Getting a divorce in New York State can be broken down into four basic steps. Each step is somewhat complicated, and an attorney can help guide you through the process.
Step 1: Once you’ve decided you’re going to get a divorce, your attorney will file an action for divorce in Supreme Court. We will file in a county that either you or your spouse live in. Once that paperwork is filed, your attorney will have a "process server" serve your spouse with that paperwork – more specifically, the summons, the verified complaint, and if there are children, a DRL 76H affidavit. Your spouse then has 20 days to respond to the verified complaint if they are personally served in the State of New York.
Step 2: Assuming that your spouse responds to the service of the verified complaint and other paperwork, your attorney and your spouse’s attorney will engage in some conversations about whether or not the divorce can be resolved without having to involve a judge and have a trial.
I note that Step 1 and Step 2 are actually interchangeable. Some people decide that they want to get divorced, they discuss the fact that they want to be divorced as a couple, and then, before they file for divorce, they come to an agreement, called a separation agreement. If they file for divorce and then come to an agreement, it’s called a settlement agreement. A separation agreement and a settlement agreement are essentially the same things. Both cover all of the necessary topics to make sure that your divorce can be granted.
The necessary elements of either agreement include:
(1) deciding on child support and whether or not it will conform to a statutory calculation set out by the Child Support Standards Act; (2) determining an amount for spousal maintenance and whether or not one spouse will pay maintenance to the other; (3) how to divide all the personal assets and debts, including loans, credit cards, houses, cars, personal property, and retirement accounts.
Once all those necessary issues are resolved, you can move forward and get an “uncontested divorce.” An “uncontested divorce means that everybody agrees on all the issues that need to be resolved by the divorce, and no trial is necessary. If those necessary issues can’t be resolved, then Step 3 takes place.
Step 3: An attorney for one of the parties will file a Request for Judicial Intervention, commonly referred to as an RJI. An RJI is a notice to the judge asking for a conference or asking for some form of relief. Usually, it means that the parties are going to go and meet with the judge and talk about all the different issues that need to be resolved, at which point the judge may or may not give some guidance on how those issues might be resolved. Even if no guidance is offered, the judge will almost certainly set a trial calendar. The calendar tells the attorneys that discovery has to be completed by a certain date and that a trial will happen on a different date.
Step 4: In Step 4, we see one of two things: Either the parties resolve all the issues that they need to resolve so that a divorce can be granted, or a trial happens. If the issues go to trial, a judge decides what happens with anything left unresolved by the parties.
If you have decided to get a divorce, or if you have been served with divorce papers, contact us to schedule a consultation. We charge a flat rate for initial consultations so that we can meet, discuss your case, and talk about a strategy. (585) 485-0025. It isn't free, but it is a valuable opportunity to start working towards a resolution.