New York Family Law Courts encourage divorcing couples to settle their differences. This includes working to settle issues surrounding financial matters, children, and other elements associated with the dissolution of a marriage. This is undertaken through the process of negotiation between the divorcing spouses, with the aid and assistance of their lawyers.
When spouses reach agreement in regard to issues in a divorce case, those decisions are incorporated into a settlement agreement, according to Cornell Law School. The settlement agreement is then signed by both spouses and submitted to the court for approval. The settlement agreement is made part of the final divorce decree, once it has been approved by the court.
You may have reached a juncture in your divorce case at which an attempt at settling the case is not working, at least in your mind. You and your spouse may have prepared a draft settlement agreement. Your spouse may have signed the document, but you have not.
You spouse may not be threatening to submit the settlement agreement to the court without your signature. You may now wonder what effect your spouse’s submission of a settlement agreement to the court without your signature.
A Settlement Agreement is a Binding Contract
At its essence, a settlement agreement is a binding a contract. A contract does not come into existence unless and until both parties have signed the document. If you have not signed the settlement agreement as of this time, for one reason or another, there is no binding contract between you and your spouse. Therefore, even if your spouse submits a settlement agreement without your signature to the court, that will not bind you to the agreement.
Further Court Proceedings
The submission of a partially unsigned settlement agreement to the court is likely to spur the judge to set the case for further proceedings. These could include a settlement conference involving the court.
A settlement conference before the court is a situation in which the judge brings the parties to a divorce together, along with their attorneys. The court will explore the possibility that the court can still be settlement. The judge is also apt to require the parties and their attorneys to spend some time discussing a settlement while at the courthouse.
If you do not reach a juncture at which you are willing to sign a settlement agreement, the final phase of a New York divorce case is a trial. The court ultimately will schedule the matter for a trial.
A divorce trial is quite like a trial in other types of cases. However, the primary difference is that a divorce trial is before the judge and not a judge and jury.
When a divorce trial occurs, both you and your spouse will have the opportunity to present your cases to the court. The judge will then make decisions regarding issues upon which you and your spouse have not reached an agreement in your divorce case. Ultimately, after considering all the evidence, the Family Court will issue a final decree in your marriage dissolution case.
Retain a New York Divorce Lawyer
Due to the complexities of a marriage dissolution case, you likely protect your legal rights and interests by hiring a skilled, experienced New York divorce attorney. The first step in engaging professional legal representation in your divorce case is to schedule an initial consultation.
At an initial consultation, a divorce lawyer will provide you with an evaluation of your case. Legal counsel will also provide you with more detailed issues about matters like a proposed separation agreement that you have elected not to sign. You will have the opportunity to raise any questions that you might have about your particular case or divorce law and Family Court procedure more generally. As a matter of general practice, a New York divorce lawyer typically does not charge a fee for an initial consultation.
Can he file for a divorce if I’ve already filed and served him papers?
Once you’ve filed for divorce and had your spouse served with papers, he won’t be able to file for divorce and will instead need to respond to your divorce petition. There are situations where two divorce petitions can go through, in which case one must be dismissed – typically whichever petition was filed later.
Here’s what you need to know about what happens when both spouses file divorce petitions.
How Your Spouse Could File for Divorce When You’ve Already Filed
After you file for divorce, a clerk will record that divorce petition, and it will be your responsibility to have your spouse served with the divorce paperwork. The length of time you have to serve your spouse varies depending on where you’re located. In New York, the limit is 120 days.
Let’s say that your spouse attempts to file for divorce after you’ve filed but before you’ve had him served the paperwork. If the clerk sees that you’ve already filed for divorce, they won’t let your spouse’s petition go through. If the records haven’t updated yet and the clerk doesn’t realize that you’ve already filed, then they will likely process your spouse’s divorce petition, at which point there will be two divorce petitions, one for each of you.
Once your spouse has been served, this is no longer a concern, as he wouldn’t be able to file divorce papers. This means that it’s in your interest to serve your spouse as soon as possible after filing for divorce.
What Happens When There Are Two Divorce Petitions
When you and your spouse each file for divorce, one needs to be withdrawn or dismissed. You two can negotiate to decide which petition will be withdrawn. If you can’t come to an agreement, then you can petition the court to dismiss your spouse’s petition. The court will typically dismiss whichever divorce petition was filed later.
Making a Counterclaim
When you file for divorce, you must include the grounds for divorce in the petition. Grounds are the reason for the divorce, and these will depend on whether you’re filing a no-fault divorce, which is available in every state, or a fault divorce, which is available in some states.
With a no-fault divorce, you’re not alleging your spouse was at fault. The grounds for a no-fault divorce are usually irreconcilable differences.
With a fault divorce, you’re alleging that your spouse was at fault for the divorce. You can then attempt to use your spouse’s actions to get a more favorable settlement in the divorce.
When you have your spouse served with divorce paperwork, he must respond in writing with his answer, where he can agree with your petition, deny it, or claim that he can’t agree or deny due to a lack of information. If he denies it, he can include a counterclaim where he presents his own grounds for divorce.
For example, let’s say that you file for divorce on the grounds of abandonment, alleging that your spouse moved out and hasn’t been home in three months. If he has a counterclaim that you committed adultery which prompted him to move out, he could put that in his answer. The case would then depend on the evidence each of you could present to the court.
The divorce process can be stressful and difficult, especially when you’ve never gone through it before. Sometimes spouses attempt to file unnecessary paperwork simply to bog down the process.
A qualified divorce lawyer can guide you as you go through a divorce. Your lawyer can help you get your petition filed properly, recommend a process server to have your spouse served and explain what to do if your spouse files for divorce after you. They could also go to the court in this situation to ask that your spouse’s divorce petition gets dismissed.