Many couples in New York decide to get a divorce. When this happens, there are often many issues to resolve prior to the divorce being granted. When spouses disagree on many different aspects of the divorce, it is considered a contested divorce.
Initial Filing
In a contested divorce, one spouse will file a notice with Summons or a Complaint and a Summons to start the divorce process. Once this is done, it is the legally accepted end to the couples marital period. It is also an end to their economic partnership. Once this is filed with a court, the spouse who is the petitioner has 120 days to serve the other spouse with the Summons.
Serving Summons
In the state of New York, the petitioner is not permitted to personally serve papers to their spouse. They will be required to utilize the services of an official third party. This could be a court-approved process server, an attorney and more. The Summons must be served within the required 120 day period. Once this task is completed, an affidavit of the service must be filed with the court within the next 30 days
Responding
Once a spouse has received the divorce paperwork from the petitioner, they will have up to 30 days to respond to it. The spouse could choose to accept the terms of the divorce. They also have the option of contesting them. When a spouse chooses to contest the terms of a divorce, they will respond with a legal document known as an Answer.
Relief Request
Once the Summons is served, it is possible for spouses to be required to appear in court for the purpose of seeking immediate or temporary relief. It is possible for this request to involve asking the court for exclusive occupation of the marital home. It could also involve a request for an award of custody, payment amount for support and more. These are considered Motions. The spouse who is making the Motion must provide the court with documentation proving their position on the issue.
Request for Judicial Intervention (RJI)
Once the petitioner has filed their paperwork with the court and received an Answer from the other spouse, they must then file an RJI. The purpose of this document is to be the official acknowledgment of both spouses being involved in a divorce. The RJI is a request for a court to assign a date for a preliminary conference. This must be done within 45 days after the RJI has been filed.
Preliminary Conference
The decision of which issues in a couple’s divorce will need attention is determined by the court. A date for an official hearing is set by the court. During this hearing, each spouse will be required to provide a statement of their net worth. This must be one at least 10 days prior to the beginning of the preliminary conference.
Discovery
Should the preliminary conference not result in an agreement between spouses on the divorce issues, the Discovery period will start. This is a time when attorneys from both sides will work to obtain evidence to support their client’s position on the issues. It is possible attorneys from both sides will have another meeting depending on what they discover. The completion of the Discovery must be done six months following the preliminary conference.
Settlement
It is possible after initial paperwork is filed for spouses to try and reach an agreement. They may agree to essential issues associated with their divorce including support matters, property, distribution of assets, custody and other issues. Should the spouses reach an agreement, they will have to sign a document referred to as a Stipulation of Settlement. It is also known as a Separation Agreement. It will determine the terms of the married couple’s separation. This is something that can be included in the final divorce judgment.
Granting Divorce
It is possible for a contested divorce to go to trial. When this happens, the issues could be resolved within a few days or weeks. This is determined by the size of a marital estate and how willing each spouse is to fight over the issues. When the trial is over, the judge will give their ruling. This must be obeyed. Should either spouse disagree with the judge’s ruling, they can appeal it to a higher court.
Every divorce situation is unique. Each contested divorce will have issues specific to the individual marital estate. A contested divorce is much easier with the help of an experienced New York attorney. They will know the legal process and a court’s expectations. A New York attorney will know how to get their client the best possible divorce with the least amount of financial struggle and emotional stress
What can I take if I move out before our divorce is finalized?
The #1 reaction most people when they are going through a divorce, is to leave the home they are sharing with their ex. It’s tempting to leave everything – but you have to be smart. You are convinced that moving out will make life easier, and that it will make your divorce easier. However, before you do that – think of the ramifications. It’s a good idea to speak to a divorce lawyer first.
In most cases, leaving the home early can hurt your case. There are several things to consider, before you pack up and move out. If you leave, you have financial issues – and custody issues to face. The marital home is your biggest asset. As long as the home was purchased while you were married, it’s part of your marital estate. Even if you leave it, you’ll still get your piece of it at the end. This may make you feel safe leaving it – but if your name is on the deed or the mortgage – you don’t need to leave. Moving out prematuraly can lead to financial complications. If you are the primary earner for the home, then it may be a bad idea to leave. If you leave, you’re still responsible for paying for the mortgage, and other such things. If you leave, the court can order a status quo order – which requires you to continue paying the marital bills as you did before the divorce. This means if you move out, you may have 2 sets of bills to pay now. On top of legal fees, this can be a devastating financial problem. It’s unavoidable, so it’s better to stay in the home while the divorce is going on.
Additionally, problems can be compounded when children are in the picture. If you’re living in the same home, and have daily interactions with your kids – when you move away, all of that disappears. You have less time to spend with the kids. It’s important before you leave with your belongings, you consult with an NYC divorce lawyer and get an understanding in place. Without an official schedule in place, you could wind up being not being able to see your kids ever.
If you don’t have a schedule that evenly splits your time with your children – it can result in future business problems. You may have to engage the legal system in order to get your kids back. In addition, you’ll be denied parenting time. You may even end up paying child support – because your spouse will say the kids stay with him/her – not you.
If you insist on leaving – here are the things you can take away from your marital home. Anything that would be deemed as exclusively yours; or anything paid for by exclusively your income – can be considered your property. For example, if you paid for your car using your own income – it could be considered your property – you can take it. But if your spouse paid for the item, you cannot take it without the spouses permission.
At the end of the day, you should only take what you rightfully need, and rightfully own. If it’s something which could be considered mutual property of you, and your spouse – you should leave it. For example, jewelry your spouse bought you should considered mutual property. You shouldn’t clean out the safe.
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