Litigation is a process where one or both parties file a court complaint to give a judge the authority to resolve family disputes. Litigation will most often result in a contested divorce, upon which the spouses cannot come to an agreement.
When commencing the action, the first papers are filed with the court. These documents become part of what is known as the Pleadings, and may consist of a Summons and Complaint or another document known as the Summons with Notice. The Plaintiff will serve (deliver) a summons to the Defendant, and at that point (if the Defendant contests the divorce) the Defendant will usually retain an attorney. The Defendant’s attorney will then forward a Notice of Appearance to the Plaintiff’s attorney, indicating that he or she is the attorney representing the Defendant. If a complaint was not served with the Summons, the Defendant’s attorney will request one.
The Plaintiff, if they have not done so already, then provides the Defendant with a Complaint, which outlines the grounds for divorce alleged by the Plaintiff. The Defendant will then serve his/her Answer, which may contain Counterclaims, and denies or admits the allegations made in the Complaint. After service of the Summons, the parties may need to appear in court for some kind of immediate or temporary relief. The relief requests may include a request for exclusive occupation of the parties’ home, payments for support, or an award of custody of any of the parties’ child. While these “Motions” may award only temporary relief, they are highly important to the outcome of the action. If the “Motion” made by either party is necessary for some financial matter, then the parties will need to disclose (show the court) relevant financial documentation, including pay stubs, bills, bank information and/or recent tax returns.
To commence a contested divorce, a Request for Judicial Intervention (RJI) must be filed no later than 45 days from service of the summons. Alternatively, a Request for Judicial Intervention (RJI) must be filed no later than 120 days from service of the summons if a Notice of No Necessity is filed by both parties.
Next, a Statement of Net Worth must be exchanged and filed no later than 10 days prior to the preliminary conference. Parties may refer to NYCRR § 202.16(f)(1) for other papers which the court directs to be exchanged. A preliminary conference must be held within 45 days of judicial assignment (RJI filing date). At the conference, both parties must be present, and the judge shall address the parties.
The following step is for a compliance conference to be scheduled unless the court dispenses with it based upon a stipulation of compliance filed by the parties. Parties must be present unless otherwise advised by the court, and the judge shall address the parties.
To prepare for trial Discovery shall be completed and a Note of Issue filed no later than 6 months from the date the preliminary conference was held unless otherwise shortened or extended by the court dependent upon the circumstances. A trial shall be scheduled no later than 6 months from the date the preliminary conference was held.
An Uncontested Divorce occurs when you and your spouse agree to all of the terms of divorce. You may reach this agreement on your own, or with the help of an attorney. Once this agreement is reached, the terms of your divorce must be memorialized in a separation agreement.
A separation agreement is a written contract between you and your spouse, and identifies in detail how you are going to divide your property, child custody, child support, spousal support, visitation and any other issues that relate to your divorce.
It is often helpful to speak to an attorney about the law and how it applies to you, in order to ensure you are making the best choice for you and your family.
An annulment in New York requires a trial and hearing before a judge. Unlike a divorce, which can be granted upon written or sworn testimony without a trial, an annulment will require at least one of the grounds to be proven in court. This will require paperwork to be filed with the court and you to bring evidence including documents and/or witnesses that can support your claim for annulment.
In contrast to an action for divorce, grounds for an annulment is always based on something that pre-dates the marriage stopping the marriage from realization under the law. An annulment is a legal proceeding that goes further by declaring a marriage invalid or void through a court order. It’s as if the marriage never happened. Some individuals may want an annulment in order to avoid any stigma they believe is associated with divorce. This article covers only civil annulments, not religious annulments, which can only be granted by a church or clergy and have no legal effect on martial status. Typically, grounds for an annulment result from marriages that are considered void or voidable. The vital difference to understand between an annulment and a divorce is that the divorce ends an existing, valid marriage, where an annulment declares that what was believed to be a marriage was never actually a marriage at all. In the eyes of the law, the effect of an annulment is that your marriage would be considered void, as if you were never married.
There are a number of reasons why you can ask a New York court to declare your marriage void. You will have to present evidence proving one of the reasons so that the court can decide whether an annulment is appropriate or not. Reasons for granting an annulment are:
- Bigamy, meaning one spouse is already married to someone else at the time of the second marriage
- The spouses are too closely related by blood
- One of the parties is under the age of consent (meaning not legally recognized as an adult yet). An action to annul a marriage on this ground may be maintained by the under-age party, or by that party’s parents or guardian. If the under-age party has since attained the age of consent and freely cohabited with the other party as spouse, the marriage can no longer be annulled.
- One of the parties is a mentally retarded or mentally ill person and does not have the capacity to consent
- One of the parties is incurably incapable of having sexual intercourse
- One of the parties has had an incurable mental illness for five years
- Either spouse’s consent was obtained by fraud or duress