In New York, divorce falls under the jurisdiction of the New York State Supreme Court. Other family law matters (which are not connected to a pending divorce action) such as paternity, and domestic violence fall under the jurisdiction of the New York State Family Court. Adoptions are generally handled by the Surrogates Court or Family Court in New York State. International cases (such as Hague cases) may be under the jurisdiction of US Federal Courts.
International matters and adoptions require specific representation that we provide, and we would discuss these situations in explicit detail with you should it pertain to your matter.
A divorce proceeding (and generally, all other Family Law proceedings) begins when one party (the “plaintiff”) files a Summons & Complaint with the County Clerk and causes these papers to be served upon the other party (the “defendant”). Either partner in the marriage may initiate this process, with or without the knowledge of the other partner.
Sometimes, when both parties have agreed to a divorce, the parties’ attorneys may negotiate and prepare a “settlement agreement” which defines the terms of the parties’ divorce. In these cases, it is possible that no paperwork is filed with the County Clerk until a settlement is reached between the parties. This is generally known as an “uncontested divorce” and the terms of the dissolution are determined by the parties. A “contested divorce” entails Court intervention and either the judge will render a decision governing the terms of the divorce, or the parties will settle during the pendency of the action.
The following details legal proceedings and timing related to a contested divorce. We can explain specific variations to these proceedings should you have a different family law matter such as paternity, child support, or child custody that is not specifically tied to a pending divorce action.
Summons & Complaint, Notice of Appearance, Answer
The Summons is a legal document which commences an action for divorce. It details who the parties are (e.g., the divorcing couple), the reason(s) for divorce, and what the plaintiff is seeking (i.e., maintenance, child support, equitable distribution of assets, etc.). Typically, a Complaint is filed and served simultaneously with a Summons. The Complaint details the plaintiff’s allegations for divorce. New York now recognizes the “irretrievable breakdown” of the marriage as a grounds for divorce. The Summons & Complaint may be filed with the County Clerk at any time, but unless it is served on the defendant within 120 days it becomes a nullity.
The defendant, upon being served with the Summons is required to file a Notice of Appearance. The Notice of Appearance simply names the defendant’s counsel who will represent him/her during the proceedings or alternatively, indicates the defendant will represent him/herself, known as pro se representation.
The defendant is required to respond to the Summons & Complaint. This is known as an Answer. Sometimes a defendant may have claims which are interposed as counterclaims. These documents are also filed with the County Clerk and would be served upon the plaintiff’s attorney.
There can be variations to the various legal papers filed, timing, and requirements attributed to each party. Your divorce will have its own characteristics and cadence and we will guide you through the particular legal requirements of your case.
In legal parlance, the collection of documents including the Summons & Complaint, Answer, and Reply are known as Pleadings.
When the parties need the Court to intervene (for example, to decide a motion or, schedule a conference), a Request for Judicial Intervention (“RJI”) is filed and a judge will be assigned to your case. This can happen very early in the process, or in some cases, months or even years after a case has begun. It depends on the particulars of your case and when judicial involvement is required. In uncontested matrimonial cases, an RJI might not be filed until the Settlement Agreement and divorce papers are submitted to the Court to finalize the divorce.
Once the RJI is filed, the judge will schedule a Preliminary Conference (“PC”) for the parties within 45 days of being assigned to the case. The PC is ordinarily your first court appearance with a Judge. A PC form is filled out in advance by the attorneys representing the parties. The purpose of this conference or appearance is to establish certain parameters of the case going forward and to schedule key dates to ensure the case proceeds forward in a timely fashion. The PC form includes such items as the name and addresses of the parties, and their respective attorneys. It also sets forth expected issues in the case, including but not limited to, child custody, equitable distribution, maintenance, child support and fees. It is also an opportunity to present issues that have already been resolved. For example, the parties may have already decided who will live in the marital residence during the pendency of the divorce action or an appropriate level of support.
During the PC, the judge will also decide what documents need to be exchanged between the parties and the time frame in which they must be produced. This will typically include documents that detail the family’s expenses and liabilities and assets, as well as any other documents that would be useful in determining terms of the divorce. Once the judge signs the PC form it becomes an “Order” and binding on the parties.