who is the Plaintiff in a divorce? In every divorce, there are two sides: the plaintiff and the defendant. The plaintiff must prove that he or she was legally married to the other party and that grounds exist for the divorce. The defendant must show that they were not legally married to the plaintiff and that grounds do not exist for the divorce.
The plaintiff is usually the one who files for a divorce, but it can be the defendant as well. In some cases, both parties will file for a divorce. This does happen more often when the marriage has been long-term and when there are children involved. When this happens, each parent may have different reasons for filing for a divorce.
- If you want to know if your spouse wants a divorce, then ask them directly. You don’t need to worry about what their reason might be because you’ll find out soon enough.
- Divorce is a difficult time for everyone involved. If you’ve decided to get a divorce, then you’ll need to take care of yourself during this stressful period. Here are some tips to help you cope with the situation.
- You may want to consider getting prenuptial agreements drawn up. These agreements state exactly what will happen to your assets if you end up divorcing.
- If you’re the one who filed for the divorce, you should tell your spouse why you did so. It’s important to give them an opportunity to respond before you make any final decisions.
- It’s best to talk to a family law attorney before making any decisions. They can help you understand all of your options and answer any questions that you may have.
- If you decide to go ahead with the divorce, you’ll probably need to hire a lawyer. A good attorney will help you through the process of getting divorced. They’ll also advise you on how much money you’ll need to pay in order to get things started.
The purpose is to inform you of your legal rights and responsibilities. If you need legal advice, please contact a lawyer.
The Plaintiff (the person who files for legal separation) in a Divorce Proceeding
is the person who is seeking to end the marriage. The defendant is the person against whom the divorce action is brought. A divorce proceeding can be initiated by either party, but it cannot be commenced unless one of the parties files an Affidavit of Intention with the court and serves a copy on the other party. If both parties file the affidavit, they are referred to as “complainants” or “petitioners.” If only one party files the affidavit, he/she is referred to as “respondent” or “defendant.”
A divorce may be granted if there has been a separation for at least six months and if the grounds for divorce have not been waived. Grounds include adultery, desertion, cruelty, habitual drunkenness, imprisonment, insanity, non-support, and voluntary abandonment. There must also be no children born during the marriage.
A petition for divorce may be filed within two years after the date of separation. However, if the respondent is absent from the state, the petitioner must wait until the respondent returns before filing the petition.
If the respondent is present in the state, the petitioner may commence the proceedings immediately.
Glossary of Legal Terms
- Division of property In a divorce, each spouse receives their own separate estate. Each spouse owns his/her personal belongings, such as clothing, furniture, jewelry, automobiles, etc., regardless of whether the couple was married when those items were acquired.
In addition to the personal possessions, each spouse will receive any real estate that belongs solely to him/her. This includes houses, apartments, plots, land, buildings, and anything else that is owned outright. Each spouse also receives half of all community property that is owned by the couple. Community property is everything that is shared between husband and wife.
An award of alimony is made to help support a former spouse. Alimony is paid directly to the recipient rather than being added to the property distribution. It is usually awarded for a limited time period, such as five years, and then terminates.
An award of alimony may be ordered under certain circumstances. These include:
- When the marriage lasted less than ten years;
- When the spouses had been separated for more than two years prior to the divorce;
- When one spouse is physically disabled or unable to work due to illness or injury;
- When a spouse is unemployed or underemployed;
- When there is a need for rehabilitation of the economically disadvantaged spouse;
- When there is a lack of sufficient marital assets to provide reasonable living expenses for the spouse;
- Where one spouse is receiving public assistance;
- When it is necessary to prevent the harm that would result if the spouse received nothing;
- To ensure that the spouse does not become destitute;
- When child custody or visitation rights are involved;
- abandonment. A person has deserted you for a continuous period of 12 months or longer, without your consent, and without any valid excuse. You may file for divorce if you think he/she abandoned you.
- adultery is grounds for divorce if the marriage was entered into within ten years of the date of the offense. Adultery is also grounds for annulment if the marriage was contracted by means of fraud or force.
- An affidavit of service is a document signed by a nonparty who has served any paper in a lawsuit such as a summons or a complaint containing an oath that the paper was properly served. When completed it is submitted with this paper. Note: One party may not serve another. This sworn testimony must give the date, hour, place, the way the paper was served, and a detailed description of the person who was given the papers.
- In most states, you can use ADR (alternative dispute resolution) if you want to settle your differences out of court. You might be asked to pay someone to represent you or your company. Or you may agree to go before a judge or jury. Most states also allow you to hire a lawyer to help you present your case.
