NEW YORK CODE DOMESTIC RELATIONS ARTICLE 10: ACTION FOR DIVORCE Section 170: Action for divorce

An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds: (1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant. (2) The abandonment of the plaintiff by the defendant for a period of one or more years. (3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant. (4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law. (5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment. (6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation. (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of

child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

Section 170-A: Special action a. A spouse against whom a decree of divorce has been obtained under the provisions of subdivision five or six of section one hundred seventy of this chapter, where the decree, judgment or agreement of separation was obtained or entered into prior to January twenty-first, nineteen hundred seventy, may institute an action in which there shall be recoverable, in addition to any rights under this or any other provisions of law, an amount equivalent to the value of any economic and property rights of which the spouse was deprived by virtue of such decree, except where the grounds for the separation judgment would have excluded recovery of economic and property rights. b. In determining the value of the economic and property rights described in subdivision a hereof, the plaintiff's interest shall be calculated as though the defendant died intestate and as if the death of the defendant had immediately antedated the divorce. c. If the defendant shall establish that intervening circumstances have rendered an award described in subdivision a hereof inequitable, the court may award to the plaintiff such portion of such economic and property rights as justice may require. d. If the defendant shall establish that the plaintiff has expressly or impliedly waived all or some portion of the aforesaid economic or property rights, the court shall deny recovery of all such rights, or deny recovery of the portion of such rights as justice may require. e. Actions under this subdivision may be brought: (i) Within two years of the enactment of this section, or (ii) Within two years of the obtainment of the subject divorce, whichever is later. Section 171: When divorce denied, although adultery proved In either of the following cases, the plaintiff is not entitled to a divorce, although the adultery is established: 1. Where the offense was committed by the procurement or with the connivance of the plaintiff. 2. Where the offense charged has been forgiven by the plaintiff. The forgiveness may be proven, either affirmatively, or by the voluntary cohabitation of the parties with the knowledge of the fact. 3. Where there has been no express forgiveness, and no voluntary cohabitation of the parties, but the action was not commenced within five years after the discovery by the plaintiff of the offense charged. 4. Where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce. Section 172: Co-respondent as party 1. In an action brought to obtain a divorce on the ground of adultery the plaintiff or defendant may serve a copy of his pleading on a co-respondent named therein. At any time within twenty days after

such service, the co-respondent may appear to defend such action so far as the issues affect him. If no such service be made, then at any time before the entry of judgment a co-respondent named in any of the pleadings may make a written demand on any party for a copy of a summons and a pleading served by such party, which must be served within ten days thereafter, and he may appear to defend such action so far as the issues affect him. 2. In an action for divorce where a co-respondent has appeared and defended, in case no one of the allegations of adultery controverted by such co-respondent shall be proven, such co-respondent shall be entitled to a bill of costs against the person naming him as such co-respondent which bill of costs shall consist only of the sum now allowed by law as a trial fee, and disbursements. Section 173: Jury trial In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce. Section 175: Legitimacy of children 1. Where the action for divorce is brought by the wife, the legitimacy of any child of the parties, born or begotten before the commencement of the action, is not affected by the judgment dissolving the marriage. 2. Where the action for divorce is brought by the husband, the legitimacy of a child born or begotten before the commission of the offense charged is not affected by a judgment dissolving the marriage; but the legitimacy of any other child of the wife may be determined as one of the issues in the action. In the absence of proof to the contrary, the legitimacy of all the children begotten before the commencement of the action must be presumed. Section 177: Prerequisites for divorce 1. Prior to accepting and entering as a judgement any stipulated agreement between the parties in an action for divorce, the judge shall ensure that there is a provision in such agreement relating to the health care coverage of each individual. Such statement shall either (a) provide for the future coverage of the individual; or (b) state that the individual is aware that he or she will no longer be covered by his or her spouse's health insurance plan and that the individual will be responsible for his or her own health insurance coverage. Every agreement accepted by the court must contain the following statement, signed by each party, to ensure that the provisions of this subdivision are adhered to: "I, (spouse), fully understand that upon the entrance of this divorce agreement, I may no longer be allowed to receive health coverage under my former spouse's health insurance plan. I may be entitled to purchase health insurance on my own through a COBRA option, if available, otherwise I may be required to secure my own health insurance.

