New York City Divorce Litigation Lawyers

What Happens First in the Divorce Litigation Process?

There are several steps to the litigation process; each one is completed in its own timeframe, which requires an element of patience and staying focused on a desired outcome. Most litigated divorces begin with the filing of a summons and supporting documents that are then served on the other spouse. Then, the parties will receive a date where everyone must come to court for what is known as a Preliminary Conference.

Prior to a Preliminary Conference, the parties should exchange Statements of Net Worth, sworn documents that detail the expenses, assets, and debts of each spouse. At the Preliminary Conference, the court will set down dates by which certain actions need to be completed, such as the exchange of tax returns and bank statements. This is the litigation road map. The spouses’ attorneys will inform the court of the contested issues in the case. In general, a Preliminary Conference is an opportunity to air some disputes before a judge or court attorney, and to put the litigation on a path that keeps it moving forward, with deadlines that need to be met. The primary function of a “PC” (in attorney parlance) is organizational.

In many divorces, the next step taken is the filing of a “motion” asking the court to make determinations as to certain core issues until your divorce becomes final – what is known as a request for “pendente lite” relief, meaning relief while a divorce is pending. These issues can be negotiated and agreed to by spouses, of course, but when such negotiations prove fruitless, a motion – a formal request of a court to issue an order – is the way to proceed.

The most common reasons spouses make pendente lite motions are:

• Payment of any temporary spousal maintenance or child support
• Occupancy of the marital residence
• Responsibility for payment of marital debt
• Establishing interim child custody and visitation
• Payment of counsel fees

The spouse opposing the request for relief will have a chance to answer the motion and bring their own motion for different relief if they so choose. In some cases, many motions will be made throughout the divorce litigation, involving financial and custodial issues and litigation-specific issues like discovery. Motion practice can consume a lot of energy and extend the time it takes to finalize a divorce, but often it is necessary if a spouse is being unreasonable or obstreperous.

What Is Discovery?

Discovery is the exchange, usually after formal written demands, of financial records of all types. Discovery also usually includes depositions, which are oral examinations under oath of each party, and sometimes of third-party witnesses.

In heavily litigated cases, discovery can be lengthy. In cases where one spouse appears to be hiding income or assets, discovery can also function as a “investigative” process, where a party can deeply probe the finances of the other party. While discovery in divorces can feel invasive, it is often critical for ensuring that you receive what you are entitled to receive, or to protect what is rightfully yours.

Common forms of discovery that you can expect to engage in include:

• Depositions. These are oral examinations under oath of each party and sometimes of third-party witnesses.
• Interrogatories. These are written questions designed to garner information related to financials, witnesses, business and personal activities during the marriage, and other information tailored to the allegations related to your divorce.
• Demands for Production. These are requests for documentation, much of which support answers to the interrogatories.
• Notices to Admit. These are written statements that can be admitted or denied as factual.

How Involved Will I Need to Be in My Case?

Your divorce attorneys are your front line when it comes to protecting your best interests during your case, but they cannot do it without you. The litigation process necessarily involves the client working with the attorney in various ways. Depending upon the issues involved in your specific case, some of what may be required of you will include:

• Gathering documentation related to matters of finance, health, children, employment, education, witnesses, and more.
• Being prepared for and attend depositions.
• Responding to discovery requests, which will also include securing other specifically requested documentation.
• Participating in forensic evaluations in contested custody matters.
• Preparing for your potential testimony.
• Attending hearings and your trial.

What Is Evaluated During Divorce Litigation?

Where there are real properties, businesses, pensions, professional practices or other tangible or intangible assets that are considered relevant to the marriage, professional evaluators are often retained, at the parties' expense, to do the necessary appraisals or valuations. In the case of contested custody matters, forensic psychological experts may be retained, also at the parties' expense, to evaluate the family situation with an eye to a court decision on custody, visitation, and other parental matters. In contested custody cases, an attorney may also be appointed to represent the interests of the children in the divorce action.

New York is an equitable distribution state, which means the financial split may not be equal, but it will be fair. To accomplish a proper division of assets, every detail of an asset must be assessed from financial records and future anticipated value to cost of upkeep and physical contents. The distribution of marital assets is a primary point of contention in many divorces, and involves much legal nuance – your divorce attorney will be key in advocating for a distribution that best suits your financial needs and is based on relevant circumstances.

How Are Support and Parenting Access Schedules Handled in NYC?

At the beginning of litigation there are usually issues relating to the support of one spouse and/or children during the lawsuit. Expenses like insurance, medical care, childcare, school expenses, and the like also must be addressed. In addition, parenting time with children during the divorce litigation must be arranged.