- Additional relief requested besides a judgment of divorce, including maintenance payments, division of property, responsibility for bills, child support, etc., is known as ancillary relief.
- The answer to the complaint. In divorce proceedings, the answer must be confirmed. . The court takes the property belonging to someone who owes money to someone else who owes him money. Attorney for children: An attorney appointed by a judge to represent a child in custody disputes.
- The burden of proof: A party’s duty of proving the truth of his or his claims
- Caption: Complaint – First Amended Class Action Complaint
Note of issue: On July 29, 2011, the Court entered an order granting Plaintiffs’ Motion to Amend/Correct the caption of the complaint. As a result of this amendment, the caption now reads “First Amended Class Action Complain.”
- In order to sue someone, you must show cause why you should be allowed to do so. You also need to prove that venue is proper.
- In the United States, the amount of money owed as child support may be determined using the guidelines set out by the State or Federal government. These guidelines are called “Child Support Standards” and are also known as “The Law”. There are charts available to help determine how much money should be paid. Clerk: A clerk is someone who works in a courthouse. He or she takes care of filing papers, making copies, and other matters relating to legal proceedings. Cohabiting: Someone who lives with another person of the same gender.
- There are many ways to get divorced, but there is only one way to end a marriage. That is called “divorce.” To start the process, you need to file a complaint with the court. You may want to consult your lawyer before filing the complaint. Your lawyer should explain what happens next. He or she can answer any questions you might have about the process. After you file the complaint, your spouse needs time to respond to it. Sometimes he or she does not even bother answering. Instead, he or she asks for a trial by a judge. At the hearing, both parties present evidence and argue why they think they deserve custody of the children. If you win, then you get a divorce. If you lose, then you go back to square one. Either way, you are done with the legal part of getting a divorce. Now you need to decide how to handle the property issues.
- Counterclaim: A response by the defendant to the plaintiff’s complaint, stating facts that show why the defendant should win or lose the lawsuit. In a divorce case, a counterclaim might state that the defendant was wrongfully accused of being unfaithful, or that the plaintiff committed adultery.
- The county clerk’s office is responsible for maintaining records of births, deaths, marriages, divorces, adoptions, etc., within your jurisdiction. You may obtain information about birth certificates by contacting the local Department of Health or Vital Records Section. For more information regarding obtaining marriage licenses, see our Marriage License Information page. To locate the address of the local Department of Health, contact the state health department.
- Cruel and inhuman treatment is defined as any behavior that endangers someone’s health or safety. Physical abuse includes hitting, kicking, biting, burning, choking, poisoning, suffocating, shaking, throwing objects, beating up, pushing down, restraining, pulling hair, threatening to kill, forcing sex, and using weapons such as guns, knives, clubs, and other dangerous items. Verbal abuse includes yelling, insulting, humiliating, intimidating, ridiculing, belittling, name-calling, swearing, screaming, mocking, threatening, harassing, stalking, being mean, threatening to harm, threatening to commit suicide, and spreading rumors about the victim. Emotional abuse includes ignoring, isolating, controlling, blackmailing, blaming, criticizing, demeaning, threatening, terrorizing, punishing, frightening, and destroying personal property.
In order to obtain a default judgment in a divorce case, the Plaintiff must file a Motion For Entry Of Final Decree Of Divorce. The Court then sets a hearing date to consider whether to enter the final decree. At that point, if the Defendant does not appear, the court may grant the motion and enter the final decree. However, if the Defendant appears, he/she may request a trial de novo.
- In a divorce case, the defendant is the person against whom the divorce action is brought, the deponent is the person’s sworn written testimony, EBT discontinuance is the voluntary end of a lawsuit.
- These terms are often used interchangeably, but there is a difference between them. Disclosure means telling someone what you know about your case, while dissipation refers to using assets for purposes other than paying off bills, such as buying expensive gifts or taking vacations.
- In New York state, there are three different types of divorces. There is a legal separation, a legal separation by mutual consent, and a legal separation by court order. Each of these results in a new marital status called single, separated, divorced, or widowed. For more information about this topic see the article titled “Divorce.”
- Egregious: Very bad; very surprising. Emancipation means being released from parental responsibility. In New York State, child support continues after the age of 21 if the child gets married, joins the armed forces, or becomes self-sufficient.
- Inequity: An unfair division of assets and liabilities. Equitable Distribution: The legal process used to divide marital assets and debts after a couple of divorces.
- The word “evidence” means something that proves or disproves the truthfulness of a claim. In legal proceedings, exhibits are items that are submitted into evidence. For example, if you’re suing someone, your lawyer may submit a copy of the person’s driver’s license or Social Security card as evidence. These items tend to prove or disprove whether the person is actually the owner of the item.
