To begin a divorce case, or in legal terms a divorce action, one or two legal documents are filed with your county clerk's office--a summons and a verified complaint. A summons identifies the parties to the divorce action, i.e. the husband and wife, and the fact that an action for divorce has been commenced. In addition, the summons usually contains what is called notice. The notice states the fault grounds for divorce that will be claimed or alleged by the party commencing the divorce action and the relief sought by that party. Relief can include such things as custody, child support, spousal support and a division of property. The fault grounds for divorce are not explained in a summons. A simple statement such as the grounds for divorce are cruel and inhuman treatment and adultery is all that is required.
It is critical that every possible fault ground for divorce is stated in the summons. It is not always possible to change the grounds that are alleged later on in the case. For example, if you believe that your spouse has had an affair but your proof later turns out to be insufficient, you might have a difficult time changing your fault grounds to be cruel and inhuman treatment. A judge will have the right to decide if you should be able to do that. That is why your attorney will encourage you to list all of the possible grounds for divorce in the summons.
In addition to listing the grounds for divorce, a summons must contain what is called a demand for relief. Your attorney will also encourage you to list all of the possible types of relief that the court can grant you in a divorce action. The reason for doing so is the same as with listing grounds for divorce. If you do not ask for certain types of relief, a court might deny that relief to you later, or your right to payments such as child support might be dramatically effected because you did not demand that relief at an early date. To avoid this problem, your attorney may include a comprehensive list of virtually all the types of relief that might be sought. It could include divorce, custody, child support, spousal support, a division of marital property, a determination of separate property, a provision for health insurance, exclusive possession of the marital residence and so forth.
There are cases where the client does not want to list all of the grounds for divorce or all of the relief that might be available in the summons. Those are usually cases where the client and attorney believe that even though an action for Divorce is being commenced, there is a good possibility that the parties will not remain in the court system, but will attempt to negotiate a settlement. If that is the case, listing all of the grounds for divorce or all of the relief that could be requested might have a negative effect upon one or both of the parties' desire to negotiate. The papers alleging grounds for divorce can cause extreme emotional reactions in people, so the effect of listing everything in the summons should be considered. On the other hand, there are cases where the client wants to cause that reaction and asks the attorney to put everything that a creative mind could think up into the summons. Some attorneys will comply. As said earlier in this book, if you want to fight, there are plenty of attorneys who will sympathize will you and fight for you, and they will cry all of the way to the bank on your dime.
You can begin a divorce action simply by filing the summons containing notice in the county clerk's office. A filing fee, or tax, of $170 must accompany the summons. The filing fee pays for an index number. Your index number will identify your case in the court system from that moment forward. For the divorce action to go forward, your spouse must be served with the summons with the index number written on it. That service must occur within one hundred twenty days after the summons was filed and it must be a personal service, meaning that the summons cannot be mailed to the person or simply left at their residence. They must personally receive the summons.
The service of the summons can occur in a number of ways. A process server is usually hired to serve the summons. The fee for this service can range from $20 to $150 dollars, depending upon your locality and the difficulty of serving your spouse. If both parties in a divorce case have attorneys when the case is commenced, the attorney filing the summons might request that the other attorney accept the summons and serve his or her client. When that happens, that attorney must personally hand the summons to his or her client. The attorney will then sign a document called an affidavit of service. That document simply describes how and when service was effected and describes the person served. Whether a process server, a third party, or an attorney serves the summons, an affidavit of service must be prepared and filed with the county clerk's office.
As stated above, the summons must be served upon the other spouse within one hundred twenty days after the summons is filed. Your attorney may use this time limit as a legal tactic. For example, there might be a case where a client believes that their spouse will file papers in Family Court and the client and the attorney want the case to be heard in Supreme Court. This might also be a case where the attorney and client want to negotiate a settlement and where the mere filing of divorce papers will instigate a ferocious battle. Such cases are not uncommon. If that happens, the attorney will prepare and file a summons, but not serve the other party. If the summons has been filed, the other party cannot litigate in Family Court. If the parties go on to negotiate, there is no need to ever serve the summons. The other spouse does not need to know that an action for divorce was commenced. For the protection of avoiding Family Court, you will only spend a small filing fee of $170 and the attorney's fees for preparing the summons. That might be a small price to pay depending on the reasons for avoiding Family Court. There are other types of cases that might lead your attorney to recommend that same tactical course of conduct. You should, as always, discuss the specific facts of your case with your attorney.
