ANATOMY OF A TYPICAL DIVORCE ACTION IN WESTCHESTER COUNTY

If the negotiation process breaks down and the parties cannot agree on all issues, including economic and child custody issues, a divorce action is commenced by filing a Summons with Notice (of divorce). After service of the Summons with Notice or Summons and a Verified Complaint, a request for judicial intervention is filed. In Westchester County, this triggers a process governed by a unique set of rules.

Initially, the case is assigned to an attorney-referee whose function is to time-manage the case. Before the parties appear before a judge, the attorney-referee meets with the parties and their attorneys. Prior to this meeting, the attorneys must meet to prepare pre-conference orders and stipulations (which are legal agreements with certain conditions) regarding grounds and issues yet to be resolved.

1. At the pre-conference meeting, the attorney-referee sets a timetable for the case including a time-frame for the exchange of financial and other documents and the completion of all other financial "discovery".
2. Should one party wish to make a motion for relief to be granted during the pendency of the action (a pendente lite motion), a request must first be made to the attorney-referee to schedule a pre-motion conference (except in emergencies).
3. At the conclusion of that conference, the attorney-referee submits his or her recommendation to the assigned judge prior to the motion being heard by the judge.

The motivation for instituting this reform was to streamline the process, thus freeing up more time for the court to hear cases. Once you access the system, the timeline is pre-set. If you do not settle the case in the allotted time, a trial will be scheduled. This process can take over a year if the case is complicated. Many attorneys believe that the system is not "settlement friendly" and may advantage the spouse with more money.

Clearly, it is economically and often emotionally beneficial to settle the issues of divorce through negotiation, as each appearance before the attorney-referee or judge is costly, and the preparation of court papers is also costly. However, in some cases the marital issues are too divisive for settlement and a trial is necessary to resolve the issues.