What to Expect in a NY Divorce Court

Going through a divorce can be difficult and emotionally taxing. If you are divorcing in New York, you may be wondering what to expect in divorce court. Understanding the process can help you prepare for what may happen. At Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., we help clients navigate the legal and practical issues involved in divorce.

The Beginning of the Divorce Process

A divorce action in New York begins when one spouse, known as the plaintiff, files a Summons with Notice or a Summons and Verified Complaint in the New York State Supreme Court. The Supreme Court is the only court that can grant a divorce in New York.

The papers must then be properly served on the other spouse, known as the defendant. The defendant’s required response and deadline depend on which papers were served, how service occurred, and where the defendant was served. A person who receives divorce papers should review them promptly because failing to respond can result in a default.

If the spouses agree on property, debt, maintenance, custody, parenting time, and child support, they may submit an agreement and uncontested-divorce papers for court review. If issues remain unresolved, the case proceeds as a contested divorce and may require conferences, financial disclosure, motion practice, negotiation, hearings, or a trial.

Temporary Orders

Before the divorce is finalized, either spouse may ask the court for temporary relief. Depending on the circumstances, a temporary order may address custody, parenting time, child support, maintenance, exclusive occupancy of the marital home, payment of household expenses, protection from the transfer of assets, or attorney fees.

Temporary orders govern the parties while the case is pending and are not necessarily the final outcome. They remain enforceable unless modified, replaced, or terminated by the court. A party requesting or opposing temporary relief may need to submit financial information, affidavits, and other supporting evidence.

Court Conferences, Hearings, and Trial

Contested divorce cases commonly involve court conferences before any trial occurs. During these appearances, the judge may identify the disputed issues, establish deadlines, address discovery, consider settlement efforts, or decide pending applications.

If an issue requires an evidentiary hearing or trial, the parties may present admissible documents, testimony, and other evidence. Witnesses testify under oath and may be questioned by both sides. The judge then makes findings based on the evidence and applicable law.

Not every document a party brings to court will automatically be admitted into evidence. An attorney can help determine what evidence is relevant, how it should be obtained, and how it may be presented properly.

Deciding Child Custody

When parents cannot agree about custody or parenting time, the court’s primary consideration is the child’s best interests. The judge may consider factors including each parent’s caregiving history, the child’s relationship with each parent, the parents’ ability to provide stability, domestic violence, interference with the other parent’s relationship, and the child’s individual needs.

If the parents reach an agreement, the court will review it before incorporating it into an order or divorce judgment. The court is not required to approve an agreement that does not adequately protect the child’s interests.

In some cases, the court appoints an Attorney for the Child, formerly called a law guardian. The Attorney for the Child represents the child and ordinarily advocates the child’s expressed position when the child is capable of making a knowing, voluntary, and considered judgment. The Attorney for the Child is not an investigator or an advisor to the judge.

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Property Division

New York follows equitable distribution, meaning marital property is divided fairly after consideration of the statutory factors. Equitable does not necessarily mean equal.

Marital property generally includes property acquired by either spouse during the marriage and before the applicable cutoff, regardless of whose name appears on the title. It may include a home, vehicles, bank and investment accounts, business interests, and the marital portion of pensions or other retirement benefits.

Separate property generally includes property owned before the marriage, an inheritance, or a gift received from someone other than the other spouse. However, separate property can become difficult to trace if it is commingled with marital funds. In some cases, the increase in value of separate property may also produce a marital claim when the other spouse’s contributions helped create that increase.

If the spouses agree on property division, the court may incorporate their agreement into the divorce judgment. Otherwise, the judge will determine the classification, value, and equitable distribution of the property after considering the evidence.

Maintenance and Child Support

A court may award temporary or post-divorce maintenance, formerly called alimony. New York uses statutory formulas to calculate guideline maintenance up to the applicable income cap. The court also considers statutory factors when determining whether to adjust the guideline amount and, for post-divorce maintenance, how long the award should continue.

The purpose of maintenance is not to guarantee that both spouses maintain identical or comfortable lifestyles after divorce. The amount and duration depend on the governing formulas, the parties’ finances, the length of the marriage, earning capacity, and other legally relevant circumstances.

New York’s Child Support Standards Act generally calculates basic child support using the parents’ income and a statutory percentage based on the number of children. Child-care, health-care, and certain educational expenses may also be allocated. A court may deviate from the guideline result when legally recognized factors justify doing so.

Finalizing the Divorce

Once the ground for divorce has been established and all financial and parenting issues have been resolved by agreement or court decision, the court can issue a Judgment of Divorce. The judgment may incorporate or reference the parties’ settlement agreement, court decisions, custody provisions, support obligations, and property distribution.

The divorce becomes final when the Judgment of Divorce has been signed and entered by the appropriate county clerk. The parties must follow its terms. If someone fails to comply, enforcement proceedings may be necessary. Some custody, parenting-time, maintenance, and child-support provisions may later be modified when the applicable legal standard is satisfied, while property distribution is generally final.

How a Lawyer Can Help

A divorce lawyer can explain the court process, identify legal and financial issues, help obtain required disclosure, negotiate possible resolutions, and present evidence when judicial intervention is necessary.

Representation may be particularly important when the case involves custody disputes, domestic violence, substantial or hidden assets, real estate, business interests, retirement benefits, maintenance, or a significant difference in bargaining power between the spouses.

Understanding the divorce process can help you make informed decisions, but every case is different. Cole, Sorrentino, Hurley, Hewner & Gambino, P.C. assists clients with contested and uncontested divorces in Buffalo and throughout Western New York. Contact us to discuss your circumstances and legal options.