How Do I Divorce My Husband I Have Not Seen or Heard From in Three Years?
Full Question:
Answer:
The grounds for divorce in New York are:
(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of one or more years.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(4) The commission of an act of adultery.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation.
Under New York law, in order to commence an action for a divorce, a judicial separation, an annulment, or to declare the nullity of a void marriage, one of the following five residency requirements must be met.
1. The parties were married in New York, and either party lived in New York for one year prior to filing.
2. The parties resided in New York as husband and wife, and either party lived in New York for one year or more prior to filing.
3. The grounds for the divorce occurred in New York, and either party lived in New York for one year or more prior to filing.
4. The grounds for the divorce occurred in New York, and both parties live in New York at the time of filing.
5. Either party has lived in New York for two years or more prior to filing.
A divorce may only be granted by a court, and navigating through the courts means the rules of the court must be followed. The rules are contained in the Civil Practice Laws and Regulations, more commonly known as the C.P.L.R. To a much lesser degree, there are some procedural rules unique to divorces which are contained in the Domestic Relations Law, abbreviated as the D.R.L.
1. STARTING THE DIVORCE
The proper name for a divorce is “An action for a divorce.” Like all actions, a divorce action is commenced by the filing of a summons and complaint, or a summons with notice. C.P.L.R. §304. When the summons is filed, a fee of $210 is charged and a unique index number is assigned to the case. C.P.L.R. 306-a. All subsequent papers filed with the court must bear that number along with the caption. The spouse who files the divorce is called the plaintiff, and the non-filing spouse is called the defendant. New York divorce law requires that the defendant be personally served with the divorce papers, unless the court grants some other means of service. Note that there are special requirements for service of process in a divorce action. See C.P.L.R. §308 and D.R.L. §232.
2. THE PLEADINGS
The purpose of the pleadings is to give advance written notice to the opposing side so that they are aware of the allegations and what type of relief is being requested, so that a defense can be prepared if so desired and appropriate. In order to bring an action for divorce in New York, the
complaint must set forth one or more grounds listed in D.R.L. §170. In addition to the grounds, the complaint must also state what additional relief is being requested. Failure to request a specific relief in the complaint will preclude that party from seeking that relief at trial. It is possible to amend a complaint; delay in doing so may result in the amended pleading being rejected. Poorly drafted pleadings can also result in the divorce being dismissed, although this tends to be rare.
The pleadings consist of either two or three documents:
(a) The Verified Complaint
The verified complaint, which is prepared and filed by the plaintiff, must allege one or more grounds for the divorce (D.R.L. Section 170) and any ancillary relief. The most common secondary, or ancillary, relief is custody or visitation, child support, maintenance, equitable distribution, exclusive
occupancy, legal fees, expert fees, and any other appropriate relief as circumstances require.
(b) The Verified Answer
The answer is the defendant’s response to the complaint. It will admit or deny each of the allegations listed in the complaint. In addition, the answer may contain any affirmative defenses as a defense. If the defendant wishes to counter sue for a divorce, the defendant may assert a counterclaim as part of the answer. A counterclaim is exactly the same as a complaint in all respects – it is simply the defendant suing the plaintiff.
3. DISCOVERY
The longest phase of the divorce usually occurs between the pleadings and the trial. It is possible that the discovery phase can start before the pleadings have been completed, and in some cases, motions will be filed along with the pleadings, or during the discovery phase. The discovery schedule will be set during the preliminary conference, although discovery can begin prior to this conference.
(a) The Preliminary Conference
The preliminary conference is held early in the divorce to set a timeline for the case, identify which issues, if any, can be settled early on, set up any preliminary orders, and to deal with any other preliminary issues. Many preliminary orders are made with the consent of both parties. Absent such consent, a pre-trial order may only be requested by making a motion. The preliminary conference will set up the dates for the exchange of the following information:
Net worth statements
Appraisal of pensions
Appraisal of real estate
Document requests
Interrogatories (written questions)
Examination before trial (also known as depositions) (oral questions and answers recorded by a court reporter)
If there are children involved, the court will also determine whether the children need independent representation. If so, the court will appoint a law guardian to represent the children’s interest. The law guardian will be paid either by the State or by the parties, as determined by the court.
The date of the compliance conference is also set during the preliminary conference.
(b) The Compliance Conference
The compliance conference is another conference to ensure that both sides have all the necessary information necessary to go to trial. At the compliance conference, each side will either agree that discovery is complete, or request additional time to complete discovery. Depending on why discovery is not complete, the court has the option of whether or not to grant this request.
Once the court determines that there is not outstanding discovery, it will direct the plaintiff to file a note of issue and a certificate of readiness, which states the case is ready for trial. Shortly thereafter, the court will set a trial date.
4. MOTIONS
Motions are requests for a court order outside of the final disposition of the case which is made at the end of the trial. There are pre-trial motions, trial motions, and post-judgment motions. Motions are usually written, but in rare instances, the court may allow oral motions.
Most motions are pre-trial motions. The purpose of these motions is to request a court order compelling the other party to do something which cannot wait until after the trial is over. For example, compliance with discovery demands, temporary custody, temporary support, temporary
counsel, or expert fees are among the most common pre-trial requests made.
Once all motion papers are submitted, the court will issue a decision granting or denying the relief requested. In some cases, the court may allow oral argument to supplement the written papers.
For further information, please the article on motions.
5. THE TRIAL
After the case is marked trial ready, the court will set a trial date. Very often, a pre-trial conference is held to see if any issues can be settled or stipulated. (Example: to save time and expense, many times it is stipulated to use photocopies instead of original documents.) During the trial, the plaintiff will present his or her case first by testifying, calling witnesses, and submitting any documentary evidence in support of his or her position. The defense will have the opportunity to cross-examine the plaintiff’s witnesses. At the conclusion of the plaintiff’s case, the defendant presents his or her case, can testify, call witnesses, and present any documentary evidence.
At the conclusion of trial, the court will issue a decision, either in writing or on the record, which will address all issues of the divorce. At this point, most of the divorce is over, but additional paperwork is still required. It is important to note that the parties are still married at this point.
Following this decision, a judgment of divorce must be prepared and signed by the court. It is only when a judgment is signed that the parties are actually divorced. One side will prepare actual divorce papers, which mirror the exact terms of the decision. These papers consist of the “Judgment of Divorce” and the “Findings of Fact and Conclusions of Law.” To insure the proposed judgment and findings match the decision, the party who prepares the proposed papers must serve a copy of them to the opposing attorney to allow him or her to review them and make sure they accurately reflect the decision. This process is known as “settling an order or judgment.”
When issuing a decision, most courts will also direct that a judgment be “settled on notice.”
All original documents are located in the County Clerk’s office. Either party to a divorce can review the file and obtain a copy of any document therein. A certified copy is a certification by the court that a photocopy is a true and accurate copy of the judgment and findings, and is available for a nominal fee ranging from $4.00 to $10.00 per copy.
In New York, divorce files are not public records and are available only to the parties or their respective attorneys.
Your spouse must be served with a copy of the Summons and the Complaint. You must do this within 120 days. This means that a person other than you, who is a New York State resident, age 18 or older, must personally give him the papers. The server may be a friend, family member,
or professional process server. Summons may be served Mondays through Saturdays, but there is no service of process on Sundays. If your spouse lives in another state, you will need to follow the rules of that state. Call the local sheriff to find out how to have the papers served in that state.