Abandonment: A reason for divorce. Abandonment occurs when one party has left the other for a continuous period of one year or more, without the party's consent, and without justification (good cause).
Affidavit of Service: A document signed by a non-party who has served any papers in a lawsuit such as the Summons and Verified Complaint containing an oath that the papers were properly served. When completed, it is submitted with these papers.
Note: One party cannot serve another. This sworn statement must give the date, time, place, the way it was served, and a description of the person who is given the documents.
Alternative Dispute Resolution: (ADR) refers to a variety of processes that help parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, neutral evaluation, and collaborative law. These processes are generally confidential, less formal, and less stressful than traditional court proceedings.
Ancillary Relief: In an action for divorce, additional or other help asked for beyond a judgment of divorce, such as maintenance (formerly called "alimony") payments, division of property, responsibility for debts (bills), child support, etc. (See Equitable Distribution, Maintenance, Marital Property)
Answer: The response to the complaint. In a divorce action, the answer must be verified. (See Verified)
Attorney for Child: An attorney appointed by the court to represent a child in contested custody matters (formerly known as a Law Guardian).
Calendar Number: The number assigned to a lawsuit by the court when the case is scheduled for trial by the court. It is different from the Index Number that is assigned when the first papers are filed with the County Clerk. A separate fee is charged for the Calendar Number. (See Note of Issue)
Cause of Action: A group of facts giving rise to one or more legal reasons for suing; a factual situation that entitles one person to obtain a decision from the court against the other person if proven in court.
Complaint: The initial pleading to a court in a civil matter, written by the Plaintiff or his/her attorney. In a divorce action, it contains the Plaintiff's allegations of his or her reasons for divorce, and it must be verified. (See Verified, See also Summons)
Constructive Abandonment: A reason for divorce. This is when the one party has refused, without justification, to have sexual relations with the other, continuously for a period of one year or more, without that party's consent.
Counterclaim: A claim by the Defendant against the Plaintiff written in the Verified Answer. A Verified Answer responds only to the allegations (charges) in the Verified Complaint. A counterclaim may be added to the Verified Answer to say that the Defendant also wants a divorce from the Plaintiff and states Defendant's reasons for the divorce.
County Clerk's Office: The office wherein an Index Number and Calendar Number for court proceedings are obtained, court filing fees are paid and court papers are filed and permanently maintained. In many counties, this office is located in the same building as the Supreme Court. If not, the Clerk in the Supreme Court building can direct you to the County Clerk's office.
Cruel and Inhuman Treatment: A reason for divorce. Cruel and inhuman treatment consists of cruelty, whether physical, verbal, sexual or emotional, committed by the Defendant, against the Plaintiff, that endangers the Plaintiff's physical or mental well-being and makes living together either unsafe or improper.
Default Judgment: A divorce judgment that is obtained against the Defendant when the Defendant fails to respond to either: (a) the Summons and Verified Complaint; or (b) the Summons With Notice, for the divorce within the time allowed by law.
Deposition: A person's out-of-court, sworn testimony that is reduced to writing (usually by a court reporter) for later use in the lawsuit. Except for a judge not being present, it is conducted in a manner similar to trial. Also known as an Examination Before Trial (EBT)
Discovery: Required disclosure, at a party's request, of information that relates to the litigation. In divorce cases, it usually relates to financial information. Upstate, disclosure can also relate to grounds for divorce and custody issues.
Dissipation: The wasteful use of an asset for an illegal or inequitable purpose, such as a spouse's use of marital property for personal benefit when a divorce is imminent. It is intended to deprive the other spouse of the use and enjoyment of the asset.
Emancipation: The release of a child from the responsibility and control of a parent or guardian. Under New York law, child support must be paid until the age 21. If a child marries, enters the military or becomes self-supporting, before turning 21, the court may consider the child emancipated, and child support may be terminated.
Equitable Distribution: The way marital property must be divided by law in a divorce action in New York State. Equitable distribution does not necessarily mean 50% of one asset to one party and 50% to the other. Distribution is based on various factors presented to the court.
Ex Parte (Communication): An application or statement made to the court by one party (including counsel) to a proceeding without notice to, or in the absence of, the other party. This type of communication to the court is generally prohibited, except for scheduling issues.
Expert: A person who, through education or experience, has developed skills or knowledge of a particular subject, so that he or she may form an opinion that will assist the judge or jury in making a decision.
