A divorce is contested when one or more issues that have to be decided — property, support, custody, or another issue the court must resolve — remain in dispute. It is still a civil action for a judgment of divorce. It is not a different statutory kind of marriage dissolution, and it is not decided in Town Court, Village Court, City Court, or Family Court.
Westchester County divorce actions are brought in the New York State Supreme Court. That court sits at the Richard J. Daronco Courthouse, 111 Dr. Martin Luther King Jr. Boulevard, White Plains, NY 10601. The stages described below are general information about how a contested matrimonial case often moves through that court. They are not a schedule, a promise of a result, or a substitute for advice about a particular case.
Gregory Salant, a partner at Harold, Salant, Strassfield & Rotbard, LLP, represents people in contested and uncontested divorce matters. Meetings are offered at 81 Main Street, Suite 205, in White Plains, the city where Westchester County divorce cases are heard.
Commencement
The action is commenced by a summons with notice or a summons and verified complaint, which then has to be served. New York does not begin a divorce with a petition for dissolution.
The grounds are in Domestic Relations Law § 170. A frequently used ground is DRL § 170(7): one spouse states under oath that the marriage has, for at least six months, been irretrievably broken down. On that ground, the court will not sign a judgment until the financial issues and any issues involving children have been resolved or decided and appear in the judgment. Other grounds are also in § 170.
Once the action is commenced, automatic orders under Domestic Relations Law § 236(B) apply. The plaintiff must serve the automatic orders with the summons. They bind the plaintiff when the summons is filed and the defendant when the orders are served with the summons. Subject to stated exceptions, such as the usual course of business, customary household expenses, and reasonable counsel fees, they bar either spouse from transferring, encumbering, or concealing property; withdrawing from or borrowing against retirement accounts; incurring unreasonable debt; removing the other spouse or the children from existing health insurance; and changing life-insurance beneficiaries. Existing life, auto, homeowners, and health coverage must be maintained (DRL § 236(B)(2)(b)). The statute states the scope and the exceptions. They should be read in the particular matter rather than treated as a short checklist.
Residence under Domestic Relations Law § 230 can also affect whether a New York court may hear the case. Those facts have to be reviewed in the particular household. Additional statewide context is on the Westchester divorce and White Plains divorce pages.
The plaintiff must file a Request for Judicial Intervention no later than 45 days after the summons is served on the defendant, or within 120 days if both parties file a notice of no necessity (22 NYCRR 202.16(d)). The RJI leads to assignment of a Supreme Court justice, and that assignment starts the court-supervised timetable discussed next.
Preliminary conference
Uniform Rule 22 NYCRR § 202.16 governs many procedures in contested Supreme Court matrimonial actions. Under that rule, the court is to order a preliminary conference to be held within 45 days after the action has been assigned. Both parties must personally be present in court at the conference.
The order scheduling the conference lists papers the parties must exchange no later than 10 days before it, unless the court directs otherwise. These include sworn statements of net worth in the official form, which must also be filed with the court no later than 10 days before the conference, along with recent pay stubs, three years of tax returns, and account statements. The Statement of Net Worth is a sworn inventory of income, assets, and liabilities. It is not itself a final determination of what is marital or what anything is worth.
At the conference the court may take up, among other subjects, applications for temporary relief, the scope of financial disclosure, simplification of the issues, and a timetable for completing discovery. The uniform rule provides that disclosure is to be completed and a note of issue filed within six months from the start of the conference, unless the court shortens or extends that period in light of the case. Those time frames are rules the court can adjust. They are not a guarantee of when a particular Westchester case will be finished.
Discovery
After commencement, and on the schedule set at the preliminary conference or by later order, each side may obtain information about the issues in dispute. Typical tools include demands for documents, depositions, subpoenas to third parties, and updated or supplemental statements of net worth if material facts have changed. The court may also address electronically stored information and limits on the number or length of certain discovery devices, as the uniform rules provide, unless the parties stipulate or the court orders something different.
When the value or character of an asset is genuinely in question, the court may allow, or in some situations appoint, professionals such as appraisers or forensic accountants. Using a professional is a case-specific decision. It does not, standing alone, determine the result. More complex estates are discussed on the high-net-worth divorce page.
Discovery is a means of building a record. Incomplete or delayed disclosure can have consequences the court is authorized to address. What is appropriate in a given case depends on the facts and on the court’s orders.
Motions
Either party may ask the court, by motion, to decide a discrete question before trial. In a matrimonial action those applications often include requests for temporary, or pendente lite, relief — for example temporary maintenance, temporary child support, temporary custody or parenting time, exclusive occupancy of a residence, or interim counsel fees. The uniform rule expressly contemplates that applications for pendente lite relief, including interim counsel fees, may be among the matters considered in connection with the preliminary conference.
