Uncontested 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

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INTRODUCTION

Sanctuary for Families provides legal, counseling, shelter, and economic- empowerment services to survivors of , 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 . Divorcing an abusive 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.

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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 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 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

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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 ancillary issues usually determine whether a divorce case is contested or uncontested.

A divorce is uncontested when both parties agree to being 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 ancillary issues that we must examine and address are:

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1) Children

a. If the parties have any child under 18, the issues of custody and visitation must be resolved by prior family court orders, by the defendant’s consent or by default; and

b. If the parties have any child under 21, the issues of must be resolved by prior family court orders that are less than three years old, by a stipulation entered by the parties, or by a child support worksheet if the defendant defaults.

2) Maintenance. Maintenance must be waived by the parties to make the divorce a straight-forward uncontested one. If one or both parties is seeking maintenance, which is the term for “” under New York State’s Law, then certain discovery followed by negotiation and/or litigation is inevitable, because the issue of maintenance needs to be determined either by a settlement after negotiation, or by the Court’s determination after litigation.

3) Equitable Distribution. If the parties have marital assets and/or debts, the issues of equitable distribution of marital assets and/or debts must be waived, which makes the divorce uncontested, or determined either by a settlement after negotiation, or by the Court’s determination after litigation, which will make the divorce contested.

4) Other. Other ancillary issues, including but not limited to counsel fees, expert costs, and expenses, must be waived or determined as well. If they are not waived, this divorce action is likely to be contested.

6 II. PRIOR TO THE COMMENCEMENT OF THE ACTION

A. PREPARING FOR THE INTERVIEW

Once your firm’s conflict check has cleared, you will work with your firm to prepare a retainer or an engagement letter for your client. Most Sanctuary clients have never read a formal engagement letter before, and so we suggest that you review the engagement letter with your client during your first meeting (or over the phone if you prefer to have the client sign before your first meeting) and make sure she understands everything in the letter before signing.

You should schedule an in-person meeting with your client as soon as possible. Your interview will allow you to gather all necessary information and documents that you need to determine how to proceed with the case and to prepare the initial papers and final papers. We have provided you a suggested interview outline for your reference. See Exhibit A (Client Interview Outline).

Before the interview, you should review this entire manual, the suggested interview outline, and the client’s intake and/or documents that have been provided to you by Sanctuary for Families. We also recommend that you read the article, “Interviewing and Assisting Domestic Violence Survivors” by B. J. Cling & Dorchen A. Leidholdt, See Exhibit B (Interviewing and Assisting Domestic Violence Survivors). Make sure you have a private office or conference room reserved for the meeting. Remind your client to prepare and bring the following documents if she or he can:

1) Regardless of client’s income, client should bring proof of both parties’ income, such as pay stubs or tax returns, if possible.

2) If client is on public assistance, client should bring benefit card and monthly budget.

3) The following vital documents/information for client and all the children, and if possible, the spouse: a. Social Security Numbers. b. Birth certificate c. Medical insurance plan and ID numbers.

4) .

5) Divorce decrees from prior .

6) One or two recent pictures of the spouse to assist in personal service on the spouse.

7 7) Orders of Family or Criminal Court (Protection, custody, visitation, child/spousal support). If available, bring the petitions. a. If client does not have a copy of any existing order, client should go to the family court where the order was issued and obtain a copy at the Record Room. b. If client is on public assistance, the Commissioner of Social Services may have commenced a child support case on behalf of client against the non-custodial parent. These kinds of cases are only filed in Manhattan Family Court. Client may not know for sure whether there has been a child support order entered on client’s behalf. Please send client to Manhattan Family Court Record Room to inquire and obtain a copy of the Child Support Order, if available.

8) Police reports (Domestic Incidence Report)

B. INTERVIEWING THE CLIENT

During the interview, you should first make sure to address any questions that the client may have regarding the engagement letter or the retainer if they have not been addressed before the meeting. Second, you may want to have your client sign an authorization for you to access her/his information, records, and documents in Criminal/Family/Supreme Court on any relevant prior case on which you are not the attorneys on the record. You may need the authorization at some point in the course of this divorce case especially when client is not able to provide all necessary prior court orders. See Exhibit C (Sample Authorization to Access Record).

