Once I Retain A Matrimonial Lawyer In New York Do I Need To Go Immediately To Court?

Author: Michael L. Fried, Esq.

Once you have retained a matrimonial lawyer, the next step will be for the attorney and client to discuss the appropriate course of action. Not every case immediately belongs in a courtroom. In some instances, it might be appropriate for the attorney to send a "first letter" to the other spouse to advise him or her that the attorney has been retained. The "first letter" is an inoffensive letter that would state the following:

"Please be advised that your wife, _________, has retained my office in connection with the marital difficulties which you are presently experiencing.

It is your wife's desire to seek an amicable resolution of all outstanding marital and financial issues. Toward that end, I would appreciate your arranging for you or your attorney to communicate with me promptly so that a conference to discuss the outstanding issues may be arranged at a mutually convenient date and time.

Thank you for your anticipated cooperation and courtesy."

The objective of sending the "first letter" is to inform the other side that an attorney is involved in the case. After the letter is sent, the next step would be for the attorney to work with the client to prepare the Statement of Net Worth which is the most important document that is prepared in a matrimonial proceeding. Once both parties exchange their sworn Statements of Net Worth, a four (4) way meeting (a meeting between the parties and their attorneys) can be conducted in an effort to resolve the matter quickly without court intervention.

In other instances, a "first letter" may not be appropriate. For example, if one spouse is taking all of the funds out of the joint accounts, it will be necessary to act swiftly and decisively by commencing an action for divorce which is accomplished by the filing of a summons and complaint in the County Clerk’s office. Once the summons and complaint is served upon the spouse, he or she is prohibited from transferring, liquidating and moving assets during the pendency of the divorce proceeding unless it is in the ordinary course of business or to pay counsel fees. These prohibitions are attached to the summons and constitute "Automatic Orders" of the Court as follows:

NOTICE: Pursuant to Domestic Relations Law §236(B)(2)(b), the following automatic Order of the Supreme Court of the State of New York is in full force and effect:

(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by Order of the Court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorneys’ fees in connection with this action; and,

(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401(k) accounts, profit-sharing plans, Keogh accounts or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further Order of the Court; and,

(3) Neither party shall incur unreasonable debts hereafter including, but not limited to, further borrowing against any credit line secured by the family residence, further encumbrancing any assets or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses or for reasonable attorneys’ fees in connection with this action; and,

(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect; and,

(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners’ and renters’ insurance policies in full force and effect.

The foregoing automatic Order shall be binding upon the Plaintiff in this matrimonial action immediately upon the filing of this Summons (or Summons and Verified Complaint), and binding upon the Defendant in this matrimonial action immediately upon the service of this Summons (or Summons and Verified Complaint) with this automatic Order.

The foregoing automatic Order shall remain in full force and effect during the pendency of this matrimonial action unless terminated, modified or amended by further Order of the Court upon motion of either party or upon written agreement between the parties duly executed and acknowledged.

Finally, there may be instances in which one spouse refuses to pay temporary support by terminating the other spouses access to credit cards, failing to maintain the status quo by refusing to pay weekly or monthly direct support or simply failing to pay household bills. Under these circumstances, it would be necessary to proceed immediately into Court and file a motion for temporary support requesting that the other spouse pay temporary child support, temporary maintenance (alimony), the mortgage and carrying charges on the marital residence.

We represent individuals in abusive and deteriorating marriages who need to move on with their lives...If you have questions that need answers about your particular matter herein in New York, we invite you to call our office to schedule an appointment for a consultation.