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Uncontested Divorce Procedures Manual for Pro Bono Attorneys

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Uncontested Divorce Procedures Manual for Pro Bono Attorneys Uncontested Divorce Procedures Manual for Pro Bono Attorneys Yi-jen Chang, Esq. Matrimonial/Economic Justice Project Deputy Director Uncontested Divorce Project Director Cynthia B. Rubin Matrimonial Fellow Center for Battered Women’s Legal Services Sanctuary for Families 30 Wall Street, 8th Floor New York, NY 10005 P. 212.349.6009, ext. 315 F. 212.566.0344 Email: [email protected] Website: www.sanctuaryforfamilies.org TABLE OF CONTENTS INTRODUCTION .............................................................................................................................................. 3 I. UNCONTESTED DIVORCE OVERVIEW ......................................................................................... 4 A. RESIDENCY ........................................................................................................................................... 4 B. GROUNDS FOR DIVORCE .................................................................................................................. 4 C. ANCILLARY ISSUES ............................................................................................................................ 5 II. PRIOR TO THE COMMENCEMENT OF THE ACTION ................................................................ 7 A. PREPARING FOR THE INTERVIEW ................................................................................................ 7 B. INTERVIEWING THE CLIENT .......................................................................................................... 8 C. DRAFT THE INITIAL PAPERS ........................................................................................................... 9 III. COMMENCE THE ACTION IN COURT ......................................................................................... 11 IV. SERVICE OF PROCESS ..................................................................................................................... 14 A. LOGISTICS ........................................................................................................................................... 14 B. CHALLENGES AND SOLUTIONS ................................................................................................... 15 V. PREPARE THE FINAL PAPERS ....................................................................................................... 16 A. POSSIBLE RESPONSES BY THE DEFENDANT ............................................................................ 16 B. DRAFT THE FINAL PAPERS ............................................................................................................ 16 VI. SUBMISSION OF THE FINAL PAPERS .......................................................................................... 19 A. STEP-BY-STEP FILING INSTRUCTIONS ...................................................................................... 19 B. NOTICE OF DEFECTIVE PAPERS .................................................................................................. 19 C. NOTICE OF INQUEST ........................................................................................................................ 19 VII. ENTRY OF JUDGMENT OF DIVORCE .......................................................................................... 21 LIST OF EXHIBITS ........................................................................................................................................ 22 2 INTRODUCTION Sanctuary for Families provides legal, counseling, shelter, and economic- empowerment services to survivors of domestic violence, sex trafficking and related forms of gender violence in New York. Sanctuary is the largest provider in the U.S. of legal services for this population. With the help of over 500 pro bono attorneys from the top New York City law firms, Sanctuary’s attorneys offer comprehensive legal advice and representation in a variety of matters. The Matrimonial/Economic Justice Project offers pro bono attorneys the opportunity to assist domestic violence victims in both contested and uncontested divorces. Divorcing an abusive spouse can be a liberating moment for a survivor of domestic violence. For many clients, divorce allows them to reclaim their previous identity that was systematically repressed by their abuser and empowers them through breaking free from the abuser. Divorce also affords them the right to sever all legal and financial ties with their abusive spouse. An uncontested divorce is generally when both parties agree to get divorced and they do not have any issue other than “getting divorced” (i.e. the ground is the only issue), or when both parties agree on all the issues or have resolved all the issues through having obtained family court orders, or when the Defendant fails to respond after being served and defaults in the divorce. The clients that you will work with have been screened by Sanctuary for Families, which has determined that these clients have been victims of domestic violence, that they cannot afford an attorney, and that their potential divorce cases are likely to be uncontested. This manual provides an overview of the uncontested divorce process. Sample uncontested divorce documents are also available for you to download on our Matrimonial/Economic Justice Project website: www.sffmat-ejp.weebly.com , under the “Pro Bono” tab, log in through the “Portal for Pro Bono Uncontested Divorces” link. You will need a password to access some of the documents. 3 I. UNCONTESTED DIVORCE OVERVIEW In New York State, the State Supreme Courts have jurisdiction over matrimonial actions. One must establish Residency, pursuant to DRL § 230, and have a ground for divorce, pursuant to DRL § 170 in order to be able to commence a divorce case in New York State. A. RESIDENCY The New York State Supreme Court has jurisdiction of the divorce if one of the following residency requirements is met: 1) The marriage ceremony was performed in New York State and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in the state for a continuous period of one year immediately before the action began; or 2) The couple lived as husband and wife in New York State and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began; or 3) The grounds for divorce occurred in New York State and either spouse is a resident of the state at the time of the commencement of the action for divorce and resided in this state for a continuous period of one year immediately before the action began; or 4) The grounds for divorce occurred in New York State and both spouses are New York residents at the time the action is commenced; or 5) If the couple were married outside of New York State and never lived together as husband and wife in this state and the grounds did not occur in this state then either the husband or the wife must presently be a resident of New York State and have resided continuously in the state for at least two years prior to bringing the action for divorce. B. GROUNDS FOR DIVORCE As for the grounds for divorce, which are legally acceptable reasons for the granting of a divorce by the New York State Court, Plaintiff has the following options to plead: 1) Cruel and inhuman treatment, DRL § 170 (1); or 2) Abandonment or constructive abandonment, DRL § 170 (2); or 4 3) Imprisonment for three or more consecutive years during the marriage, DRL § 170 (3); or 4) Adultery, DRL § 170 (4); or 5) Living separate and apart pursuant to a separation judgment or decree, DRL § 170 (5); or 6) Living separate and apart pursuant to a separation agreement, DRL § 170 (6); or 7) Irretrievable breakdown in the matrimonial relationship for a period of at least six months, DRL § 170 (7). For the purpose of securing a divorce and ensuring the divorce stays uncontested on the basis of the grounds chosen, we recommend that you proceed on the “no fault” ground, DRL § 170(7). Once the plaintiff so states under oath by the plaintiff’s sworn affidavit that the marital relationship is broken down irretrievably for a period of at least six months, the defendant isn’t able to contest the ground and the divorce will be granted when all ancillary issues are resolved. If you must plead any of the fault-based grounds other than “no fault,” make sure you have gathered all necessary factual details to meet the elements establishing the ground you wish to plead. Plaintiff will likely need to litigate the issue of grounds in court if the defendant does not consent to her stated grounds. There are few circumstances in which pleading a fault- based ground is strategically useful (e.g. when it advances our client’s position on other issues in the case). For instance, we may plead two grounds when custody and visitation are unresolved in a contested divorce. We plead “no fault” to secure a divorce and plead “cruel and inhuman treatment” to make sure the Court takes domestic violence into consideration when determining custody and visitation. However, when you handle an uncontested divorce case, please consult with Sanctuary’s Supervising Attorney if you consider pleading grounds other than “no fault.” C. ANCILLARY ISSUES Even if the plaintiff is able to establish a ground for divorce, the court will not grant a Judgment of Divorce unless all ancillary issues in the marriage are dealt with and resolved. As you will likely plead the uncontestable ground, which is no fault, these
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