Sanctuary for Families will have provided the client’s intake and/or relevant documents to you when assigning the case. However, as the intake was likely done a while ago and because circumstances may have changed or new information may surface, we suggest that you carefully verify all existing information on the intake during your interview. The suggested interview outline aims to gather with all essential information for both the initial papers and the final papers. We recommend that you do not skip any questions.

At the interview, you should be able to make a determination regarding whether your client is eligible for a fee waiver for the filing fees payable to the Court. If the client is on public assistance, the client is eligible for a fee waiver. Otherwise, Sanctuary for Families, as a non-for-profit legal service provider that serves indigent clients, can assist you to determine client’s eligibility based on her/his income and the size of household, especially the dependents supported by the client.

If client is eligible for a fee waiver, Sanctuary for Families will prepare the Poor Person Certificate and provide it to you, so you can present such certificate in court to waive the filing fees. See Exhibit D (Sample Poor Person Certificate). If client is not eligible, the filing fee for the initial papers is $210 and for the final papers is $125.

8 At the interview, you will also determine whether a Motion for an Order to Maintain Plaintiff’s Address Confidential needs to be filed along with the initial papers. If the defendant does not know the client’s current address and client wishes to maintain her/his address confidential for safety reasons, you need to prepare this motion. If the motion is granted and the Order is entered, throughout this divorce action, the client’s address, including her/his social security number if the defendant doesn’t already know about it, can be kept confidential.

Lastly, at the interview, as you complete the interview and answer your client’s questions, you should confirm with your client again regarding the grounds to be pled and the issues in the divorce. Client has been advised during the initial intake with Sanctuary for Families. If you are not able to advise client, Sanctuary’s Supervising Attorney is available to assistant you. When your client confirms that she or he will waive equitable distribution and waive maintenance, you should ask your client to sign a waiver to such effect and keep it in your file. See Exhibit E (Sample Equitable Distribution and Maintenance Statement).

After the interview, should you have any questions or concerns, please do not hesitate to reach out to Sanctuary’s Supervising Attorney to discuss. If your client has other legal and non-legal needs, such as immigration issues, counseling, public assistance, housing, shelter, clothes and/or food etc., please Sanctuary’s Supervising Attorney as Sanctuary may be able to assist client directly or refer the client to other outside resources.

C. DRAFT THE INITIAL PAPERS

For an uncontested divorce, the initial papers include the following:

1) Summons with Notice

Summons with Notice must be accompanied by the Notice of Automatic Orders, the Notice regarding health insurance, and the Notice of Guideline Maintenance. See Exhibits F1 and F2 (Sample Summons with Notice).

2) Sworn Statement of Removal of Barriers to Remarriage (if applicable)

This document is required if the marriage was performed by a clergyman, minister or leader of the Society for Ethical Culture. See Exhibit G (Sample Sworn Statement of Removal of Barriers to Remarriage).

3) Affidavit of Defendant

See Exhibits H1-H2 (Sample Affidavit of Defendant).

4) A cover letter to the Defendant

See Exhibit I (Sample Cover Letter to Defendant).

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5) Affidavit of Service

See Exhibit J (Sample Affidavit of Service).

6) A cover letter to the person who will serve process

Depending on how you plan to serve process, you should draft a proper cover letter to provide information and instruct the person, be it a lay-person who is not a party in this action, over the age of 18 and a New York State resident, or a sheriff, or a private process server or the prison if the Defendant is incarcerated. See Exhibits K1, K2, and K3 (Sample Cover Letters to Arrange Service).

7) Motion for an Order to Maintain Plaintiff’s Address Confidential(if applicable)

This Motion is fact-based. The client must provide details regarding incidents of domestic violence and attach supporting documents such as orders of protection, police reports, etc. as exhibits. The client should state when they separated, why the spouse does not know client’s current address since the separation, and the reasons for the confidentiality request, such as safety concerns. See Exhibit L (Sample Confidentiality Motion).

8) Request for Judicial Intervention and/or addendum (if applicable)

If the attorney is filing a Motion for an Order to Maintain Plaintiff’s Address Confidential, a Request for Judicial Intervention (“RJI”) must also be completed and filed in court as well. If the parties have any minor children under 18, an RJI addendum is required as well. See Exhibits M1-M2 (Sample RJI and RJI Addendum).

