According to research, 750,000 divorces occur in the US each year. This number is expected to increase in the coming years. If your spouse has filed for divorce, it’s important to note that they’re the plaintiff while you’re the defendant.
Unfortunately, many people pick sides in such cases. A divorce case cannot be compared to a regular case. In other words, a defendant in a divorce case isn’t the same as a defendant in a criminal case. Pointing fingers at the defendant and “holding them accountable” is an unfair judgment that shouldn’t be made in divorce cases.
As long as there are no accusations of domestic violence or abuse, the defendant should not be considered a “perpetrator.” This is primarily because a marriage can turn sour due to several reasons.
In many cases, the reason doesn’t put one party at blame. Apart from domestic violence and infidelity, partners can also call it quits over conflict, financial problems, lack of compatibility with time, lack of support, or a plethora of other issues. In such cases, one partner cannot be considered the perpetrator while the other is labeled a victim.
More often than not, defendants feel accountable and subconsciously self-sabotage their case. Instead of feeling responsible for the divorce, focus on getting through with it and starting a new future. You shouldn’t feel culpable; remember that the marriage ended because things simply didn’t work out.
Once you achieve this state of mind, you’ll feel prepared to tackle the complexities and intricacies of your case with confidence and level-headedness. In this blog, we’ll walk you through five things you should keep in mind about being a defendant in a divorce case. Continue reading.
1. You Shoulder a Certain Level of Responsibility
As a defendant in a divorce case, you may think that you’ll lose your rights. This is one of the most common misconceptions. Whether you’re a plaintiff or a defendant in a divorce case, your rights will be equal. As highlighted earlier, there are no sides. One party isn’t given preference over the other; they’re both treated as equals.
However, this doesn’t mean you won’t shoulder any responsibility. You will be required to navigate the divorce process with care, thought, and present-mindedness. Make sure you steer clear of complacency or recklessness. We recommend understanding the case and assiduously working through it with your lawyer. As you get a good grasp on the requirements and proceedings, the process will become much easier for you.
For starters, make sure you carefully read the Statement of Claim you have been served. In many cases, defendants adopt a laid-back approach and fail to carefully peruse the divorce papers they have been sent. An “out of sight, out of mind” approach will do more harm than good, even if you’ve hired the best divorce attorney in town. While they’ll assist you with the process, you need to be aware of the details as well.
We suggest reading the claims that have been made and understand what your spouse is requesting from the court. They may be seeking custody of your children, child support, spousal support, and more. You will be required to file the right documents in response. This process is imperative and should be handled with the utmost presence of mind, care, and attention-to-detail.
Sit with your attorney and go over the documents to determine the right way to proceed. In some cases, divorce defendants feel “defeated,” which compels them to watch from the sidelines and remain uninvolved in the process.
We’d like to reiterate that you have equal rights. As a plaintiff, your spouse doesn’t get to make all the decisions. They’re simply considered the plaintiff because they filed the paperwork and started the divorce case. Ultimately, you both will be able to make big decisions regarding the case. If you think you don’t have much of a say, think again. You do. Exercise your right to actively participate in the case to ensure the best possible outcome for yourself and your children.
2.You Cannot Share the Same Lawyer
If you’ve been married for a long time, you and your partner most likely have the same attorney. If you and your spouse have agreed to mutually and respectfully proceed with the divorce, you may feel compelled to share the same lawyer. Many couples prefer this approach, especially if they see eye to eye on a lot of things regarding the divorce.
It’s important to note that you cannot share the same attorney as this would create a conflict of interest. While you may agree with your spouse for the most part and want the best for them, you’re still on opposing sides. To put it simply, your attorney will not be permitted to represent your spouse as well.
If your spouse has already partnered with your family lawyer as a unit, avoid requesting your spouse or the attorney to change their mind. Instead, find a reputable, experienced, and qualified divorce attorney who can build a strong case for you.
