The procedure of a New York divorce is an important but often overlooked element in understanding the divorce process. While people are free to enter into a marriage, only a court may end it by the issuance of judgment of divorce. As the courts must be used, navigating through the courts means the court procedure must be followed. The rules are contained in the Civil Practice Laws and Regulations, more commonly known as the C.P.L.R. To a much lesser degree, there are some procedural rules unique to divorces which are contained in the Domestic Relations Law, abbreviated as the D.R.L. Additional rules are also found in the New York Court Rules and Regulations, known as the NYCRR.

1. Starting the Divorce

The proper name for a divorce is “An action for a divorce.” Like all actions, a divorce action is commenced by the filing of a summons and complaint or a summons with notice. C.P.L.R. 304. When the summons is filed, a fee of $210 is charged and a unique index number assigned to the case. C.P.L.R. 306-a. All subsequent papers filed with the court must bear that number along with the caption. 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. Note that there are special requirements for service of process in a divorce action. See C.P.L.R. 308 and D.R.L. 232.

Other domestic relations actions are an "Action for a separation" D.R.L. 200, “An action to declare the nullity of a void marriage” D.R.L. 140 to 146 and a special proceeding to dissolve a marriage on the ground of absence. D.R.L. 220 and 221

2. The Pleadings

Pleadings are governed by C.P.L.R. 3001 to 3045, and are intended to give advance written notice to the opposing side, so that they are aware of the allegations and what type of relief is being requested, and to allow preparation of any defense they may have. For divorce actions, the complaint must set forth one or more of the grounds listed in D.R.L. 170. In addition to the grounds, the complaint must also state what additional relief is being requested. Failure to request a specific relief in the complaint will almost certainly preclude that party from seeking that relief at trial. It is possible to amend a complaint, but delay in doing so may result in the amended pleading being rejected. Poorly drafted pleadings can also result in the divorce being dismissed, although this tends to be rare, as C.P.L.R. 3026 provides that pleadings are to be liberally construed and defects ignored if there is no prejudice. Matrimonial pleadings must also comply with C.P.L.R. 3016(c) which requires that marital misconduct be specified in the pleadings.

The pleadings consist of either two or three documents. See C.P.L.R. 3011.

(a) The Verified Complaint

The verified complaint, which is prepared and filed by the plaintiff, must allege one or more grounds for the divorce (D.R.L. Section 170), followed by any ancillary (secondary) relief. Some of the most common ancillary relief is custody or visitation, child support, maintenance, equitable distribution, an order of protection, exclusive occupancy, legal fees, expert fees, or any other appropriate relief as circumstances require. Each paragraph in the complaint must be numbered sequentially pursuant to C.P.L.R. 3014. In addition, D.R.L. Section 211 requires that matrimonial pleadings be verified pursuant to C.P.L.R. 3020.

(b) The Verified Answer

The answer is the defendant’s response to the complaint. For each numbered paragraph in the complaint, the answer will either (a) admit the allegation, (b) deny the allegation, or (c) state that the defendant lacks knowledge to form a belief as to the allegation. In addition, the answer may contain any affirmative defenses. C.P.L.R. 3018.

An affirmative defense is a defense which, if proven, will prevent the plaintiff from prevailing on a given issue on which the plaintiff would have otherwise prevailed. See C.P.L.R. 3018(b). (Example – An affirmative defense to adultery is that the plaintiff also committed adultery. If this affirmative defense is proven, the court will not grant the divorce based on the defendant’s adultery even if proven by the plaintiff).

Failure to plead an affirmative defense will prohibit the use of that defense at trial. The failure to plead a counterclaim will prohibit the defendant from countersuing for divorce, and the failure to file an answer at all will result in a default being taken against the defendant.

If the defendant wishes to counter sue for a divorce, the defendant may assert a counterclaim pursuant to C.P.L.R. 3019 as part of the answer. A counterclaim is exactly the same as a complaint in all respects; it is simply the defendant suing the plaintiff under the same index number.

(c) The Verified Reply

Should the defendant file a verified counterclaim, the plaintiff is entitled to file a verified reply. This reply is nothing more than an answer to the counterclaim, and like an answer, may contain affirmative defenses. If no counterclaim is filed, the plaintiff is not permitted to file a reply. Care must be taken not to confuse the reply with a reply in support of a motion; despite having the same name, they are two very different documents.

3. Discovery

Discovery is governed by Article 31 of the C.P.L.R., and is often the longest phase of the divorce. Discovery is the term used to describe how each side obtains the information they will need to proceed with the case. Usually, discovery occurs after the pleadings have been filed, but in many cases it can start before the complaint is served. A discovery schedule will be set during the preliminary conference.