9) Child Support Standards Chart (if applicable)

If the parties have any child under the age of 21, you must serve the Defendant a copy of most recent version of Child Support Standards Chart, even if the parties have a final order of child support issued by the Family Court and you seek to continue this final order of child support. See Exhibit N (Sample Child Support Standards Chart).

After you complete the drafting of necessary initial papers, Sanctuary’s Supervising Attorney is available to review your drafts and provide feedback and comments to you. You will schedule another meeting with your client to review the initial papers and for her/his signature if applicable. Contact Sanctuary’s Supervising Attorney for Poor Person Certificate if applicable.

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III. COMMENCE THE ACTION IN COURT

Most likely you will file in New York County Supreme Court, located at 60 Centre Street, New York, NY 10007. As such, the step-by-step instructions we provide within are specifically applicable in New York County Supreme Court, such as room numbers, although the general procedure applies to other boroughs. When you arrive in court, you should ask the court clerk if you have any questions or if you need additional direction.

If you are filing the motion, you need to make two trips. The first trip is to file the motion. The second trip, usually 3-5 days after the first one, is to pick up the signed order to maintain plaintiff’s address confidential and to purchase an index number by filing the summons with notice. If you are not filing the motion, skip to the second trip, step (iv), which means you will go straight to Room 141b.

The following are the detailed steps for filing the initial papers:

1) The first trip: file the Motion to Maintain Plaintiff’s Address Confidential:

i) Make sure you bring a photo ID and attorney secure pass, and all necessary documents:

 The Original copy of Motion + 1 extra copy;  The Original copy of RJI (and RJI addendum, if applicable) + 1 extra copy;  A proposed copy of Summons with Notice (not the original copy)  Poor Person Certificate (if applicable)

ii) After you arrive at the courthouse, you will have to pass through security if you do not have an attorney secure pass.

iii) Go to the Ex Parte Motions Office in Room 315, and wait in line.

iv) When it is your turn to speak with the clerk, give the clerk the following documents for examination:

 The Original copy of Motion  The Original copy of RJI (and RJI addendum, if applicable).  A proposed copy of Summons with Notice (not the original copy)  Poor Person Certificate (if applicable)

v) Once the clerk approves your papers for filing, he/she will take your papers. Ask the clerk to date-stamp your extra copy of the Motion as the

11 proof of filing. Also ask the clerk when you can come back to obtain the signed Order. Usually the Order is signed within 3 to 5 days.

vi) As you now file the motion without an index number, the Ex Parte Motions Office will keep the signed Confidentiality Order for you to pick up, instead of sending it out to the county clerk for entry. Therefore, you should make the second trip promptly.

vii) Again, because you file the motion without an index number and the Cashier Clerk is unable to process any payment without the index number, the Ex Parte Motions Office has instructed us that the filing fee for such motion is hereby waived.

2) The second trip: pick up the signed Order to Maintain Plaintiff’s Address Confidential and purchase the index number:

i) Make sure you bring a photo ID and all necessary documents:

 The Original copy of Summons with Notice + 3 extra copies;  Poor Person Certificate (if applicable)

ii) After you arrive at the courthouse, you will have to pass through security if you do not have an attorney secure pass.

iii) Go to the Ex Parte Motions Office in Room 315, you will pick up the signed Confidentiality Order there.

iv) Next, go to County Clerk Office at Room 141B, find the line for the index number. When it is your turn to speak with the clerk, tell the clerk that you are filing a summons with notice for an Uncontested Divorce. Give the clerk the original copy of Summons with Notice.

v) You need to pay for the filing fee with a money order in the amount of $210, payable to New York County Clerk, or present the Poor Person Certificate provided to you by Sanctuary’s Supervising Attorney.

vi) You will receive a receipt slip indicating the title of the action and the index number assigned to your case. Check the name-spelling of both parties. Correct it immediately with the clerk if necessary.

vii) In Room 141B, look for the Law & Equity desk and find a square-shaped date stamp on the desk. Check the date to ensure it is correct. On each extra copy of the Summons with Notice, stamp once on the first page. Be sure to re-ink every time and press firmly.

