How Does The Divorce Process Work In New York?
There are two kinds of divorce proceedings that I normally see in New York. They’re not different in the statute, but they are somewhat different in the way that we handle them. One is the simple or uncontested divorce, where there truly are no contested issues whatsoever and both people want the exact same thing. In the simple or uncontested matters, there are no issues of custody, child support, maintenance, or division of property. The parties may have resolved the custody order or child support issues in the family court. All the parties want is to be divorced.
My clients in these cases are usually the plaintiffs or the party who brings the divorce action. They fill out several documents with me, and I send them an information list so that I can get all of the biographical data needed to draft the papers. Once we draft those documents, they sign in a couple of places and we serve the defendant. The other spouse will usually be cooperative, come into my office, accept the papers and sign an affidavit saying that they’re not going to contest the divorce. Then I draft additional papers for the judge’s signature. As long as everything is in order and we have all of the documents, the judge will sign the divorce, and that’s pretty much it; they become divorced.
The more complicated and expensive scenario involves at least one contested issue, which might be child support, maintenance, the division of property or debts, orders of protection for violence or alleged violence, arguments over counsel or expert witness fees, or arguments over who will stay in the house while the case is pending. Any of these issues will slide the case from the uncontested route to the contested route.
There are basically two procedures by which I and most lawyers would proceed. One is not filing anything in the courts, and instead to negotiate the issues in contention. The aim is to get to a document called an Opting Out Agreement (other lawyers call it a Separation Agreement, but it really doesn’t matter what we call it) that contractually obligates each party to undertake certain obligations. After this settlement is complete, one of the parties will sue the other for divorce. If part of the negotiation agreement was to hold off on the divorce for a period of time in order to allow the dependent spouse to continue to use the other spouse’s health insurance, then we will wait to sue for divorce. Assuming that that’s not an issue, the parties will just convert the agreement into a divorce.
The downside of that process is that it can be very frustrating if the other party is not negotiating in good faith or just isn’t negotiating at all. There’s nothing we can do to force them to act in good faith. One spouse may be acting very reasonably, but other spouse simply refuses to accept very reasonable terms. In that case, the disagreement could last forever and become both expensive and very unsatisfying for the client. In anticipation that this is what the other spouse will do, I usually create an arbitrary deadline. If we are not real close to a settlement by 90 days out from when they retain me, then we’ll drop the process and just sue for the divorce.
The alternate to pre-suit negotiation is to file suit and get the case before a judge. We can always negotiation after we file suit, but the difference is that there will be deadlines set by a judge. If we don’t meet those deadlines, then there are certain sanctions that the judge can impose. Therefore if the other side is not negotiating in good faith, or if the parties are both negotiating in a good faith but cannot actually reach an agreement, the case will end: the parties will try the case and a judge will say, “Well, I’m going to divide things up this way.” One side or the other may not like the outcome, but there will be an outcome.
The upside of filing suit is the matter will conclude. The downside is a judge will tell both sides when they must undertake certain actions and will tell the parties how they are dividing their marital estate and where their child will live (among other issues).
It is of course, best if both sides act reasonably and negotiate in good faith. But it is often necessary to commence litigation to get everyone to act in good faith.
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