By Harvey A. Arnoff, Esq.
The Law Firm Of Harvey A. Arnoff
206 Roanoke Avenue, Riverhead NY 11901
631-727-3904
Along with the emotional upheavals that accompany the breakup of a marriage, there are many practical business issues to be addressed. Being aware of the basic legal procedures and terminology used in these matters will help you anticipate the typical progression of events, organize your documentation and perhaps most importantly prepare a logical list of requests for division of property, child support and other issues involved.
In legal terms, these proceedings are referred to as Matrimonial Actions, whether for divorce, separation or annulment. The spouse initiating the Action is referred to as the Plaintiff, and the other spouse is referred to as the Defendant. The Plaintiff will serve a summons to the Defendant, and at that point the Defendant typically retains an attorney. The Defendant's attorney will then forward a Notice of Retainer and Appearance to the Plaintiff's attorney, indicating that he or she is the attorney representing the Defendant.
The next step is typically called "Pleadings", whereby the Plaintiff provides a Complaint Claim against the other spouse, which specifies his or her grounds for divorce. The Defendant then serves an Answer or Counterclaim, which usually denies these allegations and includes his or her own claims constituting grounds for divorce.
At any time after the service of the initial Summons, there may be a need to appear in Court on what is referred to as a Motion. There are a variety of motions in matrimonial actions, including requests for temporary support, temporary child custody and visitations, occupancy of the home or other matters.
These Motions typically involve disclosure of financial information so good record-keeping is very important. Items such as income tax returns, pay stubs, bank records and related information are usually required. At times an appraisal by an outside accountant is required, to evaluate business or real property, pensions and other assets.
New York State Law uses the theory of "Equitable Distribution", regardless of whose name is actually on any title to property. In addition, maintenance (formerly known as alimony) is rarely awarded on a permanent basis, and more frequently awarded for a fixed length to allow the spouse receiving maintenance time to prepare to become employable and self-supporting. This system requires significant time and effort on the part of the attorneys involved to determine both the existing and future financial situation of both parties, giving much consideration to the history of the marriage as regards financial matters.
Although there may be attempts to settle the case at any time after the initial Motions are filed, you should be prepared to have the final decisions made at trial. There are several steps leading up to the actual trial, beginning with an Examination Before Trial (E.B.T.) During the E.B.T. your attorneys will question your spouse and vice versa, with the testimony taken down and transcribed by an independent Court Reporter. E.B.T. questioning is generally centered around financial issues, but questions concerning fault are permissible.
A Note of Issue is filed with the courts, which triggers the court system to assign a Judge to your case, who will schedule a Pre-Trail. This is a conference at which settlement negotiations are discussed. Both you and your spouse will be asked to appear in a Court building along with your attorneys, and the attorneys will appear before the Judge to state your positions. The Judge will provide his or her input on the case and offer settlement suggestions, which are then in turn discussed and negotiated.
If the case is not settled at Pre-Trial but seems close to settlement, the Judge may schedule an additional Pre-Trial. If the sides are not close to a final negotiation, the case will go to Trial where the Judge will make a final decision.
Matrimonial Actions are finalized either by a decision of the Supreme Court Justice after a trial, by a written Agreement or by a process called Oral Stipulation which is an Agreement read into the court records and to which both parties are asked to agree in the courtroom. Once a divorce or separation is granted in Court, there is generally a time lag of several weeks during which the finalized written document is prepared and signed by a Supreme Court Justice.
The total time frame involved in this process can vary from several months to well over one year, depending the complexity of the case and the amount of cooperation on the part of either spouse or their attorney. However simple or complex your case is, an understanding of the typical procedure is an important step toward achieving a timely legal resolution, and will help you focus on the financial matters at hand during this very emotional time of life.
Note: This column is presenting general information only, and is not intended as legal advice or counsel. The Law Offices of Harvey A. Arnoff, Esq.takes no responsibility for any typographical errors or omissions, and recommend anyone involved in a Marital Action retain the services of a qualified and experienced attorney.