After filing the initial papers, please organize all the papers in your file as the

12 following:

1) Make 2 extra copies of the signed confidentiality order (if applicable);

2) Write the complete index number in black ink, on the following documents in your possession: o all date-stamped copies of Summons with Notice; o Sworn Statement of Removal of Barriers to Remarriage (if applicable); o Affidavit of Service; o Affidavit of Defendant.

3) Compile the documents to be provided to the person who will serve process: o A Cover Letter to the server; o Affidavit of Service for the server to complete; o A self-addressed, pre-stamped envelope for the server to return the Affidavit of Service; o The documents to be served upon the Defendant: . 1 date-stamped copy of the Summons with Notice (to be placed on the top of all documents to be served); . 1 copy of the Sworn Statement of Removal of Barriers to Remarriage (not original copy; if applicable); . 1 copy of signed Confidentiality Order (if applicable); . 1 copy of Child Support Standards Chart (if the parties have any child(ren) under 21); . The Cover Letter to the Defendant; . The Affidavit of Defendant; . A self-addressed, pre-stamped envelope for the Defendant.

4) Provide the following document to your client: o 1 date-stamped copy of the Summons with Notice (to be placed on the top of all papers); o 1 copy of the Sworn Statement of Removal of Barriers to Remarriage (not original copy; if applicable); o 1 copy of the signed Confidentiality Order (if applicable).

5) Organize the documents in your file in preparation for the final papers: o All the remaining date-stamped copies of copy of the Summons with Notice o The Original copy of the Sworn Statement of Removal of Barriers to Remarriage (if applicable); o 1 copy of the signed Confidentiality Order (if applicable).

13 IV. SERVICE OF PROCESS

A. LOGISTICS

You should arrange service of process upon the defendant as soon as you can after filing the initial papers and after the granting of the Order to Maintain Plaintiff’s Address Confidential (if applicable). The defendant must be personally served with the following initial papers within 120 days of filing of the initial papers.

1) Who can serve

Any lay person who is not a party in this action, is a resident of the State of New York, and is over the age of 18, can serve process in New York State or in another state/country. Therefore, client cannot serve process.

If client does not have a family member or a friend who can and is willing to serve process, you can consider hiring a professional process server or requesting the sheriff to serve process, both of which will charge you a fee for service. NYC Sheriff requires an Intake form. See Exhibit O (NYC Sheriff Service of Process Intake Form).

If the defendant resides in another state, only a lawyer, a sheriff or a professional process server or a NYS resident can serve process outside of the State of New York or the country. If the defendant resides in a foreign country which is a signatory of the Hague Convention, service of process must comply with the Hague Convention.

If the Defendant is incarcerated, please locate the defendant through the city/state/federal prison system. Contact the facility to understand how to arrange service of process and confirm the mailing address. Usually you will need to mail the documents to be served, along with a cover letter to the prison to the facility.

You should provide a cover letter to the person who will serve process and an Affidavit of Service. Once service is effectuated, the person should complete the Affidavit of Service, sign it in front of a notary and mail it back to you.

2) What to serve

Documents to be served upon the defendant are:

 1 stamped copy of Summons with Notice accompanied by the Notice regarding Health Insurance, the Notice of Guideline Maintenance, and the Notice of Automatic Orders;

14  1 stamped copy of Sworn Statement of Removal of Barriers to Remarriage (if applicable);  1 copy of the signed Order to Maintain Plaintiff’s Address Confidential (if applicable);  1 copy of Child Support Standards Chart if there is any child under 21, which can be downloaded from the Pro Bono UDP webpage;  Affidavit of Defendant + a cover letter to the Defendant + a self- addressed, stamped envelope.

3) When to serve

Personal service upon the Defendant must be done within 120 days of filing of the initial papers, otherwise the index number will expire. Additionally, please remind the person who will serve process that service should not take place on Sunday.

4) How to serve

When serving the defendant, the document entitled “Summons With Notice: Action For A Divorce” should be on top of the other documents, clearly visible to the person being served. Ideally, the papers should be handed directly to the defendant. However, if this is not possible, it is sufficient to touch any part of the defendant’s body with the papers before dropping them at his/her feet. Do not throw the papers at the defendant.