3. You May Be Able to Opt for Free Legal Services
If you lack financial stability, you may qualify for free legal support. Look into federally funded programs for subsidized legal support. If you don’t qualify for free legal services, you will have to hire an attorney. In such cases, we suggest taking out a divorce loan instead of partnering with an inexperienced lawyer who could potentially affect the outcome of your case.
There’s a lot at stake in a divorce, especially if both parties are resentful and “holding a grudge,” so to say. As a plaintiff, your spouse will have the right to present their case first before a judge. While this may not sound like much, it’s a major advantage.
The party that presents their case first set the tone for the rest of the divorce proceedings. They have a psychological upper hand, so to say. In some cases, it works. In some cases, it doesn’t. However, avoid taking this risk. Your spouse is most likely hiring an exceptional lawyer. Instead of saving up and partnering with a run-of-the-mill attorney who could sabotage your case, invest in someone you can trust to offer the excellent representation you need.
As your spouse gets the first say in court, your legal team will be able to successfully counter it with a strong defense. Ultimately, you’ll increase your chances of achieving a favorable outcome by partnering with an exceptional divorce lawyer.
We recommend looking into their track record and practice areas before you make your decision. In addition, dig deeper and browse through their reviews. As you invest a sufficient amount of time and energy into the research process, you’ll be able to make an informed decision that pays off.
4. Keep a Close Eye on the Deadlines
As a divorce defendant, keeping up with the deadlines for your case is imperative. If you fail to file your “Response to the Petition,” for example, your spouse may confirm a “Request to Enter Default.”As a result, your voice and leverage will be taken away. In other words, your spouse will be free to proceed as they like without you.
Many divorce defendants are under a lot of pressure, mostly because they don’t want to go through with the divorce. As a result, defendants may become withdrawn and struggle to keep up with each facet and development of the case. Ultimately, you can’t anticipate your state of mind once the proceedings begin.
The case may end up taking a toll on you. If this happens, an experienced, qualified, and empathetic lawyer will provide the support you need. They’ll keep up with the deadlines and keep you in the loop through and through. This is why hiring the right divorce lawyer is imperative. If you’re not in the right state of mind to keep up with everything yourself, you can rely on your attorney to meticulously manage everything and keep your case on track. If you opt for an inexperienced lawyer with a poor work ethic, they may miss out on important deadlines and build a weak case for you.
As a rule of thumb, hire a great lawyer and remain involved in the case just to be on the safe side. If you miss important deadlines, you may become powerless. Unfortunately, there’s very little that can be done in such cases. Your partner may walk away with most of (or all of) what they requested in the divorce settlement, including the marital home, child custody, spousal support, etc. If you have children, meeting deadlines is twice as important. You can’t afford to lose valuable time with your children.
5.Understand How You Can Answer the Divorce Papers
Once you have been served, you have the right to respond in three ways in New York. Here’s a closer look at the response strategies you may use:
- File an “Answer”: As a defendant, you can file an “Answer” with the Supreme Court. This means that the divorce is contested. Your lawyer will draft this for you. We recommend browsing through different response forms to select the right option. It’s important to note that you have 20 days to file an “Answer.” The process isn’t fairly quick, straightforward, or easy by any means. An experienced lawyer will be able to write an “Answer” that helps your case instead of doing more damage.
- Sign the “Affidavit of Defendant”: You also have the option of signing the “Affidavit of Defendant.” In this form, you’ll agree to the divorce instead of contesting it. To make things clearer, you will not disagree with anything that’s requested in the “Summons with Notice” or “Summons and Complaint.” You will proceed with the calendaring process.
- Do Nothing: If you fail to respond, you have essentially defaulted. In some cases, this is accidental. For instance, the defendant may have missed the deadline. However, this is also intentional in a lot of cases. If the defendant doesn’t want to appear in court and go through the arduous and emotionally draining negotiations process, they may never respond.
