Divorce is a tough subject. It’s taxing, it’s complex — and yes, it’s stressful. There are a lot of facets to a divorce, and all of the legal terms and procedures a divorcing couple may be encountering for the first time can be overwhelming. However, being well-informed can help alleviate some of the anxiety created by this life-changing event.
First things first: it’s important to remember that there’s no “one size fits all” when it comes to divorce. Divorces range from the very simple to the highly complex: at one end of the spectrum are the cases where there is little property to divide and no children whose custody needs to be determined; at the other end are those cases where the spouses must account for custody disputes, material assets, and business interests. The more complex the divorce, the more uncertainty is faced by the parties involved.
A good divorce attorney recognizes the struggles faced by a family that is going through this process and takes the time to educate and guide their client. There is a delicate balance that must be struck in the effort of preserving a client’s interest while also protecting the integrity of the entire family’s relationships. A divorce attorney who understands this balance is able to counsel their client to secure the best possible outcome for everyone involved.
One of the most frequent questions a client beginning a divorce proceeding will ask is, “How long is this going to take?” The answer to that question varies. It usually depends on how complex the circumstances of the divorce are and how agreeable or combative each spouse is when it comes time to talk terms. However, in the infrequent cases where an agreement cannot be reached, the length of a divorce proceeding depends instead upon how long it takes the court to schedule and hold a hearing. In either case, there are several factors influencing the amount of time a divorce proceeding will take, and many people underestimate that time. Generally speaking, however, the parties involved should be thinking in terms of months, not weeks.
So, understanding those variables, how does a divorce proceeding start? Generally, the first step involves the exchange of information and documents regarding income, property, assets, debts, and expenses between the spouses. This allows the attorneys and the parties to get a better understanding of the nuances of the particular case. Once those necessary details have been laid out, the attorneys can begin discussing possible resolutions with their clients.
Sometimes, the entire process is as simple as that – not every divorce becomes contentious! In some cases, a settlement agreement can be reached between the parties even before the divorce action is filed. In such cases, the spouses will agree upon matters such as how to divide their property and debt, whether spousal support will be paid, and, if there are children involved, the details of custody, visitation, and child support. This can all be done without having to go to court, if both parties are agreeable. This is known as a pre-filing settlement.
There are two types of divorces: uncontested and contested. A divorce is considered “uncontested” when both parties have agreed to settlement terms. A pre-filing settlement is an example of an uncontested divorce, where the parties have agreed upon all of the terms of their divorce and do not need the help of the court to resolve any issues. A pre-filing settlement can happen quickly or take some time to develop, depending upon how many matters the parties need to resolve. Even in the most amicable of divorces, there are usually a few things that the spouses cannot agree upon. Having a divorce attorney that knows how to negotiate in these cases is important. A good attorney will recognize when negotiations have failed, notice when the other spouse is stalling, and understand the need for resolving the matter in court.
When the parties are not able to reach an agreement before the court becomes involved, the divorce is considered “contested.” In a contested divorce, the parties must prepare for a trial. While it is rare for a divorce case to reach that point, a trial is sometimes necessary when all other negotiations fail.
First, however, the matter needs to reach the court. A divorce proceeding officially begins in New York State when either spouse files a “Summons and Notice” or a “Summons and Complaint” in the county clerk’s office. The spouse that files is known as the “Plaintiff” and the other spouse is known as the “Defendant.” The Summons must be personally served on the Defendant. (However, if the Defendant cannot be located after a diligent search, a court may allow alternate service.)
Once service is completed on the Defendant, the process then proceeds in the same way as in a pre-filing settlement: attempts will be made to arrive at a mutually acceptable agreement between the spouses. At this point, the court is not yet involved. The court will not intervene until one of the parties files a Request for Judicial Intervention (RJI). The RJI is how a matter ends up on the court calendar, and once it’s there, the case will be scheduled for a preliminary conference with either a judge or Court Attorney Referee, generally within 30 to 45 days of the filing of the RJI.
At a preliminary conference, the court and the parties involved will identify any outstanding issues and discuss the nuances of the divorce. The court will then set deadlines for the parties to resolve matters such as the exchange of financial information and documentation. If the custody of children is one of the issues in dispute, the court may also appoint an attorney for the child or children. This attorney, known as an “AFC,” advocates for a child’s interests in custody matters.
If a divorce continues towards trial, the attorneys involved must engage in what is called the “discovery” process. Discovery is the gathering of information that will be used at trial. The parties may exchange documents, serve subpoenas, or take depositions in order to collect evidence to be used during the trial.
Going to trial obviously prolongs the divorce process, and not only due to the time needed to conduct the trial itself. Sometimes attorneys encounter difficulty attempting to obtain necessary discovery. Other times, heavily booked court calendars make it difficult to get a case scheduled in the first place. The process can be delayed for a multitude of reasons, and many of the issues that cause those delays are in fact beyond the control of either the spouses or their attorneys.
As you can see, there are a lot of factors at play that can determine the way a divorce proceeds, from the length of time it will take to level of the court’s involvement. While the complexity of the divorce and the spouses’ willingness to resolve issues are two key factors, some things are simply beyond the spouses’ control – however, being well-informed about the process can help lessen the anxiety of a divorce, and the right attorney will guide you through the process.
Call HoganWillig’s Matrimonial & Family Law Department at (716) 636-7600 if you have any questions about the information discussed here or with any other questions you may have.
Additional information is available on the New York State Court website, www.NYCOURTS.GOV. Click on “Divorce” for Frequently Asked Questions, a Parent’s Handbook to relieve stress on children and families, and other important topics.