It may take several attempts to serve the defendant. Please urge the lay-person who serves process to document each and every attempt, including date, time, place, and the circumstance.

B. CHALLENGES AND SOLUTIONS

If personal service is impractical or fails, there are other avenues to serve process, but that can only be accomplished through a motion. You will request service by alternative method pursuant to CPLR § 380, such as nail and mail, service by Facebook, service by email, or service by publication. Please consult with Sanctuary’s Supervising Attorney and draft the motion for alternative service accordingly. See Exhibit P (Sample Motion for Alternative Service).

If service cannot be effectuated within 120 days of the filing of the initial papers after attempts of service, you can bring an Ex Parte Motion to extend time for service for another 120 days. This motion, similar to the Motion for an Order to Maintain Plaintiff’s Address Confidential, needs to be filed at Ex Parte Motions Office located at Room315. See Exhibit Q (Sample Motion to Extend Time for Service).

15 V. PREPARE THE FINAL PAPERS

A. POSSIBLE RESPONSES BY THE DEFENDANT

Defendant’s response to the Summons with Notice determines how you proceed with the case and how you prepare the final papers. Defendant has 20 days to respond after service if personally served within the State of New York, or 30 days to respond if served in any other way. There are three possible scenarios that you can expect:

1) Defendant appears and waives the answer

If the defendant timely returns the completed and notarized Affidavit of Defendant, it means the defendant has appeared but waived his/her right to answer. The divorce is therefore uncontested. As the defendant also waives the 40 days waiting period, the final papers can be filed immediately.

2) Defendant does not respond after 20 (or 30) days of service

Defendant has defaulted in the appearance. The divorce is, therefore, uncontested. You can prepare the final papers based on the defendant’s default but you must wait for 40 days after the date of service to file the final papers.

3) Defendant and/or Defendant’s attorney serves a Notice of Appearance and a Demand for Complaint

Defendant has appeared and contested certain issues. Client must serve a Verified Complaint within 20 days. If this happens, please consult with your Sanctuary Supervising Attorney regarding how to proceed. This doesn’t necessarily mean that the case will require litigation. Perhaps the unresolved issues can be settled through negotiation and then the case can continue as an uncontested divorce. If there is no resolution after negotiation, the case needs to be litigated in Court as a contested divorce. At that time, we will discuss whether you would like to continue pro bono representation. If you would like to continue representing the client, Sanctuary for Families will co-counsel with you on the contested divorce.

B. DRAFT THE FINAL PAPERS

You should already have certain required documents for the final papers in your case file, such as:  a stamped copy of Summons with Notice;  the original copy of Sworn Statement of Removal of Barriers to Remarriage (if applicable);

16  a signed copy of Order to Maintain Plaintiff’s Address Confidential (if applicable);  Completed and notarized Affidavit of Service and/or completed and notarized Affidavit of Defendant;  All existing Family Court Orders of custody/visitation/child support and orders of Protection from either Criminal Court or Family Court.

The following final papers need to be drafted:

1. Note of Issue (3 copies). See Exhibit R (Sample Note of Issue);

2. Part 130 certification by an attorney. See Exhibit S (Sample Part 130 Certification);

3. Affirmation of Regularity. See Exhibit T (Sample Affirmation of Regularity);

4. Verified Complaint. See Exhibits U1 and U2 (Sample Verified Complaint);

5. Plaintiff’s Affidavit. See Exhibits V1 and V2 (Sample Plaintiff’s Affidavit);

6. If there are any children under 21, Child Support Order, or a Child Support Stipulation, or a Child Support Worksheet. See Exhibit W (Sample Child Support Worksheet);

7. Proposed Findings of Fact and Conclusions of Law. See Exhibits X1 and X2 (Sample Findings of Fact and Conclusions of Law);

8. Proposed Judgment of Divorce. See Exhibits Y1 and Y2 (Sample Judgment of Divorce);

9. Certificate of Dissolution of Marriage (Form DOH-2168.) See Exhibit Z (Sample Certificate of Dissolution of Marriage);

10. Support Collection Unit Information Sheet (if applicable). See Exhibits AA (Sample Support Collection Unit Information Sheet);

