My boyfried has been separated for a year and now is filing for divorce in New York. He said that he paid the lawyer the retainer two weeks ago. He told me that the ex-wife was supposed to be served last week but he did not hear anything from the lawyer. He is saying that she is going to served and then the divorce papers will be filed. He believes that the divorce will be uncontested since they were only married for six months and they do not have kids or property together. This will be a no fault divorce. I have the following questions: Can she contest this divorce? Why is it taking so long to serve? (what is the usual time frame for an uncontested divorce to be completed? Is this the usual procedure i.e. first you serve and then you file with court? Is the lawyer doing this because he does not know if the divorce will be contested? Thanks

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Originally Posted by Ira33

My boyfried has been separated for a year and now is filing for divorce in New York. He said that he paid the lawyer the retainer two weeks ago. He told me that the ex-wife was supposed to be served last week but he did not hear anything from the lawyer. He is saying that she is going to served and then the divorce papers will be filed. He believes that the divorce will be uncontested since they were only married for six months and they do not have kids or property together. This will be a no fault divorce. I have the following questions: Can she contest this divorce? Why is it taking so long to serve? (what is the usual time frame for an uncontested divorce to be completed? Is this the usual procedure ie first you serve and then you file with court? Is the lawyer doing this because he does not know if the divorce will be contested? thanks

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I'm in NY.

Has your boyfriend been LEGALLY separated or just living apart for a year? If they were LEGALLY separated that agreement is grounds for divorce one year after the agreement was filed.

NY accepts irreconcilable differences as grounds for divorce so (technically) all divorced as "no fault." This was not the case when there were very specific grounds.

You refer to her as his ex-wife - ?

Here's how it works - the client pays the retainer, signs the retainer agreement, the papers are prepared and FILED with the Court Clerk. They are then served on the other party. Depending on the Attorney's and Court's schedules this can happen in a day or two or longer. How long does it take to serve? Depends who is serving, how difficult it is to reach the other party, how soon the papers get placed in the hands of the process server.

Yes, of course she can contest the divorce IF there is no separation agreement. Why do you refer to it as an uncontested divorce if she hasn't been served and her time to respond hasn't passed? At this point it would appear nobody knows if she's going to contest it. The way the papers are prepared, filed and served have nothing to do with whether the matter will be contested - it's always the same, same time frames, same procedure.

How long does it take to get the divorce? I've seen three months, I've seen much longer. Again, it depends on the Court's schedule, the Attorney's schedule, whether an Attorney appears and withdraws, whether no Attorney appears, many factors.

Don't you believe what your boyfriend is telling you, are you unsure about the Attorney, something else?

JudyKayTee thanks for your answer. No there was no legal separation. I thought they use different forms for contested or uncontested divorce so this clarifies it for me. Yes her is the ex. I guess I am trying to see if my boyfriend is telling me the whole truth. It has been two weeks since he paid the retainer. How long does it take for the lawyer to get the papers together and file with the court? Is two weeks too long or is this a normal timeframe for the lawyer to get the paperwork together. Thanks

Unless there is an emergency there is really no hurry here. Are you in a hurry to get married? Or do you just not want to be the "other woman".

NYS offers a number of information booklets that will help with uncontested divorces. You can find them here:
Divorce Resources

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Originally Posted by Ira33

JudyKayTee thanks for your answer. No there was no legal separation. I thought they use different forms for contested or uncontested divorce so this clarifies it for me. Yes her is the ex. I guess i am trying to see if my boyfriend is telling me the whole truth. It has been two weeks since he paid the retainer. How long does it take for the lawyer to get the papers together and file with the court? Is two weeks too long or is this a normal timeframe for the lawyer to get the paperwork together. thanks

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Okay, now I've got a more clear picture.

He is starting the divorce from "scratch," so to speak - other than in a year I'm sure many of the other issues have resolved themselves (who takes what, who goes, who stays). No, same paperwork - then the Defendant (in this case, his wife) either responds (contested) or doesn't respond (uncontested) or an Attorney responds and drops out and it goes forward. Very few divorces actually go to trial. Quite frankly, in NY we'd have to sell our souls to pay the legal fees of a trial divorce!

