Understanding the Divorce Process

By: Deborah A. Haendiges
Steven R. Sugarman

Making a marriage successful is hard work; the more you put into it, the more you tend to get out of it. Yet, some marriages will end in divorce. The following attempts to outline the steps an individual will likely go through during the divorce process.

1. The person requesting the divorce (the “Plaintiff”) usually hires an attorney.


2. The Plaintiff’s attorney usually prepares a document called a “Summons”, which is filed in the County Clerk’s Office and delivered to (is “served” upon) the other spouse. The filing and delivery of the Summons starts the divorce lawsuit and gives the New York State Supreme Court the power to act in the matter.


3. The spouse receiving the Summons (the “Defendant”) has twenty days to “legally appear”, usually with the help of his or her own attorney. The Defendant is in default if the attorney does not legally appear and, in such event, the Plaintiff may conclude the divorce ask the Judge for various relief without the input of the Defendant.


4. If the Defendant legally appears, the parties, through their attorneys, may exchange documents regarding the reasons (“grounds”) for the divorce.


5. The parties, through their attorneys, will exchange financial affidavits that seet forth under oath each party’s living expenses, income, assets and liabilities. Tax returns, pay stubs and other financial documentation will also be exchanged. So that the parties can understand the full financial picture, appraisals and other valuations of assets may need to be performed. Sometimes a deposition (also called an examination before trial or “EBT”) is concluded in which each party (and sometimes other witnesses) is questioned under oath at one of the lawyer’s offices about certain facts of the case. This fact-finding part of the case is called “the discovery process”.


6. The attorneys carefully explain to their clients throughout the case what his or her legal rights are. The clients are also made award of all of the financial facts of the case. In consultation with his or her clients, the attorneys may exchange settlement proposal letters. Various settlement conferences, either at court or at one of the attorney’s offices, may occur. If the settlement conference occurs at court, the Judge’s law clerk (an attorney who works with the Judge) or the Judge may help in the negotiation process. Such in-court settlement conferences usually occur outside the presence of the clients. The negotiations are often more efficient and effective without the interference of the emotional element of the split-up or the expectation of the clients that their attorneys must assume their anger.


7. If the case cannot be settled (or is only partially settled), it proceeds to a trial on the issues still in dispute. The Judge then makes a decision on such issues after hearing the evidence. Those issues, which can be resolved by settlement, are put into a written agreement.


8. Whether the case is settled or goes to a trial, any children of the parties may be appointed a lawyer (law guardian”) if any issues of custody, visitation or child support (sometimes) cannot be agreed upon. The law guardian will represent the children in negotiations or at trial.


9. These are the general issues that must be resolved in a divorce: Grounds (i.e. reasons for the divorce), custody, visitation, child support, spousal maintenance, equitable distribution of property and debts and attorney’s fees. Thee are many sub-issues within each of these categories that also must be resolved.


10. Once all parts of the divorce lawsuit are resolved, either by negotiated agreement or by the decision fo the Court, the parties are still not divorced. If the divorce grounds were not an issue at the trial, the Plaintiff still must take the stand at Court (outside of the Defendant’s presence), and testify briefly as to what the grounds of the divorce are. Where grounds are not disputed, the Court will almost always grant a divorce based upon very little testimony on the grounds.


11. The document, which ends the lawsuit, is called a divorce judgment. Parties are not divorced until this document is actually signed by the Judge. The judgment of divorce typically is granted by the Judge between 30 and 60 days after the settlement has been submitted to the Court or after a decision by the Court has been rendered. The judgment can be granted sooner under special circumstances. Any special orders that are necessary to divide retirement benefits of the parties are also signed by the Judge after the divorce judgment is signed.


12. Any settlement of the parties that is submitted to the Court is usually “incorporated but not merger” into the divorce judgment so that the terms of the agreement actually also become the terms of the Court’s judgment. Thus, if anyone violates the terms of the agreement, they are also violating the judgment. Either party may force the appearance of the other party in the future to the Court to account for any violations of the judgment.

The above steps are set forth, at the risk of oversimplification, to describe in general the divorce process. The attorneys in our matrimonial department have extensive experience and knowledge in the area of divorce law. We would be happy to answer any of your questions.