New York Divorce Procedure
Civil Practice Law and Rules (CPLR)
Domestic Relations Law (DRL)
By J. Douglas Barics
Revised March 2011
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 C.P.L.R.. To a lesser degree, additional procedural rules unique to divorce and matrimonial actions are found in the Domestic Relations Law, abbreviated as the D.R.L.. 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.
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.
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 or visitation, child support, maintenance, equitable distribution, an order of protection, exclusive occupancy, legal & expert fees, 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 the NYCRR. 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.
- Sworn Statement of Net Worth
- Notice for Discovery and Inspection
- Appraisal of pensions
- Appraisal of real estate
- Appraisal of business or professional license
- Appraisal of any other asset of value
If there are children involved, the court will also determine whether the children need independent representation. If so, the court will appoint a law guardian to represent the children. The law guardian 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 trial date during the preliminary conference as well.
(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. There are pre-trial motions, trial motions, and post judgment motions. Motions are usually written, but in some instances, the court may allow oral motions.
The purpose of most pre trial motions are made 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, child or spousal support, attorney fees, expert fees, temporary exclusive occupancy of the marital home, or any other reasonable request. An example of a non pendente lite motion is a request for a court order compelling the other side to comply with discovery demands or risk further sanctions.
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.
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 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 by the lawyers, which is then submitted to the court for signing, along with a "Findings of Fact & Conclusions of Law." It is only when a judgment is signed that the parties are actually divorced. When preparing the proposed judgment, it must which mirror the exact terms of the decision or stipulation of settlement. 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 review prior to the judge signing them. That side also has the right to submit a proposed counter judgment to the court as well. This too must be served on opposing counsel before it is submitted to the court. This process is known as "settling on notice" and when most courts issue a decision, it will also include a provision that the judgment be settled on notice within a specific timeframe.
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 available only to the parties or their respective attorneys.
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.
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 firstname.lastname@example.org or (631) 864-2600. For more articles and information, please visit www.jdbar.com
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J. Douglas Barics, Esq. – Divorce, family, matrimonial lawyer in Long Island, New York.