Two weeks - hard to say. The paperwork isn't terribly complicated but someone has to sit down and do it, get it to Court, get an Index Number, arrange for service, all that stuff, before "she" is served.

Did he mention a dollar figure for the retainer? In my area of NY I don't know anyone who will BEGIN a divorce for less than $3,000 - and most are asking $5,000 as a retainer.

I don't want you to post the info and I can't give you my email address but I can access Court records - I'm an investigator.

At this point I'd be trusting - for another week. Then I'd begin asking very specific questions (and I'd be happy formulating them for you).

I should also point out that aside from the legal issues, if you don't trust that your boyfriend is being honest with you, your relationship doesn't have much of a future.

JudyKayTee thanks for your answer. He paid $3500 he said for the retainer. I have seen the retainer proposal (before signed). I told him today that the divorce papers have to be filed with the court and then served (based on your answer and other internet research I've done before). He said that he was under the impression that she has to sign before the papers are filed and that he will check with his lawyer tomorrow. If you have any other suggestions of what to ask please let me know as I want answers this week from him.
ScottGem I have trusted in the past people and they did not deliver so now I want to do my homework.

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Originally Posted by Ira33

JudyKayTee thanks for your answer. He paid $3500 he said for the retainer. I have seen the retainer proposal (before signed). I told him today that the divorce papers have to be filed with the court and then served (based on your answer and other internet research i've done before). He said that he was under the impression that she has to sign before the papers are filed and that he will check with his lawyer tomorrow. If you have any other suggestions of what to ask please let me know as i want answers this week from him.
ScottGem I have trusted in the past people and they did not deliver so now i want to do my homework.

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No, there's a misunderstanding about the signing part. He MIGHT be talking about a Separation Agreement which has been worked out and both need to sign but that's pretty far fetched and wouldn't make sense here.

There is nothing she has to sign. It's the same as any other lawsuit. I, for example, wouldn't say, "I'm going to sue you now so sign here" and then go to the Courthouse and file the complaint and then serve you.

The dollar amount of the retainer sounds right.

I don't know that I wouldn't trust him just yet - some of the procedures are difficult to understand, particularly if you don't have a legal background. NY also now has an expedited process. A Hearing Officer/Attorney brings both parties in for a discussion (I have no idea about what) before negotiations begin. Seems like a waste of time to me but...

I wouldn't cross examine him just yet. I would ask who will be serving the papers. The answer SHOULD be a private process server and your boyfriend pays for the service. I think you are very smart to be cautious, protect yourself, just don't take it to the extreme - yet.

Let me see if I think of anything else.

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Originally Posted by Ira33

ScottGem I have trusted in the past people and they did not deliver so now i want to do my homework.

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I'm not saying you shouldn't do your homework. And I can appreciate your caution, especially if you have been burned before. But if you are going to constantly mistrust him your relationship is not likely to work.

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Originally Posted by ScottGem

I'm not saying you shouldn't do your homework. And I can appreciate your caution, especially if you have been burned before. But if you are going to constantly mistrust him your relationship is not likely to work.

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And I do agree here - I think it is very wise to be cautious.

JudyKayTee I am a little confused here. My boyfriend has retained an attorney. Wouldn't the attorney hire the server to serve and then charge my boyfriend for the service? Therefore my boyfriend will not really know who is serving. I see what you say for the separation agreement. But why would they need that? They do not have kids. They do not have property together. Then do not have common bank accounts. She never left her apartment. She never left her job. He just moved in for six months and then moved out.
I guess my boyfriend thinks that if it is no faul divorce then they both sign and that is the end of it. (which by what you say it's not true)

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Originally Posted by Ira33

JudyKayTee i am a little confused here. My boyfriend has retained an attorney. Wouldn't the attorney hire the server to serve and then charge my boyfriend for the service? Therefore my boyfriend will not really know who is serving. I see what you say for the separation agreement. But why would they need that? They do not have kids. They do not have property together. Then do not have common bank accounts. She never left her apartment. She never left her job. He just moved in for six months and then moved out.
I guess my boyfriend thinks that if it is no faul divorce then they both sign and that is the end of it. (which by what you say it's not true)

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I must have worded that wrong. In some area the Sheriff serves the papers. If so it can take a long time, because the Sheriff serves everything from divorces to evictions. I would ask if a PRIVATE server will serve - and, yes, your boyfriend would pay either way.