A motion is decided on the papers and, when the court requires it, after argument. It is not a trial of the entire case. The showing the court expects, and the relief it can grant, are set by statute, the uniform rules, and the record presented. No particular motion is required in every contested divorce, and no particular outcome should be assumed.
Temporary support and custody
Temporary maintenance and temporary child support, when awarded, are interim provisions. They are intended to address circumstances while the action is pending. They are not the final maintenance or child support figures in the judgment, which are decided later by agreement or after trial, under the statutes that apply to a final award.
Temporary custody and temporary parenting time, when the court is asked to address them, are also interim. The standard remains the best interests of the child. A temporary arrangement can matter as a practical matter, and the child’s current circumstances may be relevant evidence later. A temporary order does not, by itself, lock in a final custody result or require a 50/50 calendar. The child custody and parenting time page discusses the standard in more detail.
If a family-offense, custody, or support petition is brought in Family Court rather than as part of the divorce, Family Court still cannot grant the divorce itself. Westchester Family Court currently sits at 111 Dr. Martin Luther King Jr. Boulevard, White Plains; at 131 Warburton Avenue, 3rd floor, Yonkers; and at 26 Garden Street, 3rd floor, New Rochelle. Which location hears a particular matter depends on the case. Issues that are part of the Supreme Court divorce are often decided in that action.
Trial
Issues that have not been resolved by agreement or decided earlier may be tried. In Westchester, that trial is held in Supreme Court at the Daronco Courthouse. A trial is an evidentiary proceeding before the court. The parties may present testimony and exhibits, and the court makes findings and issues a decision on the open questions.
Equitable distribution, maintenance, child support, and custody are tried to the court, not to a jury. Domestic Relations Law § 173 preserves a right to trial by jury on the issues of the grounds for granting the divorce. When the only ground is DRL § 170(7), the sworn statement of irretrievable breakdown generally leaves little about grounds to try. Whether that right is invoked, and how it interacts with the remainder of the case, depends on the pleadings and the circumstances. It is not a general rule that a jury will decide property, support, or custody.
Equitable distribution, if it is tried, follows Domestic Relations Law § 236(B). The court first classifies property and then distributes marital property equitably. Equitable distribution is not community property, and it is not a rule that each spouse must receive half. The marital residence is often a central asset, along with pensions, deferred compensation, and any closely held business; among the statutory factors is a custodial parent's need to occupy or own the marital residence. Separate property is generally not divided, and it can lose that status if commingled. An increase in the value of separate property is marital to the extent it is due to the other spouse's contributions or efforts.
A case may be resolved by a written agreement at any stage, including after a trial has begun. When every remaining issue is resolved, the settlement can often be submitted to the court for an uncontested judgment. That path is often more efficient when the issues are resolved. It is not a reduced fee.
After the issues are resolved or decided, the court may sign a judgment of divorce. Until that judgment, the marriage has not been dissolved, even if temporary orders are already in place.
Requesting a consultation
Time with Gregory Salant can be booked through the contact page or at (914) 683-2500. Confidential details belong in the conference, not in an opening email. Contacting the firm does not create an attorney-client relationship.
Useful materials, when they exist, include papers already served or filed, any existing orders or agreements, a recent tax return, statements for accounts and debts, and, if children are involved, a short description of the present parenting arrangement and school situation.
Schedule a consultation · (914) 683-2500
Gregory Salant, Partner, Harold, Salant, Strassfield & Rotbard, LLP
81 Main Street, Suite 205, White Plains, NY 10601
(914) 683-2500 · gsalant@haroldsalant.com
Frequently asked questions
Where is a contested Westchester divorce filed?
In the New York State Supreme Court for Westchester County, at the Daronco Courthouse, 111 Dr. Martin Luther King Jr. Boulevard, White Plains. Family Court, Town Court, Village Court, and City Court cannot grant a divorce.
How long does a contested divorce take?
There is no fixed period. Uniform Rule § 202.16 sets default time frames, including a preliminary conference after the case is assigned and a six-month disclosure schedule from that conference, but the court may shorten or extend those periods. How long a particular case takes depends on the issues, the disclosure required, and the court’s calendar. No duration should be assumed.
Is a temporary support or custody order the final result?
No. Temporary, or pendente lite, provisions are interim. Final support and custody are decided by agreement or after trial. Temporary custody is judged by the best interests of the child; it does not automatically become the permanent arrangement and does not require equal time.
Will a jury decide property, support, or custody?
Ordinarily, no. Those issues are tried to the court. Domestic Relations Law § 173 addresses a jury trial on the issue of grounds for the divorce, which is a narrower question.
How is a contested divorce different from an uncontested divorce?
In an uncontested divorce, the issues that have to be decided have already been resolved in writing. In a contested case, one or more of those issues remains in dispute and is litigated through the stages described above, unless and until the parties reach an agreement. An agreed case is often more efficient when the issues are resolved. It is not a reduced fee.
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