_________________________________________________ (Spouse's signature) (Date)"

2. Prior to rendering a decision in an action for divorce, the judge shall ensure that he or she notifies both parties that once the judgement is entered, a person may or may not be eligible to be covered under his or her spouse's health insurance plan, depending on the terms of the plan. If, prior to accepting an agreement and entering the judgement thereon, the judge determines that the

provisions of this section have not been met, the judge shall require the parties to comply with the provisions of subdivision one of this section and may grant a thirty day continuance to afford the parties an opportunity to procure their own health insurance coverage.

ARTICLE 13: PROVISIONS APPLICABLE TO MORE THAN ONE TYPE OF MATRIMONIAL ACTION

Section 210: Limitations on actions for divorce and separation No action for divorce or separation may be maintained on a ground which arose more than five years before the date of the commencement of that action for divorce or separation except where: (a) In an action for divorce, the grounds therefor are one of those specified in subdivision (2), (4), (5) or (6) of section one hundred seventy of this chapter, or (b) In an action for separation, the grounds therefor are one of those specified in subdivision 2 or 4 of section two hundred of this chapter.

Section 211: Pleadings, proof and motions A matrimonial action shall be commenced by the filing of a summons with the notice designated in section two hundred thirty-two of this chapter, or a summons and verified complaint as provided in section three hundred four of the civil practice law and rules. A final judgment shall be entered by default for want of appearance or pleading, or by consent, only upon competent oral proof or upon written proof that may be considered on a motion for summary judgment. Where a complaint or counterclaim in an action for divorce or separation charges adultery, the answer or reply thereto may be made without verifying it, except that an answer containing a counterclaim must be verified as to that counterclaim. All other pleadings in a matrimonial action shall be verified.

ARTICLE 13: PROVISIONS APPLICABLE TO MORE THAN ONE TYPE OF MATRIMONIAL ACTION Section 230: Required residence of parties An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when: 1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or 4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or 5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

DIVORCE LAW IN CALIFORNIA

Residency and Filing Requirements: In order to file for a dissolution of marriage in California, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows: A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition. For the purpose of a proceeding for dissolution of marriage, the husband and wife each may have a separate domicile or residence depending upon proof of the fact and not upon legal presumptions. (California Code - Sections: 297, 298, 2320, 2339) Grounds for Filing: The Petition for Dissolution of Marriage must declare the appropriate California grounds upon which the dissolution of marriage is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The dissolution of marriage grounds are as follows: The effect of a judgment of dissolution of marriage when it becomes final is to restore the parties to the state of unmarried persons. Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds, which shall be pleaded generally: (a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage. (b) Incurable insanity. Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. A marriage may be dissolved on the grounds of incurable insanity only upon proof, including competent medical or psychiatric testimony, that the insane spouse was at the time the petition was filed, and remains, incurably insane. No dissolution of marriage granted on the ground of incurable insanity relieves a spouse from any obligation imposed by law as a result of the marriage for the support of the spouse who is incurably insane, and the court may make such order for support. (California Code - Sections: 2310) Filing Spouse Title: Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court. Non-Filing Spouse Title: Respondent. The Respondent is the spouse who does not file the initial dissolution of marriage papers, but rather receives them by service.

Court Name: Superior Court of California, County of __________. This is the California court where the dissolution of marriage will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed. Primary Documents: Petition for Dissolution of Marriage and Final Judgment of Dissolution of Marriage. These are the essential documents needed to start and finalize a dissolution of marriage according to California law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Appearance, Stipulations, and Waivers, Preliminary Declaration of Disclosure, Declaration Re Service of Declaration of Disclosure and Income and Expense Statement, Marital Settlement Agreement, and Declaration for Default or Uncontested Dissolution of Marriage. Summons The Summons is the paper stating that one spouse is filing for divorce. The person filing for divorce must have someone 18 years old or older, personally deliver copies of the Summons and the Petition for Dissolution of Marriage to his or her spouse. If the spouse cant be located, the judge may approve some other manner of notification. Respondents Response After the spouse is served, that person has 30 days to file a Response. This document tells the court that the Respondent wishes to participate in the divorce proceedings. The person who must file the Response is called the "Respondent." Default If the Respondent fails to file a Response within 30 days after being served with divorce paperwork, the case proceeds through the necessary steps without the Respondents participation. Failure to respond to the divorce paperwork does not stop the divorce that was put into motion by the Petitioner. A court hearing may not be required in these circumstances for a divorce to be granted. Affidavit Should the divorce proceed without Respondent filing an answer or Response to the Summons, the Petitioner then must file an affidavit or sworn statement that the marriage is ending because of irreconcilable differences. Petitioner Response The Petitioner prepares a judgment and submits it to the court. The Petitioner requests orders concerning custody, visitation, child support, spousal support, attorney fees, and division of property. Six months and one day is the waiting period required after the Respondent is served, for the divorce to become final. Multiple Processes Many different steps may be in motion during the Discovery phase, where all the information is gathered so that the best possible decisions can be made in occurrence with California Laws. There are free forms on line that will provide examples of the information that needs to be obtained. These forms can take a lot of the mystery out of all the separate pieces of information that are necessary to gather.

