Litigation

Married couples who are contemplating divorce can choose a divorce process that works best for them. Those who can work together to reach an agreement on some or all the issues can participate in the Mediation process or the Collaborative Divorce process. Those who have a more contentious situation will divorce through a traditional litigation process.

What is Traditional Litigation?

Litigation is an adversarial process in which each party retains their own attorney and works independently to get the resolutions they want. This is the process used by divorcing couples who cannot reach an agreement and who may require the Court to settle the issues for them.

How Does Traditional Litigation Work in New York?

The process begins when one party files a summons and complaint for divorce in Court and has the other party served. The Court issues automatic orders, sets discovery deadline dates and establishes various Court appearances.

Automatic Orders. Automatic orders apply to both parties in the divorce as of the date of service.

Those orders include that:

• Neither party can move money nor dissipate money or encumber any marital assets.
• Neither party can terminate any family member from an insurance policy.

Child Custody. This is the first issue that must be resolved if there are children. The Court encourages the parties to agree between them about a custody arrangement. If this is not possible, each party will present their proposed plan to the Court and the Court will makes its decision based on what it determines is in the best interest of the children after reviewing all the evidence. The Court may appoint an attorney for the child or order a forensic exam of the children and the parents.

Child Support. After custody is resolved, the parties can agree or the Court can determine which parent pays child support to the other. New York State has child support guidelines.

Discovery Process. This process is regimented by the Court.

What generally occurs is:

• Real estate, including second homes if applicable, will be appraised to determine its value.
• If the parties own a business together, a value must be placed on the business. This can be accomplished by hiring a forensic accountant.
• All other marital assets, like the car, furniture, and even pets, must be valued.
• The Parties will exchange several years worth of documents such as bank and retirement statements

The Court encourages the parties to settle as many issues as possible.

The main issues are:

• Child custody and visitation.
• Child support.
• Equitable distribution of property.
• Spousal maintenance.

Trial. If the parties cannot settle any or all of these issues, trial will proceed and the Court will decide them for the couple after both parties have presented evidence supporting their position.

When a Traditional Divorce Makes Sense

Although traditional litigation is an adversarial process which ends up with “winners and losers”, there are situations where this is the best process.

Those circumstances generally are when:

• There has been domestic abuse, either one spouse against the other or one parent against the children.
• There has been financial abuse of any kind.
• One party has no access to the marital funds.
• There is a possibility of one party having hidden assets.
• There is a lot of hostility between the spouses, and they are unable to work together to come to a settlement of their issues.

At Rosenthal & Markowitz, LLP, we work with couples in Mediation, Collaborative Divorce, and Traditional Litigation. Contact us to schedule a consultation.