22 March 2007
So You Want to Get a Divorce?
This will be a long post. I considered trying to figure out how to link a document online, then got distracted by my own fingernails. The following is a sort of study guide to matrimonial law I served up about a year ago to provide my replacements at my day job with what I hoped was entertaining background information on all they'd be involved with there, legally speaking. My day job has gotten very little attention on this here 'blog. Here, then, is the only time it will come to the forefront of subject matter, I promise. It's written as though speaking to a potential divorcee, but I use it to train the assistant in the hope it will endear them a bit to their demanding clients.
So, you want to get a divorce…?
So, you want to get a divorce? Well, the first thing you have to ask yourself is: Does my husband/wife feel the same way? It’s sort of like when you were contemplating marriage in the first place. (Remember those heady days?) You have to test the waters to see if you’re getting divorced alone or together. This will be important later. The first official thing you want to do (and this is where we come in) is:
CONSULT with a lawyer.
Like most fairly affluent people in the New York area, you’re not about to find a lawyer by surfing the web or cruising lawyer bars. No, you ask your friends for a recommendation. You ask your divorced friends, your accountant friends and your lawyer friends (ha ha), and eventually you get a recommendation. Let’s say it’s for a certain lawyer, Ms. Murgatrude Miggins, Esq. (henceforth “M&M”).
You call up and, because they’ve never heard of you before, they ask you who referred you. You are nervous, because hey, this is a lawyer’s office, and you don’t want anybody to know you’re getting divorced…but eventually the smooth-mannered assistant coaxes a name out of you, writes it down and eventually too, you speak to Murgatrude.
She tells you that she has to meet with you to really evaluate your case, and that this is called a “consultation,” the asking price for which is now $400. This sounds peachy-keen to you (as you are no doubt fairly affluent) and you set a date.
The day arrives, and you sit down with Ms. Miggins, Esq., and spill your innards about the situation. Assuming you feel good about your chances with M&M representing you, the next step involves two documents:
· Retainer Agreement
· Client’s Rights and Responsibilities
A five-page letter of almost entirely boilerplate text and printed on stationary, the retainer agreement is essentially a letter that lays out in some detail the relationship between M&M and her client. The information most usually changed involves the amount of the initial retainer payment, and of course the new client’s name and address wherever applicable.
Client’s Rights and Responsibilities:
A kind of acknowledgement form both the client and the attorney sign expressing an understanding of the various protections afforded a client by the State of New York. The assistant of M&M keeps copies already printed in the green-labeled form file at the base of the left-hand shelves.
You sign the retainer agreement and client’s rights and responsibilities and hand over your retainer payment, and walk out the door feeling very adult and responsible, though a bit more financially depleted. And you will be, immediately, because fast on your heels is the assistant crossing the street to M&M’s bank to deposit your retainer check. Afterwards though, he or she returns to the office and makes a new computer folder for you and an expanding file with your name on it, and likely six folders within labeled: Correspondence, Legal, Drafts, Net Worth / Financial, Retainer Agreement and Notes.
And hey, even if you don’t decide to retain M&M as your lawyer just then, for your $400—and at least an hour of your life—you get M&M’s notes from the session stapled together and filed alphabetically in an expanding file labeled Consults, located in the file drawer directly above the client files.
For those who do decide to continue, the adventure is just beginning!
PRELIMINARY WORK to secure your advantage.
So as we’ve established, you’re fairly affluent, but who wants to take chances with your money or property? There’s a possibility that this thing will come down to a fiscal bloodsport between you and your ex, and while you truly “just want him/her to be happy,” it doesn’t mean you should be condemned to live the rest of your life lonely in impoverished homelessness. If you were the main provider, you need to be prepared to protect some of your assets so they don’t go in entirety to supporting your ex and dependants in your former lifestyle. And if you weren’t the main provider of the family, you need to establish just how “weren’t” you were, and do so early in the process in order to get as much support as possible from your ex. To these ends, the document you need is a:
· Statement of Net Worth
A detailed form, to which your most recent tax returns are attached, which represents your metaphoric fiscal profile. The Net Worth Statement (henceforward “NWS”), as it is sometimes called, is divided into a basic outline of general life information, wage information, expenses, assets and liabilities. M&M usually gives you a blank NWS right out of the gate, and it is up to you to fill it out, but up to her assistant to get it saved into their database. If you are handed a paper copy, later her assistant will type it into the system, saved under your name. If you are emailed the form, just hopefully you’ll fill it out on your word processor and email it back, saving everyone a lot of effort and billable hours.