- An expert witness must be qualified by virtue of having specialized knowledge regarding the matter about which he or she is asked to testify. In other words, the witness must possess expertise in some field relevant to the case. For example, if you were suing your neighbor because your dog was killed by his pet parrot, then the owner of the parrot could not serve as an expert witness unless he had been trained to recognize birds. Similarly, a doctor testifying about the cause of death of a patient might need to be qualified as an expert in medicine.
- In court cases, fiduciaries are required to act in accordance with a higher standard than ordinary citizens. Findings of Fact are made after a trial or hearing. Forensics relates to applying a specific field of knowledge, such as medicine, science, or accounting, to legal matters.
- The grounds for divorce include adultery, cruelty, desertion, extreme cruelty, habitual drunkenness, insanity, imprisonment, nonconsummation of marriage, rape, sodomy, voluntary separation without cohabitation, willful neglect, and willful abandonment.
- Hearsay: Testimonial statements offered as proof of facts without personal knowledge of those facts. Generally, hearsay is inadmissible unless there is some exception to the rule.
- In-camera inspection: Trial judges’ private consideration of the evidence. Sensitive information about child custody or corporate records should be considered in camera, not in public.
- The index number is the unique number assigned by the county clerk’s office to each action or proceeding commenced within New York state supreme court. The number is used as a reference point to identify a particular case within the court system.
- The interrogatory asks the other side about their claims, defenses, and theories. An irrevocable breakdown occurs if there is no hope of repairing the relationship within 6 months. A judgment of divorce is granted if both parties agree to end their marriage.
- In a divorce proceeding, the judge decides how much money each parent gets after the couple splits up. For example, if you’re married to a lawyer, you might get half of what he makes. If you want more information about the process, call a local attorney.
- N Notice of Entry – A form given to a person indicating that the court has filed a decision granting or denying a request for a divorce. A copy of the order is also provided to the client. The time to appeal begins after the clerk stamps the notice “filed” on the docket sheet.
Orders are given by courts, and failure to follow them may lead to contempt charges.
- In order to win a lawsuit, you must first file a complaint. Then, if your opponent files suit against you, you may counterclaim and sue them back. You then go to court and argue before a judge or jury about whether you should be allowed to divorce your spouse, and what kind of alimony or child support payments you should receive. Finally, you ask the judge to award you damages for any harm caused by your ex.
- A party seeking a dissolution must file a Petition for Dissolution of Marriage within six months after the date of separation. The court may grant a decree of legal separation if there has been a continuous absence of three consecutive months immediately preceding the filing of the petition. In addition, either spouse may seek a decree of absolute divorce upon showing irreconcilable differences as grounds for the action. Thereafter, a final judgment dissolving the marriage shall be entered unless both parties agree to continue living together under the same roof.
- RJI: A document filed with the court requesting to have a judge assigned. Separated property: Property belonging to one spouse but not the other. It is often sold during separation. Separation: An event in a marriage where one party leaves the home before the divorce.
- A formal document called a “Separation Agreement” is used to settle many aspects of life during marriage. In addition to dividing assets, responsibilities, and finances, it may also include agreements about custody arrangements, visitation rights, and other matters. The parties often sign and acknowledge the agreement by signing a form known as an Acknowledgment Service.
An acknowledgment spouse is a husband or wife. A stipulation is a voluntary agreement between parties on issues related to the divorce proceeding.
- In order to file a divorce action in New York State, you must first go to the County Clerk’s Office. You then need to contact the Supreme Court Clerk’s Office. There, you’ll be told how much money you owe your spouse and what amount he owes you. Then you’ll need to pay both parties before you can get divorced.
- In a contested divorce, both parties disagree about how to divide up the assets and liabilities of the marriage. In some cases, the spouses may agree to share equally in the wealth accumulated during the marriage. However, if the couple does not reach an agreement regarding the distribution of assets and liabilities, a judge must decide what should be done.
- The court may order visitation rights or custody if there is evidence of abuse or neglect by either party. In most cases, however, parents share joint legal and physical custody.
- A writ of habeas corpus is a legal document used to order someone to appear in court. As a result of the writ, the judge orders the defendant to appear in court to answer questions about why he should not be imprisoned.
You must accept service of the divorce papers.
If you know your husband or wife has filed for divorce, don’t try to avoid the service of the divorce papers. You’ll probably get served anyway. Avoiding service won’t help you and might even lead to some bad things. Don’t think you’re going to stop them from divorcing you. Divorce is final once you’ve been served. Your spouse still has legal rights. And if you want to talk to the judge before he makes big decisions about your kids and property, go ahead and serve him too!