11. Child Support Summary Form (Form UCS-111, if applicable). See Exhibit BB (Sample Child Support Summary Form);

12. An affidavit by Plaintiff to explain why Defendant’s SSN is unknown or any irregular issue (if applicable). See Exhibit CC (Sample additional Plaintiff’s Affidavit);

13. A self-addressed postcard for the Court to notify the attorney regarding the status of the case. See Exhibit DD (Sample postcard); and

17 14. The filing fee for the final papers is $125, payable to “New York County Clerk,” or a Poor Person Certificate, signed by a Sanctuary attorney, to waive the filing fee.

18 VI. SUBMISSION OF THE FINAL PAPERS

A. STEP-BY-STEP FILING INSTRUCTIONS

If you are sending an assistant or a filing clerk from your firm, please provide an attorney’s authorization to this person for him or her to file the final papers on your behalf.

Bring the original copies of final papers and one extra set of copies, as well as the filing fee of $125 or a Poor Person Certificate, to the Matrimonial Support Office located at Room 311.

You should assemble the final papers in accordance with a check list issued by the Court Clerk. See Exhibit EE (Sample New York County Supreme Court Uncontested Divorce Final Papers Checklist). The checklist does not indicate the orders of protection and the Order to Maintain Plaintiff’s Address Confidential; however, you must include them as part of the final papers.

When you arrive, wait at the entry area and wait for any of the clerks to speak to you. When asked, inform the clerk that you are here to file the final papers for an uncontested divorce case. Wait for your turn to meet with an uncontested matrimonial clerk to bring you to his/her cubicle and examine the papers in front of you, mark them, and then direct you to the Cashier’s office located at Room 160 to pay the filing fee or present a Poor Person Certificate to waive the fee. The Cashier’s Office will give you a receipt or stamp “no fee” on your file papers, and then keeps the original copies of the final papers. You should ask the clerk to date-stamp your extra copy for your record as proof of filing.

B. NOTICE OF DEFECTIVE PAPERS

You may receive your self-addressed postcard or a Notice from the court indicating that the final papers you have filed are defective. Please go to the Matrimonial Support Office located at Room 311 promptly to pick up the defective papers from the uncontested matrimonial clerk. Usually the defect is minor and easily fixable. The court usually will provide written instruction as to why the papers are defective and how to remedy the issue. You should ask the clerk if you have further questions.

You should fix the defective papers as soon as you can and re-submit the fixed final papers to the Matrimonial Support Office located at Room 311. You should bring an extra copy for the clerk to date stamp for you as proof of filing.

C. NOTICE OF INQUEST

On very rare occasions, when there is a minor child in the case, the Court may notify the parties to appear in Court for an inquest for the purposes of a registry check. This means that the court searched the database for the parties’ names and dates of birth and has found results under names similar to those of the parties. The purpose of such inquest is allow the

19 parties to review the results from the registry check and ensure the results are correct. The inquest itself is almost always brief, although the wait time at the court to be called for the inquest can be lengthy if the court has a busy calendar. If your client is ordered to appear for an inquest, please contact your Sanctuary Supervisor to discuss how to prepare for the inquest.

During the inquest, either the Special Referee will ask the questions to verify the details of the results from the registry check, or the Special Referee will ask you to conduct the questioning. You will be provided a copy of the results at the inquest. You can ask leading questions to the plaintiff and then to the defendant, to verify the results, such as names, docket number of the order of protection, the court issuing the order, whether the plaintiff or the defendant is aware of said order, and whether said order is still in effect.

The preparation for such appearance is minimal but you should speak to your client and explain what to expect. Make sure you bring the case file and you have copies of all the orders of protection and/or information regarding any applicable /neglect proceedings and/or regarding New York State Sex Offender Registry.

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VII. ENTRY OF JUDGMENT OF DIVORCE

It will generally take 4 to 5 months, sometimes longer, for the New York County Supreme Court to review the final papers in an uncontested divorce case. If the court approves the papers, a Judge or a Referee will sign the Findings of Fact and Conclusions of Law and the Judgment of Divorce. Then, the Judgment of Divorce will be sent to the County Clerk’s Office for scanning and entry. From the date of signing to the Judgment to the date of entry, it may take up to 3 months, sometimes longer, in the New York County Supreme Court.