What else can I do to help myself out in this strange new land, you ask? Well, make sure you have copies of as much relevant financial information from you and your soon-to-be-ex’s life together, including tax returns, records of holdings, deeds, bills and statements. In addition, anything you can do to keep your new attorney on the case without upping your billable hours unnecessarily is great for you. Along these lines, it is definitely best for all concerned that you and your soon-to-be-ex have some kind of agreement about wanting to get divorced from the get-go. That’s not always possible, but it makes for an uncontested divorce, rather than a contested divorce.
Uncontested divorce — Oh sure, the love is gone, but that doesn’t mean we have to have the Supreme Court of the State of New York intervene to get anything done. We’ve talked it over, and it’s time to get a divorce. And listen: It’s not even like we don’t have spitfire argument over who gets what; it’s just that we can agree to disagree and let our lawyers do the negotiating. We’ll work this thing out, print up and sign an Agreement, file for divorce thereafter using a set of forms and documents collectively known as Uncontested Divorce Papers. And then we’ll be free to move on with our lives, having likely spent only what we paid in our respective retainer fees.
Contested divorce — I hate you. Oh, how I hate you. I hate you so much, I’m not even sure I want to give you the satisfaction of actually divorcing you. And I don’t care how many hours, dollars or tears it takes, I and my lawyer are going to make you suffer for whatever it was you’ve done to me. There’s going to be a Summons filed and served on you (or me, eventually), and after that motion upon motion: Affidavits and Affirmations, Orders, Stipulations and Statements, Notices of every shape and color, Requests for Judicial Intervention, Demands and Interrogatories, Subpoenas and Verified Complaints. It won’t end until we’ve spent all of each others’ money, or you’ve died of blood loss from all the paper cuts. Then, maybe, we’ll draft an epic Agreement, only to have to submit a Modification Agreement weeks later, and when the dust finally settles all that will be left to hear is our lawyers bickering over which of them should have to draft and file the final Divorce Papers.
An UNCONTESTED DIVORCE: tricky, but reasonably civil.
Your uncontested divorce may involve preparing and filing some of the papers more commonly associated with a contested divorce, in which case the first thing to be filed would be a Summons, in order to get the case registered and acknowledged by the Powers That Be. Then you’d proceed to whatever you needed. But chances are, unless there are discrepancies in your ex’s NWS or there’s a general feeling of mistrust about the whole process, it will just be document production and negotiation regarding child support and maintenance payments, real estate and equitable distribution of property from here until you have a final draft of your Agreement.
They go by many names—Agreement, Settlement Agreement, Stipulation of Settlement and Agreement—but essentially they are all about two crazy kids coming to a common (and legally binding) resolution about how they’ll divide and live their separate lives. It’s usually a pretty lengthy document, anywhere from 10 to 80 pages, and divided into different titled “articles.” It does not get a back (blue) like every other legal document we deal with.
Most of the work behind an Agreement is done by the lawyers themselves in consultation with their clients and negotiation with one another, either telephonically or in meetings with or without their clients. As a client, you just have to know what you will and won’t accept in a deal, communicate that clearly with your attorney and be readily available to him or her when they need to ask you questions, procure documentation from you or send you a draft for your approval. The rest is the assistant’s domain, just making sure the calls get through and the changes get made to the document in a way that doesn’t sabotage the rest of its numbering and formatting.
