First, you need to fully understand that in New York, a judgment of divorce cannot be entered until all of the collateral issues are resolved. By “Collateral issues,” I’m referring to custody, spousal support, child support, and equitable distribution of the assets and liabilities. Until those issues are resolved either by a trial or by agreement, the judgment cannot be entered. So when you start a divorce action, you must file the summons with the county clerk, you’re assigned an index number, the summons is then served, and the party that’s served with the summons has 20 days to respond. By response, they put in a notice of appearance, or if a complaint was served with the summons and the complaint is a document that alleges the grounds for divorce, they can put in an answer, which starts the discovery process. The discovery process entails making demands for the production of documents. It may entail taking depositions of third parties or the adversary party. It may involve the use of forensics, where you hire a forensic accountant to do evaluations of businesses and other assets. There may be forensic evaluators to help determine the custodial relationship of the children to the parents.
And during that process, there may be many occasions when you have to make motions for enforcement. For example, one party refuses to deliver records or delivers incomplete records. Suppose someone who is served with the demand to serve certain documents doesn’t. In that case, you can make motions for preclusion to preclude them from offering evidence at the trial and for the court to draw adverse inferences because they have refused to produce documents. So there is a multitude of types of motions that can happen along the way.
In addition, as I mentioned earlier, there’s the issue of whether or not one parent or one party will receive spousal support and/or child support during the pendency of the action. That may require a separate motion. New York law has a presumption that the moneyed spouse will contribute to the legal fees for the non-moneyed spouse. That has to be addressed because, on many occasions, one spouse doesn’t have the financial ability to retain the counsel and to pay for counsel as we advance. So applications are made for counsel fees during the pendency of the action. There are many occasions where one party will need to hire their own accountant to review the financial records produced by their spouse even if the court appoints a forensic accountant to value things, whether it’s a business interest or the totality of a business or any other type of asset, you are not bound by that report that someone appointed by the court generates. You can have your own professional, be it an accountant or someone else, review it and come to trial to testify on your behalf as to why that report should be considered by the court or discounted by the court.
A good deal of time is spent on deciding custody and the value of assets. Valuation is a critical determinative factor as well as the concept of separate and marital property. The parties may make many claims, but they may or may not be accurate. For example, you must consider any actions that have been taken since the purchase of the asset.
If, for instance, you came into the marriage with half a million dollars in a security investment account, but during the marriage, the person whose name was added money to it, that was marital money from income, changes the character of that investment account. There may no longer be a separate asset, and it now may become a marital asset.