Long Island Family Law and Mediation Blog
Whether a case is settled before it is filed, after some litigation, or a Judge decided it, at the conclusion of the case a number of documents must be prepared, signed and filed with the court in order for the divorce to be finalized. These same documents are required throughout the state and regardless of the method used to decide the case such as mediation, collaborative law, litigation, or settlement negotiations. Therefore, in my practice as a Long Island Divorce Lawyer, or in my New York City and surrounding area cases, the same forms are used. The first document that always needs to be filed in a case is called the Summons. A divorce can be started simply by filing a Summons with Notice alone, in the local Supreme Court along with the payment of the filing fee to purchase an index number which is $210.00. A Summons is filed along with the Complaint, but when a Summons with Notice is filed the Complaint can follow at a later time. Both a Summons and a Summons with Notice dictate the time period for the spouse to appear in the case by serving a Notice of Appearance. A Summons with Notice must also contain the grounds for the divorce, be it the “No-Fault” or otherwise, along with a description of the ancillary relief that is requested such as child support, maintenance and equitable distribution of marital assets.
The Notice of Automatic Orders and Notice Concerning Health Care Coverage need to be attached to the Summonses. The Automatic Orders essentially provide that the status quo be maintained until written agreements or court orders otherwise are made. For example, retirement accounts can not be drawn upon and insurance that is in place must be maintained to name some of the orders. The Notice Concerning Health Care Coverage informs that upon the entry of the divorce that spouses may not be able to stay on the health insurance of their spouse. COBRA benefits are usually available for a period of time, however this comes at a cost.
A Verified Complaint needs to be filed and served. The Complaint sets forth if the residency requirements are met, the children of the marriage (if any), health insurance plans, grounds, if the ceremony was religious or civil, and the relief sought again. The Verification sets forth that the Plaintiff has read the complaint and that it is true and is signed before a notary public. If the parties were married in a religious ceremony, an additional document called the Sworn Statement of Removal of Barriers to Remarriage must be included in the filing package. Each party signs these before a notary to set forth that they have or will take any necessary steps to make sure the other side can get remarried in their religion.
An affidavit (if a party is representing themselves) or an affirmation (if the party is represented by an attorney) called the Affirmation (Affidavit) of Regularity must be included. The thrust of the document is to set forth that service was accomplished and how that was proved (by affidavit of service or admission). Whether or not the Defendant appeared and consents to the case being put on the uncontested calendar or if the Defendant is in default needs to be included. An Affidavit of the Plaintiff is always included. The Affidavit of the Plaintiff contains much of the same information as is set forth in the Complaint but it will also include how the case was resolved, be it by agreement, decision or default. Certain other information needs to be included such as if either side has been a party to an Order of Protection, whether anyone is a Sex Offender or has ever been in a Child Abuse or Neglect case.
The affidavit of the defendant is a sworn statement in which service of the initiating papers is established. The Defendant can set forth which papers he or she requests notice of for the completion of the divorce. Often the Defendant waives service of the further papers except for the signed copy of the Judgment of Divorce. Consent for the case to proceed immediately on the uncontested calendar is provided. Any ancillary relief that the Defendant wants, if any, such as the terms of child support, custody, equitable distribution is usually included. If there is any ancillary relief, it most often is set forth in a settlement agreement such as a stipulation of settlement or separation agreement. The contents of settlement agreements has been the topic of prior blog entries.
The Findings of Fact / Conclusions of Law and Judgment of Divorce are documents that are signed by the Judge but prepared by the submitting attorney or party. It will set forth the entitlement to and granting of the divorce based upon the proven grounds. If there are minor children, the terms of custody and parenting time must be included. What the child support will be, and if there is child support, the language that the Child Support Standards Act requires must be included. Essentially this language is what the guideline amount of child support would be and how it is calculated. Whether or not the child support amount conforms with the guidelines or is a deviation. If it deviates a valid reason to do so must be spelled out. Maintenance terms, if any, should be included as well as if the settlement agreement is incorporated into the terms of the judgment of divorce. The settlement agreement usually contains the details of property settlements, including the distribution of retirement assets, but they can be included in the Findings of Fact and Judgment as well.
The Certificate of Dissolution of the Marriage must be submitted, Part 130 Certification, Request for Judicial Intervention; Note of Issue and Affirmation of Regularity. Other forms that are often included, but not always required are: the Child Support Worksheet; Support Collection Unit Information Sheet; Qualified Medical Child Support Order; and the Child Support Summary Form. Knowing which forms to include and how to properly execute, file and serve them can be difficult matters best left to experienced matrimonial attorneys.
For more information about various matrimonial, mediation, collaborative law, and family law topics please click around the blog and our website. As always, people are welcome to call about their free initial consult. We would take great pleasure in talking to you about your questions.