DIVORCE LITIGATION

The hallmark of divorce litigation is that a Request for Judicial Intervention to have a judge assigned to adjudicate the case is filed prior to the parties entering into an Agreement.

A divorce action can only be filed in Supreme Court, not in Family Court.

Nearly all divorce cases in New York are filed under the no-fault grounds of DRL §170(7):  irretrievable breakdown of the marriage for at least 6 months, so the grounds itself is not what needs adjudicating. In order to proceed with a no-fault divorce, all ancillary issues must be resolved.

What is, therefore, litigated is what is referred to as “ancillary relief” issues to the divorce, which can include aspects such as:  equitable distribution/property and debt allocation; spousal support; child support; child custody; exclusive use and occupancy of the marital residence; maintenance of health insurance and life insurance policies; attorney’s and expert fees.

There is much misconception surrounding what divorce litigation entails.

Filing a Summons for Divorce is the step needed to initiate a divorce action, but that step does not trigger divorce litigation.

Divorce litigation typically ensues when a Request For Judicial Intervention is filed with the court in one of two ways:  1) a request is made for a Preliminary Conference with the court; 2) a motion for pendente lite relief (pendente lite means during the pendency of the action, interim relief may be sought) is made by one of the parties requesting any number of reliefs, such as spousal support, child support, an interim parenting schedule as well as decision making impasses relating the children, exclusive use and occupancy of the marital residence, and attorney’s fees.

A Preliminary Conference is when the parties and their attorneys meet with the judge and the court attorneys for the first time and create a framework for the case in a Preliminary Conference Order that is signed by the judge. Such framework includes a discovery schedule, where the parties will exchange necessary information such as financial documentation, the court sets a timeline for future conferences, and the court may determine whether an attorney for the child, forensics or other experts will need to be appointed.

At the time of the Preliminary Conference, each party must file a sworn Statement of Net Worth with the courts setting forth their expenses, assets, and liabilities. The expenses are often used to create a standard of living analysis for support calculations. The assets and debts must specify when they were first acquired or assumed, their respective amounts on the date of marriage, date the divorce action was commenced, and date the parties signed their respective Statements of Net Worth. It is a laborious document for most people to work on and properly fill out, and it must be updated with the courts when there are changes.

The court then monitors the case with a tight leash via a series of court compliance conferences, where they meet with the attorneys and parties for follow-up conferences to ensure the case is moving forward in a steady and methodical fashion towards resolution, and each side as well as the court is getting the information and documentation they need to settle issues.

Discovery ensues throughout the litigation. Discovery can include Notices for Discovery & Inspection of financial records and books and any other relevant information, Notices to Admit, Interrogatories, Depositions, Subpoenas.

Most cases do not go to trial. The vast majority of cases settle somewhere along the way, often with the judge trying to pressure the parties to settle. Currently, there is a wave in favor of mediation, and some judges send every other case on their docket to mediation for resolution. The courts have heavily congested caseloads, and it is more expeditious for them and an ease on the court’s resources to try to encourage the parties to settle rather than sit on the court docket for what could be years, if the case does not settle and is routed towards trial.

That being said, there are times when settlement does not transpire because the parties are too far apart, and the parties need a judge to decide for them and so-order them on the terms of their divorce. In these cases, the judicial system can be a blessing because it ensures a resolution when one would otherwise be elusive or impossible. Judges try to make good decisions with the information before them, and while they can be highly fallible, and it is an imperfect system, it works for some instances.

Divorce law involves people’s unique stories and narratives. The statutory guidelines bestow upon judges broad discretion to make determination they deem appropriate given the facts presented. We have all seen occasions where the judge seemed to twist the law into a pretzel to render the outcome they wanted, for example, an outcome that favored the more sympathetic spouse.

Notably, divorce litigation is not for the faint of heart. You need to gird yourself to be antifragile and strong through the process. You also need the funds for it, as costs can escalate quickly, especially during prolonged litigation on complex, sophisticated, multi-faceted financial cases or cases where custody disputes are at play.

While there is a presumption under DRL §237 & §238 that the monied spouse may have to pay towards the non-monied spouses attorney’s fees, it is discretionary and when awarded, only part, and not all, of the fees are typically awarded.