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Commencement of Divorce Action

December 3, 2014

In New York State, an action for divorce is started by filing a summons and complaint in the office of the county in which either party resides.  The summons and complaint seek to alter the marital status of the parties and to have the Court determine appropriate ancillary relief, such as custody of and access to children, support for children, support for a spouse, and the equitable distribution of property and debt.

Commencement Date

The date on which a summons/complaint is filed (referred to as the “commencement date”) is important in New York because it establishes the earliest date from which a future order of support may be made retroactive.  It also provides the official end date of the accumulation of marital assets and marital debt.  Generally speaking, the date that an action for divorce is commenced is the date that is used to establish the value of marital property, such as the balance in a deferred asset like a retirement account.  Future contributions to the retirement account made by a participating spouse and/or his/her employer after the date of commencement are the separate property of that participating spouse and are not factored into a division of that account.

There are certain exceptions to the use of the commencement date as the valuation date of a marital asset, and the Court may use a different valuation date such as the date of trial where appropriate.

New York state is an equitable distribution state which means that property and debt is divided fairly between the parties, not necessarily equally.  In shorter-term marriages, a division of the marital estate may more closely coincide with each party’s income to the total income of the couple.  In longer-term marriages, a division of the majority of marital assets will be equal between the parties.  This is particularly true when conventional assets, like bank accounts and investment accounts, are divided.

Non-Conventional Assets

However, when non-conventional assets are divided, like the value of a business created during the marriage, Courts are more likely to award the party who owns and operates the business with a larger share than 50% share of the asset.

One of the most fundamental tasks which a party in a divorce action will accomplish is the creation of a sworn statement of net worth, which identifies his/her sources of income, customary expenses, assets both marital and separate (meaning not created by marital efforts, like a gift from someone other than the spouse) in nature and debt obligations.  This document (coupled with underlying documentation) is the basis for the division of the marital estate and the awarding of support, if appropriate.

Once all of the information is gathered, then the parties through counsel can have meaningful discussions as to a resolution of the issues.  It is not uncommon for attorneys to rely upon additional mechanisms for gathering information, such as the use of subpoenas, examinations before trial and the like.  The goal is the same – to put a party in a position where he or she feels that they have all of the information necessary to enter into a voluntary and knowing agreement; or, in the alternative, to advance their position at trial before a trial judge.

“How Long Will This Take?”

One of the most frequently asked questions is “how long will this take?”   And the answer is closely connected to how quickly all of the information can be gathered and digested and how quickly are the parties able to reconcile their positions.  When, for whatever reason, an issue cannot be resolved by the parties, a trial date will be set and a trier of fact (judge or court attorney/referee) will make a determination based upon the evidence and the law.