Family Court: The Family Court in New York State has the jurisdiction to hear cases involving child support, custody, visitation, spousal support and family offenses (Orders of Protection). A divorce action cannot be heard in this court.
Guardian ad litem: A guardian, usually a lawyer, appointed by the court to help a minor or incompetent person in a lawsuit. In a divorce case, the guardian ad litem does not act as an attorney for the child, but reports to the court on what is in the child's best interests.
Hearsay: Testimony that is given by a witness who tells not what he or she knows personally, but what others have said which is therefore dependent on the credibility of someone other than the witness. That testimony is generally inadmissible under the rules of evidence.
Index Number: The unique number assigned by the County Clerk's office to every action or proceeding commenced within the New York State Supreme Court. The number is used to identify a case in that court, and should be indicated on all papers served on the parties and filed with the court. The number is either: (a) purchased; or (b) obtained after a Poor Person Application is filed and approved by the court.
Irretrievable Breakdown: the relationship is impossible to repair for a period of at least six months.
Law Guardian: (see Attorney for Child).
Maintenance: Support paid by one party to the marriage for the support of the other party to the marriage pursuant to a final Judgment of Divorce (sometimes also referred to as "post-divorce maintenance" or "spousal support")
Marital Property: Any property, regardless of which person is named as owner, that the Plaintiff or Defendant obtained from the date of marriage to the beginning of the divorce action. A house, car, IRA, bank account(s), pension, annuity, business and advanced degree are all examples of marital property. However, an inheritance, a gift from someone other than your spouse, compensation for personal injuries, may be deemed separate property. (See Separate Property)
Mediation: A neutral person called a "mediator" helps the parties try to reach a mutually-acceptable resolution of the dispute. The mediator does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves. Mediation may be inappropriate if a party has a signficant advantage in power or control over the other.
Notice of Entry: A form given to a party saying that the final judgment of divorce was entered in the County Clerk's Office. A copy of the judgment, date-stamped to indicate the filing, is also given to the party with this document. The time to file a Notice on Appeal commences upon service of the judgment of divorce with Notice of Entry.
Note of Issue: A form filed with the court to notify the court that all documents are ready for the court's review or that the action is ready for trial. A separate fee is charged for filing and a Calendar Number is issued. (See Calendar Number)
Order: A direction of the court. Failure to comply may result in contempt. (See Contempt)
Order of Protection: An order issued by a court which directs one person to stop certain conduct, such as harassment, against another person. The order may also direct the person to be excluded from the residence and to stay away from the other person, his or her home, school, place of employment and his or her children.
Poor Person Application: An application made to the court, by either the Plaintiff or Defendant, stating that because of insufficient income he or she is unable to pay the court fees normally required for divorce actions. If the application is granted by the court, the usual court costs for the divorce action are waived.
Removal of Barriers to Remarriage Form: This form is necessary when the marriage was solemnized in a religious ceremony by a member of the clergy, minister of any religion, or a leader of The Society for Ethical Culture. It requires the party obtaining the divorce to acknowledge that he or she has taken all steps to remove religious barriers to the other party's remarriage.
Separate Property: Property considered by the courts to belong only to one spouse or the other. It is not available for equitable distribution.
Separation Agreement: A written agreement on support for the child(ren), spousal maintenance payments, division of marital property, responsibility for debts (bills), residence of child(ren), child care and related issues. This agreement must be formally signed and acknowledged and covers the period before divorce but after the separation. (See Acknowledgment)
Settlement Agreement: A formal, voluntary, written agreement on all of the issues surrounding divorce. It must be formally signed and acknowledged. (See Acknowledgment)
Subpoena: A legal order requiring a person's attendance at a particular time and place to testify as a witness or to provide certain documents that are requested. Failure to comply can be contempt of court. (Also known as judicial subpoena)
Summons with Notice: A legal document which starts the Plaintiff's action for a divorce and requires the Defendant to serve a Notice of Appearance in the action within a specific period of time. This document is initially filed with the County Clerk 's Office and a copy is then served upon the Defendant to give notice that the Plaintiff has started a divorce action. It states the reason(s) for the divorce and may also include requests for additional relief such as: child support, custody, visitation, spousal maintenance and equitable distribution.
Uncontested Divorce: An uncontested divorce occurs when: (a) there are no disagreements between you and your spouse over any financial or divorce-related issues (i.e., child custody and support, division of marital property or spousal support); and (b) your spouse either agrees to the divorce, or fails to appear in the divorce action.