Divorce Rockland County New York
New York Divorce Procedure In Rockland County New York.
Divorce Rockland County New York, Domestic Relations Law (the “DRL”) is the statute governing the rules for divorce everywhere in New York including Rockland counties.
The first procedural step in Divorce Rockland County New York is the filing of the summons and complaint with the Rockland County Clerk (Civil Procedure Law (the “CPLR”) section 304. The filing fee of $210, submitted along with an Index Number Application is required for the Clerk to assign the case an “index number” – a sequential file number and the year in which the action is filed. Every paper filed in court must contain the index number of the case (CPLR § 306-a). Divorce Rockland County New York
The spouse who files the divorce is the “plaintiff”, and the spouse being served with the divorce papers is the “defendant”.
Once the action has been assigned an index number, the summons and complaint (the “Papers”) must be served on the defendant in order to obtain “jurisdiction” so that the court can determine the rights of both parties and then once determined, issue a judgment of divorce.
Service of the Papers in Divorce Rockland County New York, must be made by someone other than the plaintiff, and should be handled by a person familiar with serving legal papers. There are special requirements for service of process in a divorce action. (CPLR § 308; DRL § 232).
There are other, more arcane marital actions, such as actions for “legal separation”, but there are rarely any legal advantage to utilizing these other methods. In Divorce Rockland County New York, certain circumstances such as the need for continuing on a party’s medical insurance policy through employment, a legal separation may be of some benefit, but with the advent of the Affordable Care Act, this may no longer be the case. You will need to discuss this with a skilled matrimonial attorney and/or your benefits manager at your place of employment if a legal separation would have any financial advantage in terms of the cost of medical insurance.
Recent changes to the divorce laws provide for an “automatic restraining order” that effectively freezes the financial situation of the parties at the time of the filing so that neither party can transfer-away assets that may be subject to “equitable distribution”. The specifics of the order must be included as part of the Papers.
- THE PLEADINGS: The Complaint, Answer & Reply
General, the requirements for the minimum substantive contents of a complaint are governed by CPLR § § 3001 through 3045. Divorce complaints require that the “grounds” be set forth. Those “grounds” are listed in DRL § 170. The Papers must also provide for what “relief” the plaintiff is requesting: equitable distribution; spousal support (formerly known as “alimony”); custody; visitation; and various other issues that are part and parcel of dissolving the “business of the marriage”.
While CPLR § 3026 provides that pleadings are to be liberally construed and defects ignored if there is no prejudice, poorly-drafted Papers significantly delay the ultimate resolution, add dramatically to costs and expose a party to additional risks of “games” that can be played by one side or the other as more and more time drags on while procedural and substantive lapses are sought to be corrected.
The pleadings consist of either two or three documents listed in CPLR 3011, as follows:
(a) The Verified Complaint.
In Rockland County, as everywhere in New York, the verified complaint, which is prepared and filed by the plaintiff, must allege one or more grounds for the divorce (DRL 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 & expert fees, or any other appropriate relief as circumstances require. Each paragraph in the complaint must be numbered sequentially pursuant to CPLR 3014. In addition, DRL 211 requires that matrimonial pleadings be verified pursuant to CPLR 3020.
(b) The Verified Answer
The verified answer is the defendant’s response to the verified 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. CPLR 3018.
An affirmative defense is a defense which if proven, will prevent the plaintiff from prevailing on an given issue which the plaintiff would have otherwise prevailed. See CPLR 3018(b). (Example – An affirmative defense to adultery is the plaintiff also committed adultery. DRL 171. 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 counter-claim will prohibit the defendant from counter-suing for divorce, and the failure to file an answer 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 CPLR 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
- DISCOVERY: Disclosure of Information
Discovery is governed by Article 31 of the CPLR, 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 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 in Divorce Rockland County New York is held early in the divorce, and is a conference with the court to set a timeline for the case, identify which issues if any can be settled early on, to set up any preliminary orders, and to deal with any other preliminary issues. Preliminary conferences are governed by the NYCRR. Many preliminary orders are made on consent of both parties, covering such matters as scheduling dates for discovery. Any pendente lite requests, such as child support, maintenance, or other day to day expenses can be addressed as well. Any preliminary issue which cannot be resolved on consent may be dealt with in a pendente lite motion. Regardless if the parties consent or not, the court will issue a Preliminary Conference Order setting dates for the dates for the exchange of the following information:
- Sworn Statement of Net Worth
- Notice for Discovery and Inspection
- Appraisal of pensions
- Appraisal of real estate
- Appraisal of business or professional license
- Appraisal of any other asset of value
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. 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. Some courts will set a trial date during the preliminary conference as well.
(b) The Compliance Conference
In Divorce Rockland County New York 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 ready for trial. Shortly thereafter, the court will set a trial date. Divorce Rockland County New York
- MOTIONS: Order to Show Cause & Notice of Motion
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 some instances, the court may allow oral motions.
The purpose of most pre trial motions are made to request an order for something that cannot wait until the conclusion of trial. One of the most common pre trial motions are pendent lite motions, which literally means “pending the trial. These motions may seek pendente lite custody, child or spousal support, attorney fees, expert fees, temporary exclusive occupancy of the marital home, or any other reasonable request. An example of a 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.
- THE TRIAL
After the case is certified following the compliance conference, 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. Likewise, undisputed facts may be stipulated on as well.) 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 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 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. When preparing the proposed judgment, it must which 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 small fee which may very from county to county.
Divorce Rockland County New York, divorce files are not a public record and are available only to the parties or their respective attorneys.
- 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.