Oftentimes, these issues can be negotiated – indeed, many divorce lawyers can tell you about times they came to a resolution minutes before the judge handed down their decision. But many times, agreement is simply not possible. In these cases, issues of support and parenting time will be resolved by decisions issued by a judge.

What Conflicts Could Trigger a Hearing?

Many types of motions for interim relief can be decided by a judge based solely on the papers filed by the parties. However, some issues will require a formal hearing, where both parties testify and evidence is presented formally.

Many of the conflicts that can result in a hearing include:

• A determination of interim child custody
• Refusal to pay court ordered child support or spousal maintenance
• Denying a parent his or her visitation rights
• Exposing the children to substance abuse or other detrimental behavior

What Should I Expect at a New York City Divorce Trial?

Once discovery and evaluations are completed, if the case is not settled, it is set down for trial. A trial is different from a hearing – it is longer, and will address post-divorce issues, not issues relating to what happens while a divorce is ongoing. Trial may take place before the judge assigned to the case or before a Special Referee to whom all or some of the contested financial issues may be assigned. Depending on the complexity of the issues, trial can take days, weeks, or even months to complete.

Here are the steps you should take to prepare for a divorce trial in New York:

• Gather and Organize Documents: Collect all relevant documents, including financial records, asset and debt information, tax returns, bank statements, pay stubs, and any evidence related to your case. Organize these documents neatly and make copies.
• Create an Asset Inventory: Prepare an inventory of all marital assets and debts, including real estate, vehicles, investments, and personal property. Include details like value, acquisition date, and any evidence of separate property.
• Develop a Child Custody and Support Plan: If you have children, create a detailed child custody and support plan. Be prepared to demonstrate how your proposed arrangement is in the best interests of the child.
• Prepare Financial Statements: Both parties are typically required to submit sworn financial affidavits, such as the Statement of Net Worth, which details your income, expenses, assets, and debts.
• Identify Witnesses: Identify potential witnesses who can testify on your behalf, such as friends, family members, or experts who can provide relevant information to support your case.
• Consult with Experts: If your case involves complex financial matters or issues related to child custody, you may need to consult with experts like appraisers, forensic accountants, or child psychologists to provide professional opinions.
• Attend Mediation or Settlement Conferences: Before the trial, participate in mediation or settlement conferences if required by the court. These processes may help you reach an agreement with your spouse and avoid the need for a trial.
• Prepare Your Testimony: Work with your attorney to prepare your testimony, which should include a clear and concise explanation of your case, including any evidence or witnesses you plan to present.
• Dress and Behave Professionally: Dress professionally and behave respectfully in court. This can make a positive impression on the judge and can affect the outcome of your case.
• Familiarize Yourself with Courtroom Etiquette: Learn about courtroom etiquette and procedures, such as how to address the judge, when to speak, and how to present evidence.
• Understand the Law: Familiarize yourself with the relevant New York divorce laws, as they pertain to issues like property distribution, spousal support, child custody, and child support.
• Review Court Rules and Procedures: Study the local court rules and procedures that apply to your divorce trial. These rules will dictate how the trial will be conducted.
• Be Prepared for Cross-Examination: Anticipate tough questions from your spouse's attorney during cross-examination and work with your attorney to formulate strong responses.
• Stay Calm and Composed: Trials can be emotionally charged, but it's essential to remain calm and composed in court. Emotional outbursts can negatively impact your case.
• Follow Your Attorney's Advice: Listen to your attorney's advice and follow their guidance. They have the experience and knowledge to help you navigate the legal process effectively.

After trial, many judges require post-trial briefs by the parties' attorneys in which they argue why the facts proven at trial should lead to a decision in favor of their respective clients. An appeal to the Appellate Division and, in rare cases, a further appeal to the state's highest court, the court of appeals, is also available.

Personalized Legal Strategies for Your Divorce Case

At Berkman Bottger Newman & Schein, our team of experienced New York City divorce litigation lawyers understands that every divorce case is unique. We take the time to listen to your concerns, goals, and priorities to develop a personalized legal strategy that meets your specific needs. Whether you are facing a contested divorce, high-net-worth divorce, or child custody dispute, we are here to provide effective representation and advocacy on your behalf.

Our approach to divorce litigation includes:

• Thorough case evaluation to assess the strengths and weaknesses of your case
• Strategic legal planning to achieve the best possible outcome for your situation
• Open communication and transparency throughout the legal process
• Aggressive advocacy in negotiations and court proceedings
• Compassionate support and guidance during this challenging time

To speak with an experienced NYC divorce litigation lawyer, give us a call at (212) 466-6015 or contact us online today.