issue resolve by consent under the preliminary conference order will preclude an appeal from that particular issue. See Shifer v. Shifer 27 A.D.3d 549, (2nd Dept. 2006). In Shifer, the preliminary conference order resolved grounds. That aspect of the appeal was dismissed due to lack of aggrievement.
(b) The Compliance Conference
The compliance conference is another conference to ensure that both sides have all the necessary information necessary to go to trial. At the compliance conference, each side will either agree that discovery is complete, or request additional time to complete discovery. Depending on why discovery is not complete, the court has the option whether or not to grant this request.
Once the court determines there is not outstanding discovery, it will direct the plaintiff to file a note of issue and a certificate of readiness, which states the case ready for trial. Shortly thereafter, the court will set a trial date.
4. Motions: Order to Show Cause & Notice of Motion
Motions are requests for a court order outside of the final disposition of the case, which simply means before, during or after the final judgment. Motions are usually written, but in some instances, the court may allow oral motions for relatively minor issues.
The purpose of most pre trial motions is to request an order for something that cannot wait until the conclusion of trial. One of the most common pre trial motions are pendent lite motions, which literally means "pending the trial. These motions may seek pendente lite custody, pendente lite child support, temporary maintenance under DRL 236 B(5-a), pendente lite attorney fees, or expert fees, pursuant to DRL 237 temporary exclusive occupancy of the marital home, or any other reasonable request.
Other motions will depend on the complexity of the matter. Motions to dismiss an action based on failure to meet any of the residency requirements of DRL 230 may wind up dismissing a case early on. Either a motion to dismiss under CPLR 3211 or a motion for summary judgment under CPLR 3212 may be used, depending where the case is procedurally. Summary judgment motions are also common when a marital agreement is involved. Often one side seeks to enforce it, while the other side seeks to have it set aside. Either side may request a judgment in his our her favor in advance of trial if they believe their evidence is so overwhelming that no trial is necessary. Complex matrimonial litigation may also involve other causes of actions outside of a dissolution of the marriage. One of the more common causes of action that often piggyback onto a divorce action is one for a constructive trust. In these cases, motions to dismiss under CPLR 3211, for summary judgment CPLR 3212, or to amend pleadings under CPLR 3025 may be necessary.
Temporary restraining orders to prevent the dissipation of marital assets requires a motion. These motions can result in restraining orders or the appointment of a temporary receiver under CPLR 6401 to preserve marital assets while the case is pending prior to judgment. For post judgment enforcement motions, a motion may also seek the appointment of a receiver under CPLR 5228 to sell property as directed by the final judgment.
Discovery motions are those which involve one side failing to comply with financial disclosure. Penalties can range from the payment of attorney fees which were expended to secure the information, an order directing the requesting information to be produced, an order of preclusion which prevents the non complying party from testifying or offering evidence at trial, to striking the pleadings, which has the effect of putting the non complying party in default for the entire case.
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.
The order and decision resolving a motion made on notice may be appealed as of right pursuant to CPLR 5701(a)(2). Note that an ex parte order, such as a temporary restraining order, may not be appealed. It is subject to review by the appellate division under CPLR 5704, but if an appeal is sought, a motion to vacate the ex parte order must be made and any order arising from that motion may be appealed.
While non final orders may be appealed as of right under CPLR 5701(a)(2), the right to appeal them separately ends when the final judgment is issued. See Matter of Aho 39 N.Y.2d 241 (Court of Appeals 1976)
Any non final order which was not appealed separately can still be reviewed in an appeal from a final judgment as part of the appeal of that judgment, under CPLR 5501(a)(1) which provides for the scope of review for appeals.
When an appeal from a non final order is taken, but not decided before the final judgment, the appeal is subject to possible dismissal, even if it is perfected. In this situation, the appeal from the non final order needs to be combined with the appeal from the final judgment. See the article on appeals for more details.
It is possible to lose the right to appeal from a non final order. While non final orders are preserved for appellate review in an appeal from the final judgment under CPLR 5501(a)(1), that right will be lost if an appeal from a non final order is taken but not perfected, and the appeal is dismissed or abandoned. If that happens, the appeal is dismissed on the merits, and the right to review the non final order under CPLR 5501(a)(1) is lost. See Rubeo v. National Grange Mutual Insurance 93 N.Y.2d 750 (Court of Appeals 1999). The right for later appellate review if the appeal is withdrawn.
5. The Trial
After the case is certified following the compliance conference, 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. Likewise, undisputed facts may be stipulated on as well.) 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 written decision. At this point, most of the divorce is over, but additional paperwork is still required before it is finalized. It is important to note that the parties are still married at this point, and will remain so until the judgment of divorce is signed.
A trial decision may not be appealed directly as of right, as it is not considered an appealable order under CPLR 5512. It must first be reduced to a judgment, which may then be appealed.
Following this decision, a judgment of divorce must prepared by the lawyers, which is then submitted to the court for signing, along with a "Findings of Fact & Conclusions of Law." and other necessary forms, commonly referred to as the "judgment package." It is only when a judgment is signed by the Court that the parties are actually divorced. The proposed judgment submitted must mirror the exact terms of the decision or stipulation of settlement, either explicitly or by reference. To insure the proposed judgment and findings match the decision and conform to the facts, the proposed judgment and findings the judgment must be "settled." This term has nothing to do with a "settlement" but instead refers to the proposed judgment and findings being signed (i.e. "settled") by the court.
The procedure for settling an order or judgment is fairly straightforward. The party preparing the proposed judgment selects a settlement date which is the day the court will sign the judgment. The proposed judgment, along with the notice of the settlement date, is provided to the opposing side. If they agree that the terms of the judgment are correct to the extent that it conforms to the underlying stipulation or settlement, nothing needs to be done. But if the judgment contains wording or provisions that are not proper or in accordance with the decision or agreement, the opposing side may submit a proposed counter-judgment on or before the settlement date. The Court will then choose which proposed judgment to sign. Many judges require that if a counter-judgment is prepared, it must include a listing of the provisions which are different than the proposed judgment. This process is what is known as "settling on notice" and when most courts issue a decision, it will almost always include a provision that the judgment be settled on notice within a specific timeframe.
The provision "settle on notice" is also very useful in determining whether an order is an appealable paper under CPLR 5512. A direction to settle an order of judgment shows the court's decision is just that, a decision and not an order of judgment. In the event an appeal from a decision is necessary due to extraordinary circumstances, an appeal may be taken under CPLR 5701(c) and CPLR 5515 by filing a motion for permission to appeal.
Once the final judgment is signed, the final step is for it to be "entered" with the county clerk and notice of this entry must be served on the opposing side. The court itself will forward the judgment to the clerk, but it is incumbent upon the parties to obtain a copy of the entry date stamp. This provides notice to the other side that the final papers now exist and are on file with the clerk's office. Service of the notice of entry also starts the time from which the right to appeal begins, which may be commenced by taking the appeal pursuant to CPLR 5515 within the timeframe of 30 days as set forth in CPLR 5513. The time to take an appeal cannot be extended except under extremely limited circumstances, such as the death of the attorney.
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 judgment and findings, and is available for a small fee which may very from county to county.
In New York, divorce files are not a public record and are automatically sealed for 99 years. During that time, they are available only to the parties, their respective attorneys, or by court order.
6. Post Judgment Enforcement
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. Counsel fees for enforcement motions are authorized under DRL 238.
The article "New York Divorce Procedure" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at email@example.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com or www.jdbar.us
Copyright © 1998-2019 by J. Douglas Barics, attorney-at-law. All rights reserved.
J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.