PENDENTE LITE SUMMARY
Divorce Rockland County New York. The financial obligations one faces pending a final divorce order can be overwhelming. In order to meet those expenses and maintain the same standard of living prior to the start of a divorce action, a person may make an application for pendente lite support. Interim support, before a final resolution, may also be necessary in order to maintain any marital assets that will be equitably distributed among the parties. Pendente Lite relief may include spousal support, child support, and carrying charges on the marital residence, including household bills and mortgage payments. Pendente Lite support is only temporary and ceases upon a final order of divorce. However, when an award for pendente lite maintenance is granted, the amount owed is calculated from the date of service of the application there for. Most Importantly, an application for pendente lite support can become the foundation of your divorce proceeding in that it give the judge an idea of what your standard of living was like during the marriage and the type of permanent relief you and your family may need.
Upon receipt of an application for pendente lite support, a judge will consider a multitude of factors in deciding whether to grant temporary relief. It is extremely important that your application is well written, reasonable, and includes details of your marriage to best obtain a favorable decision. Primarily the court looks at the reasonable needs of the spouse seeking support and the financial ability of the other spouse to meet those needs. The court will analyze whether the paying spouse will be able to meet his or her own living expenses before the judge grants a pendente lite award. Since pendente lite support is awarded to the extent necessary to enable a party to be self-supporting, the short duration of a marriage is irrelevant. Despite the ability of an applicant to support his or herself, the court may still award pendente lite relief if the application can show a reasonable need for support and the ability of the paying spouse to help finance those expenses. A party is more likely to be awarded interim support if he or she can show the lack of sufficient property and income to maintain the same standard of living as during the marriage in addition to showing that a final resolution is not imminent. The fact that a husband and wife continue to reside together does not bar an interim award of child support.
The amount of pendente lite support the judge may issue involves factoring in the carrying charges on any residences, the marital standard or living, the parties’ income, the deductibility of the maintenance, and the payor’s ability to pay. In computing the payor’s ability to pay and to determine the amount owed, the court may include annual bonuses when calculating the gross income of the payor. Furthermore, in Divorce Rockland County New York, determining the amount of interim maintenance to award the court must consider the tax implications in that he payor’s net income will increase because maintenance payments are deducted. The judge may also order that specific amounts be allocated between both the spouse and the children. In order to pay the necessary expenses incurred from the beginning of the action the court may order that marital assets be distributed prior to trial. In the instance that both spouses have comparable income and remain living together, the court may still order that both spouses contribute to the carrying charges of the marital residence. However in Divorce Rockland County New York, if both spouses remain living together in the marital residence and one continues to pay for the reasonable needs of the other, the court may not award pendente lite support. Nevertheless, if the voluntary payments made by one spouse are insufficient to meet the reasonable needs of the other and their children, the court may award interim maintenance in an amount that exceeds the voluntary payments.
The existence of prenuptial and postnuptial agreements may be considered in the judge’s decision to award interim support. Even though a pre-nuptial agreement may contain a provision which waives spousal maintenance, temporary maintenance may still be awarded prior to a judgment of divorce. However, if a parties’ prenuptial agreement waived award of pendent lite counsel fees, the court may not award interim counsel fees to litigate a custody battle. Additionally, in a Divorce Rockland County New York, pre nuptial agreement that prevents a spouse from receiving interim maintenance will be enforced unless the agreement is unconscionable or there is a likelihood that the spouse will become a public. An award of interim child support may be granted despite a provision in a post-nuptial agreement that bars an award of temporary maintenance. Pendente lite child support may be awarded when child support provisions in a separation agreement are unenforceable where they to do not contain language required by DRL 240. Furthermore, where the husband promised to pay the carrying charges on the marital residence until its sale, and the wife moved out in reliance on this promise, the court ordered him to temporarily pay the past-due and future carrying charges on the marital residence until its sale.
Appeals from an order awarding temporary maintenance and child support are not encouraged in divorce Rockland County New York or anywhere in New York. Yet, when an award for support pendente lite is deficient and trial is not imminent due to the likelihood of prolonged discovery and financial disputes, it can be modified. A speedy trial is ordinarily the proper remedy to rectify inequities in orders awarding pendente lite relief. However, if the amount ordered is so excessive that it depletes the payor spouse’s assets and income in effect preventing him or her from meeting their own expenses, the award may be decreased. Furthermore, where there is an extreme difference in the financial positions of the parties in addition to increased needs, the court may grant an upward or downward modification for maintenance. Additionally, the court may decrease the equitable distribution award at trial where it is found that the pendente lite award was overly excessive.
Whether provided voluntarily through a mutual agreement or by a court application, pendente lite support for any divorce Rockland County New York is one of the most significant applications in your divorce proceeding. A final support award can be higher or lower than the pendente lite support. Although the contents of a pendente lite motion are fact sensitive the factors mentioned above are those most commonly considered by the court.
For Divorce Rockland County New York, the attorney to call for contested divorce, custody, or child support matters is Bruce Stern. The initial consultation is without charge.
Contact an experienced Rockland County divorce, custody and child support attorney
Stern Law Offices is a skillful and dedicated law firm that focuses its attention on serving people and businesses in Rockland County facing divorce, custody, and child support disputes. With over 25 years of experience, Stern Law Offices will provide the experience you need to have your issue resolved effectively and quickly. If you are facing disputes of any kind, the sooner you engage an attorney the greater the likelihood of a successful outcome. Contact our firm to assess the situation and let us effectively and efficiently represent your needs. Contact Stern Law Offices for an immediate consultation.