And then bing! Bang! Boom! It’s done. You’ve settled the matter, everyone has signed with a notary (M&M) present and the copy of the Agreement to be sent to the Court has both of your initials on every page and next to any handwritten changes made to the text. Pop the bubbly and go spend the night with your new/old girl/boy friend, right? Well, not quite, I’m afraid. Before you’re officially divorced, there is still the dread:
· Uncontested Divorce Papers (UDPs)
Fortunately for you, these papers require little-to-no additional input from you, as most of the information in them has been determined from information you’ve already shared and the very Agreement you finally reached. Unfortunately for you, these “papers” are numerous (anywhere from 12 to 18, depending on whether children are involved) and when they are actually filed is up to the whimsy of the attorneys involved…and they’re not really getting any more money from you. So pester them. Bug them. Know who’s doing what and how. Here for you is a list in no particular order of everything that goes into a set of UDPs:
· Note of Issue
· Notice of Settlement and Proposed Findings of Fact
· Notice of Settlement and Proposed Judgment of Divorce
· Plaintiff’s Sworn Statement of Removal of Barriers to Remarriage
· Defendant’s Sworn Statement of Removal of Barriers to Remarriage
· Verified Complaint
· Affidavit of Plaintiff
· Affidavit of Defendant
· Affirmation of Regularity by Attorney
· Certificate of Dissolution
· Original Settlement Agreement
· Request for Judicial Intervention
· Plaintiff’s Affidavit of Facts and of Children’s Residence *
· Qualified Medical Child Support Order *
· Child Support Summary Form *
· Self-Addressed Stamped Form Postcard
* – Not included where parties have no children as a result of marriage.
Each document (not forms, though) gets its own back, and each has to be signed by somebody, and conform all their language between them and the other papers and the Agreement, and certain of them need what’s known as an Affidavit of Service attached to them, and probably at least three copies of the entire set need to be produced. In other words, it’s a lot of intricate, exacting, boring work that no one wants to do and most will procrastinate endlessly on. And yet, you’re not actually divorced until these UDPs are not only produced but filed properly with and approved by the Court.
That having been done, you’re done! Congratulations! You may now court whomever you choose, and the whole world can know about it! Oh, wait. You say your once-significant other physically abused you and you want money for damages? Or that said other has moved out and won’t talk to you, even about the sweet relief of divorce? Oh. Well then, what you need and will get is:
A CONTESTED DIVORCE: twice the money, half the results.
Oh bejeezums; you went and got yourself in a sticky spot, didn’t you? How could anyone involve themselves in a relationship that could go oh-so-wrong, and once having done so, how could said hypothetical anyone not work to remove themselves from such a situation sooner? Well, if difficult questions could be listed as assets on your NWS, you would certainly be rich as Croesus. Sadly, such is not the case. There are most likely few answers for you, either, but following are some types of legal documentation you should know, as you are likely also to need them in the very near future.
· Summons (With Notice)
This is what sets the ball in motion in terms of your matrimonial action. When one files a Summons, one also needs to fill out two forms, which your helpful assistant has copies of in his or her forms file, located under the left-hand set of shelves in his or her office. The first is a plain old piece of paper, called an Index # Cover Sheet. The second is printed on carbon paper, and is dubbed an Index # Purchase Form. Additionally, you will need a check for $210 (as of 8/05) made out to the appropriate County Clerk with whom the Summons will be filed. Once it’s filed and the Index # is purchased, every copy of the Summons must be standardized with the Index # and date of its purchase.
Then it gets really exciting. The Summons must be served upon the other party for the action to get active. This is either done via a service provider or by hand, by the assistant. But the assistant is rarely enlisted, and of course may refuse this task. This leads us to our next enthralling, all-purpose legal document.
Simply put, this is the basic document upon which all proof and argument in matrimonial law is established. It’s used for anything voiced in the first-person that’s not “spoken” by a lawyer. That means that if it’s a client’s, assistant’s or even a messenger’s, it’s said in an Affidavit. This also means there are something of an endless variety of the things. Here are some examples:
Affidavit of Service (AoS)
This is the Affidavit an assistant will likely use the most. It also looks completely unlike any other Affidavit, lacking in the usual case heading and numbered-paragraph format. Often, you will find your attorney’s assistant’s name on your AoS. This is because the purpose of an AoS is to attach it to another legal document, one which you’ve sent to the adversary. The AoS is in essence a testimony of the sender, saying, “Yes, boy-howdy, I sure did send that Order to Show Cause to this attorney at this address by mail/messenger/FedEx/personal service/facsimile/trans-meditative state.” Because of the variety of methods of sending said AoS…es, there are also different forms of AoS for each method of delivery.
Affidavit of Plaintiff, or Plaintiff’s Affidavit (or Defendant’s, etc.)