(a) The Preliminary Conference

The preliminary conference is held early in the divorce to set a timeline for the case, identify which issues if any can be settled early on, set up any preliminary orders, and to deal with any other preliminary issues. Preliminary conferences are governed by NYCRR. Many preliminary orders are made with the consent of both parties, and can cover such issues as scheduling dates and pendente lite requests. Absent such consent, it may be necessary to make a motion. At the preliminary conference, the judge will issue an order setting up the dates for the exchange of the following information. View a sample preliminary conference order.

• Net Worth Statements View a sample statement of net worth
• Appraisal of Pensions View a sample order for a pension appraisal
• Appraisal of Real Estate View a sample order for a real estate appraisal
• Other Appraisals View a sample order for general appraisal order

Notice for discovery and inspection: This is used to request documents. C.P.L.R. 3120.

Interrogatories: These are written questions. C.P.L.R. 3130.

Examination before trial: These are oral questions asked and answered and recorded by a court reporter. C.P.L.R. 3113.

If there are children involved, the court will also determine whether the children need independent representation. If so, the court will appoint a law guardian to represent the children’s interest. The law guardian will be paid either by the state or by the parties, as determined by the court.

The date of the compliance conference is also set during the preliminary conference.

(b) The Compliance Conference

The compliance conference is another conference to ensure that both sides have all the necessary information necessary to go to trial. At the compliance conference, each side will either agree that discovery is complete, or request additional time to complete discovery. Depending on why discovery is not complete, the court has the option whether or not to grant this request.

Once the court determines there is not outstanding discovery, it will direct the plaintiff to file a note of issue and a certificate of readiness, which states the case is ready for trial. Shortly thereafter, the court will set a trial date.

4. Motions

Motions are requests for a court order outside of the final disposition of the case. There are pre-trial motions, trial motions, and post-judgment motions. Motions are usually written, but in rare instances, the court may allow oral motions.

The purpose of most pre-trial motions is to request an order for something that cannot wait until the trial. One of the most common pre-trial motions is called a pendente lite motion, which literally means “pending the trial.” These motions may seek pendente lite custody, pendente lite support, pendente lite counsel or expert fees, pendente lite exclusive occupancy of the marital home, or any other reasonable pendente lite request. A typical non pendente lite motion is a request for a court order compelling the other side to comply with discovery demands or risk further sanctions.

Once all motion papers are submitted, the court will issue a decision granting or denying the relief requested. In some cases, the court may allow oral argument to supplement the written papers.

For further information, please the article on motions.

5. The Trial

After the case is marked trial ready, the court will set a trial date. Very often, a pre-trial conference is held to see if any issues can be settled or stipulated. (Example: to save time and expense, many times it is stipulated to use photocopies instead of original documents). During the trial, the plaintiff will present his or her case first by testifying, calling witnesses, and submitting any documentary evidence in support of their position. The defense will have the opportunity to cross-examine the plaintiff’s witnesses. At the conclusion of the plaintiff’s case, the defendant presents his or her case, can testify, call witnesses and present any documentary evidence.

At the conclusion of trial, the court will issue a decision, either in writing or on the record, which will address all issues of the divorce. At this point, most of the divorce is over, but additional paperwork is still required. It is important to note that the parties are still married at this point.

Following this decision, a judgment of divorce must be prepared by the lawyers, which is then submitted to the court for signing, along with a “Findings of Fact & Conclusions of Law.” It is only when a judgment is signed that the parties are actually divorced. The proposed judgment must mirror the exact terms of the decision or stipulation of settlement. To insure the proposed judgment and findings match the decision, the party who prepares the proposed papers must serve a copy of them to the opposing attorney to allow review prior to the judge signing them. That side also has the right to submit a proposed counter judgment to the court as well. This too must be served on opposing counsel before it is submitted to the court. This process is known as “settling on notice” and when most courts issue a decision, it will also include a provision that the judgment be settled on notice within a specific timeframe.

All original documents are located in the county clerk’s office. Either party to a divorce can review the file and obtain a copy of any document therein. A certified copy is a certification by the court that a photocopy is a true and accurate copy of the judgment and findings, and is available for a nominal fee ranging from $4.00 to $10.00 per copy.

In New York, divorce files are not a public record and are available only to the parties or their respective attorneys

6. Post-Judgment Enforcement

Many judgments require one or both parties to take various acts in the future. If one party fails to do so, one enforcement mechanism is to file a post-judgment motion.

Copyright © 1998-2007 by J. Douglas Barics, attorney at law. All rights reserved.