When the Judgment of Divorce is entered and becomes available, you will receive the self-addressed postcard in the mail from the court indicating that the Judgment of Divorce is ready for pick up now.

When you receive the postcard, you should promptly go to the County Clerk’s Office located at Room 141B to request a certified copy of the Judgment of Divorce. A small fee is required for the certified copy, which is $8 per certified copy plus 25₵ per page.

Please note that the date of the divorce is the date that the Judgment is entered with the County Clerk, not the date when it is signed by the judge or Special Referee. You should then (i) serve a Notice of Entry with the Judgment of Divorce upon the defendant by mail, see Exhibit FF (Sample Notice of Entry and Affirmation of service), and (ii) file the Notice of Entry along with proof of service, see Exhibit FF in court.

After these two steps have been completed, the divorce is deemed finalized. At that point, you need to provide your client with a certified copy of the Judgment of Divorce and a stamped copy of the Notice of Entry and proof of service. You should also provide a closing letter to your client explaining that the divorce is now finalized and that the client needs to keep the Judgment of Divorce and Notice of Entry in a safe place as proof of the divorce. See Exhibit GG (Sample Closing Letter).

21 LIST OF EXHIBITS

PRIOR TO THE COMMENCEMENT EXHIBIT A: Sample Client Interview Outline EXHIBIT B: Interviewing and Assisting Domestic Violence Survivors EXHIBIT C: Sample Authorization to Access Record EXHIBIT D: Sample Poor Person Certificate EXHIBIT E: Sample Equitable Distribution and Maintenance Statement

INITIAL PAPERS EXHIBIT F1: Sample Summons with Notice- no child EXHIBIT F2: Sample Summons with Notice- with child EXHIBIT G: Sample Sworn Statement of Removal of Barriers to Remarriage EXHIBIT H1: Sample Affidavit of Defendant- no child EXHIBIT H2: Sample Affidavit of Defendant- with child EXHIBIT I: Sample Cover Letter to Defendant EXHIBIT J: Sample Affidavit of Service EXHIBIT K1: Sample Cover Letter to a Lay-Person to arrange service EXHIBIT K2: Sample Cover Letter to a Sheriff or a Process Server to arrange service EXHIBIT K3: Sample Cover Letter to a Prison to arrange service EXHIBIT L: Sample Confidentiality Motion EXHIBIT M1: Sample Request for Judicial Intervention (RJI) EXHIBIT M2: Sample RJI Matrimonial Addendum EXHIBIT N: Sample Child Support Standards Chart

SERVICE OF PROCESS EXHIBIT O: NYC Sheriff Service of Process Intake Form EXHIBIT P: Sample Motion for Alternative Service EXHIBIT Q: Sample Motion to Extend Time for Service

FINAL PAPERS EXHIBIT R: Sample Note of Issue EXHIBIT S: Sample Part 130 Certification EXHIBIT T: Sample Affirmation of Regularity EXHIBIT U1: Sample Verified Complaint-no child EXHIBIT U2: Sample Verified Complaint-with child EXHIBIT V1: Sample Plaintiff’s Affidavit-no child EXHIBIT V2: Sample Plaintiff’s Affidavit-with child EXHIBIT W: Sample Child Support Worksheet EXHIBIT X1: Sample Findings of Fact and Conclusions of Law-no child EXHIBIT X2: Sample Findings of Fact and Conclusions of Law-with child EXHIBIT Y1: Sample Judgment of Divorce-no child EXHIBIT Y2: Sample Judgment of Divorce -with child EXHIBIT Z: Sample Certificate of Dissolution of Marriage EXHIBIT AA: Sample Support Collection Unit Information Sheet

22 EXHIBIT BB: Sample Child Support Summary Form EXHIBIT CC: Sample Additional Plaintiff’s Affidavit EXHIBIT DD: Sample postcard EXHIBIT EE: Sample New York County Supreme Court Uncontested Divorce Final Papers Checklist EXHIBIT FF: Sample Notice of Entry and Affirmation of Service EXHIBIT GG: Sample Closing Letter

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