Starting The Divorce
The first step in the divorce process is by filing a Summons with Notice or a Summons and Complaint. Even where both spouses agree that they want to get divorced, one of them will have to file with the court asking for the divorce. The spouse who files the divorce is called the plaintiff, and the non-filing spouse is called the defendant. New York Divorce law requires that the defendant be personally served with the divorce papers, unless the court grants some other means of service.
The party who is served will then need to file an Answer to the Summons and Complaint. In the Answer, the responding party will state any opposing facts and her/his request for relief.
Either party may request that the court issue temporary orders regarding such issues as support and custody during the pendency of the divorce action. Such requests may be made by filing a motion supported by an affidavit seeking pendente lite relief. Pendente lite hearings are designed to resolve issues while the divorce is pending, such as:
- Temporary custody
- Temporary child support and/or spousal maintenance
- Where the parties are going to reside pending the resolution of the case
- Protection from harassment and domestic violence
- Injunctions against financial improprieties
- Use of assets
If the parties don’t agree on all the issues, they will need to try to negotiate their differences. The court may schedule settlement conferences that attempt to move the parties toward a final resolution of the issues. If the parties disagree on child custody and visitation, the court may also order evaluation of the children and parents by a social worker or other court employee and the court may appoint an attorney to represent the children.
Discovery refers to the “investigation” phase of the divorce process and it allows the parties to seek information to identify the contested issues, and make a determination of the assets, income, and debt of the parties. This exchange of information can be conducted informally with both parties agreeing to freely exchange the information. It may also be conducted formally through the submission of formal documents that require answers under oath.
A divorce may be resolved at any time the parties come to an agreement on the issues. In such cases, the parties sign a settlement agreement or some other form of stipulation resolving all of the issues in the divorce action.
Any issues the parties cannot resolve between themselves will be decided at a trial. At trial, each party will have an opportunity to present their testimony and any evidence or witnesses. After trial, the judge will issue a final judgment of divorce.