What Constitutes Going to Court in Divorce?

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by | Sep 14, 2022 | Blog, Divorce

If you are looking to divorce your spouse, you may think that as soon as you file for divorce, you are “going to court.” However, there is a significant difference between filing for divorce and going to court, and the distinction can offer strategic advantages in settling your disputes.

What Happens When You File for Divorce?

In New York, you start a divorce by filing a summons with notice or a summons with a verified complaint with the county clerk’s office. However, nothing happens in your case until you take other steps. For instance, you must serve the summons and complaint on your spouse within 120 days or by law, your action is deemed abandoned. The exception would be if you filed a motion to extend the time to serve. However, it is less expensive to abandon your case and begin again than to file a motion to extend it.

Once you have served your spouse, you would need to file a form called a Request for Judicial Intervention to move the summons and other paperwork from the county clerk’s office to the courthouse. Once filed, the Supreme Court clerk’s office will assign a judge to your case who will then direct you and your spouse to appear in court. Consequently, filing for divorce does not necessarily mean that you are going to court. It only means that you are giving the county clerk’s office notified of an intent to divorce your spouse and nothing more.

How Can Filing for Divorce Help You Settle Disputes?

If one spouse wants the divorce but the other one doesn’t, the objecting spouse may make themselves unavailable for negotiations effectively prolonging the marriage. That is where filing for divorce can be used strategically to force the spouse to begin communications regarding spousal and child support, child custody, and property distribution. This can be done in two ways. 

File a Summons with Notice

First, you can file for divorce without serving a complaint. By filing a summons with notice, you would only convey to your spouse the grounds upon which you want the divorce to be granted and your wish list in terms of how you would want custody, support, and property distribution resolved. This may help get your spouse to discuss how best to wind down the marriage without incurring the costs of an attorney who would ultimately be needed to advise both you and your spouse of your legal rights before a judgment is obtained. 

File a Request for Judicial Intervention

If your spouse is still uncooperative, you can then file and serve a request for judicial intervention to get a judge assigned to help move your case along to final judgment. 

Importantly, getting a judge involved does not mean expensive motion practice. Instead, having judicial participation can help move your case forward by helping both sides be transparent in all respects and setting deadlines that must be met, which ultimately operates to move the case to final judgment.

It’s a good idea to try to settle what you can before going to court to save time and money. However, always consult an attorney before signing anything. An experienced lawyer can advise you of your rights and obligations and help ensure a fair agreement. Contact us today for a consultation to learn how we can assist you in achieving the best result in your divorce.

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