Litigation occurs when you and your spouse cannot agree on the terms to you divorce, so you must file a contested divorce so that a judge may decide for you.
To file a contested divorce in NY state, you must first:
- Index No.: Obtain an Index Number at the County Clerk’s Office. An Index Number is a number assigned to every court action within the New York State Supreme Court. The Index Number is thereafter used on all court documents to identify the case. The Index Number can be purchased. If you cannot afford the cost of an index number, you may file a Poor Person Application, and if approved, the court may grant you one at no cost.
- File: File a Summons with Notice or a Summons and Verified Complaint.
Summons with Notice: A Summons with Notice is a document that, upon filing, starts the Plaintiff’s action for a divorce and simultaneously requires the Defendant to serve a Notice of Appearance in the action within a specified period of time.
This document must first be filed with the County Clerk ’s Office. After, a copy must be served upon the Defendant, giving notice that the Plaintiff has commenced a divorce action.
Verified Complaint: The initial pleading to a court in a civil matter, written by the Plaintiff or his/her attorney. In a divorce action, it contains the Plaintiff’s allegations of his or her reasons for divorce, and it must be verified.
- Service of Process: Have your spouse served. You cannot serve your spouse yourself. Rather, you will need to have another person, who is over the age of 18, and who is not a party to the case serve your spouse with the papers.
- Response: Depending on whether the Summons with Notice or Summons and Complaint was filed, the form of the response will be different.
In New York, the response must be made within a specified time period of 20 or 30 days of the service of the Summons with Notice or Summons and Complaint. It is important that you calendar and respond in the specified period of time.
Summons with Notice: If Summons with Notice was filed, the response will include a Notice of Appearance and usually, a Demand for a Complaint.
Summons and Complaint: If a Summons and Complaint were filed, the response is an Answer (sometimes with Counterclaims). In very unusual circumstances, it may include a Motion.
- Request for Judicial Intervention (RJI): Next you must file a Request for Judicial Intervention (RJI) within the specified period of time. The RJI is a special document that is filed to notify the Court that they may begin handling the case and scheduling associated court dates. The Court will schedule a Preliminary Conference.
- Statement of Net Worth: A Statement of Net Worth must be exchanged between the parties, and filed with the court no later than 10 days before the preliminary conference.
You may refer to NYCRR § 202.16(f)(1) for other papers which the court directs to be exchanged.
- Preliminary Conference: A preliminary conference must be held within 45 days of judicial assignment (RJI filing date).
Both parties must be present at the conference.
There are a very limited number of issues in every divorce case, and although the facts of each case may be different, the issues to be resolved fall under the same categories. During this conference the issues and resolutions to be discussed may involve but are not limited to:
- Grounds for Divorce
- Child Custody
- Child Support
- Spousal Support (maintenance, formerly known as “alimony”)
- Property Division
- Name Change
If there are still unresolved issues following the Preliminary Conference, the Court will have the parties’ attorneys agree to a schedule for discovery. A discovery deadline and trial date will be set.
Only in a contested divorce, detailed information about income, assets, liabilities and employment of both spouses is required. This assortment of information is required to serve as the case’s discovery. Discovery is a long process of information gathering. Discovery begins by each party sending interrogatories to the other. If each spouse is represented by an attorney, the attorney will draft the interrogatories. An interrogatory is a document compiled of a set of questions about finances, assets, pensions and other financial subjects. The interrogatories can also ask the other party to produce copies of certain financial documents, in addition to the common documents required by law. This series of questions is the building block of the trial as the answers serve as the evidence that will be used at trial. Relatives, friends and persons close to the parties of the divorce may be questioned through a deposition. Obtaining this information for trial preparation will be crucial to a fair division of assets and property during the final divorce decree.
Default Judgments: If a defendant doesn’t answer the at all, the party seeking a divorce can seek a default judgment. This means that a judge may rule on all issues in the divorce.
This order may include:
- the divorce itself
- child custody
- child support
- spousal support