You should note that default divorces cannot be contested. Your spouse will get everything they asked for. Some people still go through with a default because they don’t have to pay attorney’s fees and court costs. If you default, you will also not be required to provide information regarding your assets and income, including bank statements, tax returns, paystubs, etc.
We recommend weighing the pros and cons to make an informed decision that’s right for you. If you have children, you may end up giving up valuable rights. Understand what’s at stake and proceed carefully.
6. The Judgment Will Not Be Signed Until All Parenting and Financial Matters Are Sorted
A divorce is taken extremely seriously in the US. If you think you’ll be able to delay the process of working out parenting and financial issues, you may want to think again. The judgment will not be signed until all matters are sorted.
If you’re struggling to reach a decision, we recommend opting for Alternative Dispute Resolution (ADR). You and your spouse will work with a professional to find common ground and ultimately finalize a decision. ADR mostly takes place outside of court so you don’t have to worry about putting up with more court proceedings.
Choose the right ADR process accordingly. You can opt for divorce mediation or collaborative family law. It is, however, important to note that ADR isn’t presented as an option if there’s a history of domestic violence or abuse. Even if one of the two spouses hasn’t experienced domestic violence or abuse but fears that it may occur, ADR will be taken away as an option.
7. Custody, Visitation, and Child Support Are Only Decided for Children of the Marriage
Under New York law, there’s a clear distinction between “children of the marriage” and “all children.” You can only make decisions regarding custody, visitation, and child support for “children of the marriage,” i.e., children who were born/adopted by you and your partner before or during the marriage.
For children of the marriage who are 20 years old or younger, you and your partner will be required to finalize all decisions regarding child support before the divorce is granted. For children of the marriage who are 17 years old or younger, all decisions pertaining to custody and visitation must be finalized before the divorce is granted.
There’s no leniency regarding these decisions. Make sure you take them seriously and discuss how you’d like to proceed with your lawyer in detail. Your children’s happiness, health, well-being, safety, and future should be your top priority as you navigate the divorce. Make wise, informed decisions that ensure the best possible outcome for your children. As a parent, you’ll know how to go about that best.
Recommended Read: New York State Child Custody Laws
8. Take Your Mental Health Into Account
As stated earlier, a divorce can be taxing for both parties. As you navigate the process, you’ll be taken aback by its intensity. In our experience, a lot of spouses are unprepared for just how unsettling and emotionally debilitating the process can get. Ultimately, your mental health can suffer.
We strongly recommend taking your needs into account and relying on healthy coping mechanisms that help you get through the process. Once you’re done, you can start over and begin the healing process. However, this isn’t easy to do while you’re in the thick of things. A divorce demands a lot from both parties: financially, mentally, emotionally, and even physically. As you visit the courtroom back and forth, check in with your lawyer multiple times during the day, work on negotiations, and cope with the fragmentation of your marriage, you may find yourself struggling.
If needed, consult a therapist who can provide the comfort, healing, guidance, and relief you need as you jump through the hoops of the divorce process. In some cases, spouses also benefit from attending divorce therapy. This is a final attempt at addressing conflict in the relationship. If often works, it often doesn’t. In case of the latter, you will be able to reach a healthier point with your partner as there will be a professional involved in the discussions you have with them.
You don’t have to worry about the conversation taking a turn for the worse. A mediator will help keep things on track and prompt a conversation that rests on the foundation of respect, empathy, and honesty.
At Elite Legal Services of NY, we’re committed to making the divorce process easier for both plaintiffs and defendants. The decision to proceed with a divorce can be extremely challenging for plaintiffs.
Our professional process servers assist you with serving court papers in NY. We make the process more streamlined, efficient, smooth, hassle-free, and structured. We also assist divorce defendants with all the paperwork involved.
Whether you’re looking for legal processing services in New York or need help responding to the “Summons and Complaint” letter, reach out to us today. You can also explore our testimonials to make an informed decision.