They don't need a Separation Agreement other than to come to an agreement as to all of the terms (joint debts, claims against the other's estate, anything that might EVER be an issue) and then that is entered with the Court. That way your boyfriend can't ask for a divorce, ask that she make his car payments, she doesn't appear, she gets stuck with the payments. Do you know what I mean?

In one respect they both sign IF they come to agreeable terms. Yes, it's that simple... but he still has to go through the process of he serves her, she answers or doesn't, whatever follows.

I always sort of talk about the "what if" in the event things don't go smoothly. Of course, she could also be in total agreement, get served, respond, each releases the other from anything/everything - and it's over.

Did I explain that all right?

This is out in Long Island. Does the sherrif do it? Will my boyfriend pay directly or the lawyer pays from the retainer?

So what you are saying is that maybe the lawyer is trying to have her sign an agreement first and then file for the divorce? From what I know they do not have any debt together. He used to pay her mortgage as long as he was staying with her. The lawyer told him that he paid enough already.

I doubt that things will go smoothly because she entered the marriage for money (he found out later) and probably she will not leave until she gets paid.

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Originally Posted by Ira33

This is out in Long Island. Does the sherrif do it? Will my boyfriend pay directly or the lawyer pays from the retainer?

So what you are saying is that maybe the lawyer is trying to have her sign an agreement first and then file for the divorce? From what i know they do not have any debt together. He used to pay her mortgage as long as he was staying with her. The lawyer told him that he paid enough already.

I doubt that things will go smoothly because she entered the marriage for money (he found out later) and probably she will not leave until she gets paid.

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No, just the opposite. Before ANYTHING happens she needs to be served UNLESS there is an open line of communication and she and your boyfriend (with Attorneys) can work out the deails. I don't believe that is the case here. I've seen that happen when both parties go to see the Attorney together.

Disbursements are usually different from the retainer.

If she is/was in it for the money she's not going to go quietly; therefore, she will get served, she will (or won't) appear by Attorney and the matter will go forward.

OK thanks. I have asked him to show me the retainer proposal signed. He swears that he does not go for separation agreement but for divorce and that he does not know exactly what his lawyer is doing. He said he will talk to the lawyer tomorrow. I told him to ask for the index number.
Things sound a little fishy to me. He is an engineer, he runs a company and he does not know what the lawyer is doing? And the lawyer does not explain to him? I will keep you posted.

Thanks. Anything I can do, let me know.

JudyKayTee he is insisting that the lawyer told him that either way is correct meaning that they can serve the ex-wife before filing. This sounds wrong to me. What do you think?

I never say never - but not to my knowledge. Let me take a look at NYS law.

I'm divorced. I KNOW I had to get an Index Number first. The Attorney told me that otherwise I could "pretend serve," using the legal system to bludgeon my husband over the head, using threats and not actions.

EDIT: Here's what I find on 3 sites (I haven't had time to look at the Law): "Step 1: Your divorce action officially begins when you or your attorney purchase an index number and file the summons with the County Clerk's office ($210 filing fee).

Step 2: Your spouse must then be served with a copy of the summons by being personally given the document. It is important to determine where your spouse is located. If he or she lives in New York State, the server must be a resident of New York State, over eighteen years of age, and cannot be a “party to the action” (this means YOU MAY NOT serve your spouse with the divorce papers)."

Sounds like index number first and service second.

This is what I found on the internet too. Two are the possible scenarios. 1) He is lying 2) they are doing a separation agreement instead? I do not know what to think anymore. He said that the lawyer said "if you need an index number i will get it for you". Doesn't this sound like nonsense or what.

Quite frankly, it sounds like nonsense. If it's a separation agreement no one needs to be served. The parties all sit down and hammer out an agreement. They aren't adversarial.

I was giving him the benefit of the doubt. I no longer am.

If she is to be served with ANYTHING the Summons/Complaint must be filed with the Court first - thus, an Index Number.