This follows the basic format of every other Affidavit you might run into. It has the standard heading, with case title, Index #, Court and County, and the rest of the document is written in the first-person and formatted with numbered paragraphs, with a signature line at the end for the “author.” You get yourself an affidavit one of two ways. Either your attorney bases it on the notes he or she has taken and drafts it him/herself and submits it for your approval, or he or she bases it on a narrative they’ve asked you to write for them about the ordeals pertinent to the case. The best way to scribe such a narrative is to keep it factual and concise, but not without emotion where appropriate, and to email it so the language can easily be cut and pasted into your Affidavit. This saves everyone time and effort.
The rest of the types of Affidavits are fairly well explained by their titles, and all generally follow this format. Some examples:
Affidavit of Facts and Children’s Residence
Affidavit in Support of Motion
There is a document that usually goes with any Affidavit coming from a client such as yourself, and it is known as an…
This comes from your attorney, and is almost a carbon copy of the appurtenant Affidavit, only it’s in the “voice” of your attorney instead of you and cites more legal language and cases at certain points. It looks virtually the same; only the title and specific language differ. It’s important that this document match, in sum and substance, every point you have to make in your Affidavit. Obviously, it’s not necessary in the case of AoSes and the like.
This is typically quite a short document (how novel) and is a bit like doing the typing for whichever Judge is presiding over your case. In essence, it is what you want the Court to sign off on, to make happen for you. It is usually backed up by an Affidavit, an Affirmation and some Exhibits, all stapled into one back and collectively referred to as an Order to Show Cause (OSC). Orders have a special text in the upper-left corner of the first page designating the particular Court address and room, and the signature line is for the Judge. Additionally, once the lawyer gets a signed Order back from Court, the assistant often has to copy the pages that are amended and signed by the Judge and attach them to any office copies of the Order.
Similar to the Affidavit, this is an all-purpose document used when asking for a change of circumstance or basically anything more minor than an actual Court Order. It is often comparable to a “mini-Agreement,” in that it is something which both parties (hopefully) sign in agreement of. Examples include:
Stipulation (plain ol’)
Stipulation Extending Time to Serve Complaint
Exactly as it sounds, a simple statement of fact(s). The NWS is such a document, although highly formatted. Usually Statements look rather like Affidavits…only they’re Statements.
As it sounds, a document making known certain facts or occurrences in a given case. A Notice of Entry announces to all concerned when a particular document was filed in Court (these are attached to the Judgment of Divorce, and Findings of Fact and Conclusions of Law, in the UDPs), and a Notice of No Necessity announces any waiving of normally procedural requirement from the other side.
· Requests for Judicial Intervention
This is when the S. H.’s the F. in a big way. It is more a form than a document, though it is often accompanied by an Affidavit of some sort explaining the situation in greater detail. This document is used to get the Court’s attention in deciding something (said something often being a sort of punishment one attorney wants to inflict on the other for their bad conduct or tardiness) that the lawyers themselves can’t resolve and aren’t willing to negotiate any longer. This form is also filed with UDPs, in that it’s simply procedural when filing papers that require immediate decision.
· Demand for Production of Documents and Interrogatories
These are often directly related to the NWS, in that they’re used when your attorney has reason to suspect that your ex may have something to hide in terms of his or her financial status. These are a matched pair of rather lengthy documents that do what they say. The first demands very specific financial records, the second makes general inquiries into financial status and development. They are used in determining support and maintenance issues on both sides. The corollary to them are Responses to same, which are made far easier when the adversary is willing to email the documents to your attorney, because then his or her assistant just has to copy and paste the demands and inquiries into a new document and insert the answers provided by said attorney.
A document more commonly used in connection with the accused and witnesses in a criminal case, Subpoenas are nevertheless occasionally needed in matrimonial affairs. Generally a Subpoena is used to call a person or business entity in to take testimony from, either in the Court or in one of the attorney’s offices. This is another document for which service will be needed, and that service will undoubtedly be provided by an agency accustomed to handling such things, as it is a highly popular hobby in New York to attempt to avoid service of a subpoena.
· Verified Complaints
Yet another document included in UDPs, a Verified Complaint is used in that regard to list very simply the causes justifying a Judgment of Divorce and concisely state what relief is being sought for those reasons. In other contexts, a Verified Complaint can be used simply to get a complaint the party has on record with the Court, regarding anything from excessive lying to physical abuse.