If you have an attorney, your attorney will advise you. However, many people still find it helpful to have documents that serve as a guide and workbooks to follow. Ultimately, even if you are represented by an attorney, he or she will still rely on you to provide all the required documents. Discovery If the Respondent files a Response, the parties exchange documents and other information about their property and incomes. This is called Discovery. Discovery can be in the form of questions asked in person, by deposition or through written questions. All issues related to the marriage, such as child custody, child visitation, child support, spousal support, property division, valuation of assets, etc may take considerable time to resolve, especially when there is a lack of cooperative effort between the parties. Thus, it is often necessary to ask the courts to make temporary orders. Community Property California is a community property state. This means that any real or personal property acquired during the course of the marriage, while residing in California, is community property. Except where there are written agreement of the parties or an oral stipulation by both parties in open court to the contrary, the court shall divide the estate of the parties equally. Separate property acquired before the marriage, gifted to one party, acquired by bequest or descent is considered separate property. Order to Show Cause If one or both of the parties need the court to make orders before trial, either spouse may do so by filing an Order to Show Cause. This request usually will be for child custody, child visitation, child support, spousal support, attorney fees or for a domestic violence restraining order. Each party appears in court and explains his/her position. The court will make an order based upon the evidence. Settlement Conference After discovery is complete, one party will set the case for trial. Normally, the court will schedule a Mandatory Settlement Conference before trial. This is a date in the courtroom where both sides are ordered to appear with their attorneys and attempt to settle as many issues before the trial as possible. If they are able to settle the entire case, a Marital Settlement Agreement is drafted and a judgment is drafted by one of the attorneys. Trial Date At trial, each attorney presents evidence and arguments. The judge or commissioner makes orders on all unresolved issues. The judgment is prepared and approved by the divorce attorneys and then submitted to the court. Once the judge or commissioner signs the judgment and the six month waiting period has elapsed the divorce becomes final. Modification of Orders Even after the court signs the judgment, some orders can be modified. These include child support, custody, visitation, and usually spousal support. Other orders can almost never be changed after the judgment is entered, including orders dividing property and orders awarding attorney fees. Child Custody Custody may be awarded parents as joint legal, joint physical or sole custody. California law is based on making a determination of the best interest of the child. There is wide acceptance in most California

courts that the best interest of minor children is served by both parents actively supporting and nurturing the relationship of their children with both parents. Mediation Prior to meeting with the Family Court Mediator you will be required to take a course that provides you with general information about how the court system works. When you do meet with the mediator, the mediator will encourage you to come to workable agreements. If you are still unable to agree, the mediator will make some written recommendations to help the court in the decision making process. Child Support California holds that both parents of a minor child have an equal responsibility to support their child in the manner suitable to the childs circumstances. The duty to support continues until completion of the 12th grade or age 19 whichever occurs first. Should a child be incapacitated, both parents have a responsibility to the extent of their ability to provide for that child at any age. Child Support and College Expenses California has no current statute or case law holding that parents have a duty to provide for college expenses so many are recommending this be addressed in your settlement negotiations if parents have specific desires and intentions. Alimony/Spousal Support The court considers spousal support taking into account the spouses ability to gain self-supporting employment and the extent to which the future earning capacity was impaired by time devoted to the care of minor children. Balancing the needs of each party and potential hardships, the goal is for both parties to be self supporting within a reasonable period of time.